[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 32
National Defense
________________________
Parts 191 to 399
Revised as of July 1, 2019
Containing a codification of documents of general
applicability and future effect
As of July 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Publishing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Publishing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 32:
SUBTITLE A--Department of Defense (Continued)
Chapter I--Office of the Secretary of Defense
(Continued) 5
Finding Aids:
Table of CFR Titles and Chapters........................ 1187
Alphabetical List of Agencies Appearing in the CFR...... 1207
List of CFR Sections Affected........................... 1217
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 191.1 refers
to title 32, part 191,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2019), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Publishing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Publishing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.govinfo.gov. For
more information, contact the GPO Customer Contact Center, U.S.
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2019
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: Parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2019.
The current regulations issued by the Office of the Secretary of
Defense appear in the volumes containing parts 1-190 and parts 191-399;
those issued by the Department of the Army appear in the volumes
containing parts 400-629 and parts 630-699; those issued by the
Department of the Navy appear in the volume containing parts 700-799,
and those issued by the Department of the Air Force, Defense Logistics
Agency, Selective Service System, Office of the Director of National
Intelligence, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office (National Archives and
Records Administration), National Security Council, Office of Science
and Technology Policy, Office for Micronesian Status Negotiations, and
Office of the Vice President of the United States appear in the volume
containing part 800 to end.
For this volume, Stephen J. Frattini was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez.
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This volume contains parts 191 to 399)
--------------------------------------------------------------------
SUBTITLE A--Department of Defense (Continued)
Part
chapter I--Office of the Secretary of Defense (Continued)... 191
[[Page 3]]
Subtitle A--Department of Defense (Continued)
[[Page 5]]
CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
--------------------------------------------------------------------
SUBCHAPTER M--MISCELLANEOUS
Part Page
191 The DoD Civilian Equal Employment
Opportunity (EEO) Program............... 9
192 Equal opportunity in off-base housing....... 16
193 Highways for national defense............... 24
194 [Reserved]
195 Nondiscrimination in federally assisted
programs of the Department of Defense--
effectuation of Title VI of the Civil
Rights Act of 1964...................... 26
196 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 36
197 Historical research in the files of the
Office of the Secretary of Defense (OSD) 53
199 Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS)............ 65
202 Restoration Advisory Boards................. 379
203 Technical Assistance for Public
Participation (TAPP) in defense
environmental restoration activities.... 386
204 User fees................................... 396
207 [Reserved]
208 National Security Education Program (NSEP)
and NSEP service agreement.............. 402
209 [Reserved]
210 Enforcement of State traffic laws on DoD
installations........................... 408
211 Mission compatibility evaluation process.... 409
212 Procedures and support for non-Federal
entities authorized to operate on
Department of Defense (DoD)
installations........................... 415
213 Support for non-Federal entities authorized
to operate on DoD installations......... 420
[[Page 6]]
216 Military recruiting and Reserve Officer
Training Corps Program access to
institutions of higher education........ 422
217 Service academies........................... 429
218 Guidance for the determination and reporting
of nuclear radiation dose for DoD
participants in the atmospheric nuclear
test program (1945-1962)................ 442
219 Protection of human subjects................ 447
220 Collection from third party payers of
reasonable charges for healthcare
services................................ 465
221 DOD Identity Management..................... 477
222 DOD Mandatory Declassification Review (MDR)
Program................................. 482
223 DOD Unclassified Controlled Nuclear
Information (UCNI)...................... 486
226 Shelter for the homeless.................... 494
228 Security Protective Force................... 495
229 Protection of archaeological resources:
Uniform regulations..................... 498
230 Financial institutions on DoD installations. 511
231 Procedures governing banks, credit unions
and other financial institutions on DoD
installations........................... 514
232 Limitations on terms of consumer credit
extended to service members and
dependents.............................. 547
233 Federal Voting Assistance Program (FVAP).... 556
234 Conduct on the Pentagon Reservation......... 566
236 Department of Defense (DoD)--Defense
Industrial Base (DIB) cyber security
(CS) activities......................... 571
238 DoD assistance to non-government,
entertainment-oriented media productions 579
239 Homeowners Assistance Program--application
processing.............................. 595
240 DOD Information Assurance Scholarship
Program (IASP).......................... 604
241 Pilot program for temporary exchange of
information technology personnel........ 609
242 Admission policies and procedures for the
School of Medicine, Uniformed Services
University of the Health Sciences....... 613
243 Department of Defense ratemaking procedures
for Civil Reserve Air Fleet contracts... 618
245 Plan for the Emergency Security Control of
Air Traffic (ESCAT)..................... 623
246 Stars and Stripes (S&S) newspaper and
business operations..................... 633
247 Department of Defense newspapers, magazines
and civilian enterprise publications.... 646
[[Page 7]]
250 Withholding of unclassified technical data
from public disclosure.................. 665
251 National Language Service Corps (NLSC)...... 673
252 Professional U.S. Scouting Organization
operations at U.S. military
installations overseas.................. 676
253 Assignment of American National Red Cross
and United Service Organizations, Inc.,
employees to duty with the Military
Services................................ 679
257 Acceptance of service of process............ 681
259 Uniform relocation assistance and real
property acquisition for Federal and
federally-assisted programs............. 681
260 Vending facility program for the blind on
DoD-controlled Federal property......... 682
263 Traffic and vehicle control on certain
Defense Mapping Agency sites............ 687
264 International interchange of patent rights
and technical information............... 689
268 Collecting and reporting of foreign
indebtedness within the Department of
Defense................................. 692
269 Civil monetary penalty inflation adjustment. 696
272 Administration and support of basic research
by the Department of Defense............ 697
273 Defense materiel disposition................ 699
274 Regulations governing competitive bidding on
U.S. Government guaranteed military
export loan agreements.................. 810
275 Right to Financial Privacy Act.............. 811
277 Implementation of the Program Fraud Civil
Remedies Act............................ 813
281 Settling personnel and general claims and
processing advance decision requests.... 828
282 Procedures for settling personnel and
general claims and processing advance
decision requests....................... 829
283 Waiver of debts resulting from erroneous
payments of pay and allowances.......... 837
284 Waiver procedures for debts resulting from
erroneous payments of pay and allowances 839
SUBCHAPTER N--FREEDOM OF INFORMATION ACT PROGRAM
286 DoD Freedom of Information Act (FOIA)
Program................................. 849
286h Release of acquisition-related information.. 863
SUBCHAPTER O--PRIVACY PROGRAM
310 Protection of privacy and access to and
amendment of individual records under
the Privacy Act OF 1974................. 868
[[Page 8]]
311 Office of the Secretary of Defense and Joint
Staff Privacy Program................... 1009
312 Office of the Inspector General (OIG)
Privacy Program......................... 1031
313 The Chairman of the Joint Chiefs of Staff
and the Joint Staff Privacy Program..... 1039
314 Defense Advanced Research Projects Agency,
Privacy Act of 1974..................... 1040
315 Uniformed Services University of Health
Sciences, Privacy Act of 1974........... 1040
316 Defense Information Systems Agency Privacy
Program................................. 1040
317 DCAA Privacy Act Program.................... 1045
318 Defense Threat Reduction Agency Privacy
Program................................. 1049
319 Defense Intelligence Agency Privacy Program. 1059
320 National Geospatial-Intelligence Agency
(NGA) Privacy........................... 1068
321 Defense Security Service Privacy Program.... 1080
322 National Security Agency/Central Security
Services Privacy Act Program............ 1092
323 Defense Logistics Agency Privacy Program.... 1119
324 DFAS Privacy Act Program.................... 1126
326 National Reconnaissance Office Privacy Act
Program................................. 1134
327 Defense Commissary Agency Privacy Act
Program................................. 1155
329 National Guard Bureau Privacy Program....... 1169
SUBCHAPTER P--OBTAINING DOD INFORMATION [RESERVED]
[[Page 9]]
SUBCHAPTER M_MISCELLANEOUS
PART 191_THE DOD CIVILIAN EQUAL EMPLOYMENT OPPORTUNITY (EEO)
PROGRAM--Table of Contents
Sec.
191.1 Purpose.
191.2 Applicability and scope.
191.3 Definitions.
191.4 Policy.
191.5 Responsibilities.
191.6 Procedures.
191.7 Civilian EEO program staff.
191.8 Defense equal opportunity council and EEO boards.
191.9 Information requirements.
191.10 Effective date.
Authority: 5 U.S.C. 301, 10 U.S.C. 113.
Source: 53 FR 30990, Aug. 17, 1988, unless otherwise noted.
Sec. 191.1 Purpose.
This part:
(a) Implements the DoD Humans Goals Charter; 29 U.S.C. 791, 792,
793, and 795; guidance from the Equal Employment Opportunity Commission
(EEOC); guidance from the Office of Personnel Management (OPM);
Executive Order 11830; General Services Administration Order ADM
5420.71A; Executive Orders 11141; 11246 Part II, 11375, and 12086;
Office of Management and Budget (OMB) Circular No. A-11; 42 U.S.C.
2000E-16; Executive Order 11478; 38 U.S.C. 2014; 29 U.S.C. 631(b) and
633a; 5 U.S.C. chapters 43 and 72; Secretary of Defense Policy on Sexual
Harassment, July 17, 1981; Assistant Secretary of Defense (Manpower,
Reserve Affairs and Logistics) Multiple Addressee Memorandum, August 16,
1981; and 29 U.S.C. 206(d) by establishing the Civilian Equal Employment
Opportunity (EEO) Program, to include affirmative action programs,
consistent with guidance from the Equal Employment Opportunity
Commission (EEOC), Office of Personnel Management (OPM), and the DoD
Human Goals Charter.
(b) Consolidates in a single document provisions of Secretary of
Defense Multiple Addressee Memorandum, June 23, 1981; DoD Directive
1100.11, DoD Directive 1450.1, DoD Directive 5120.46, and DoD Directive
1100.15, therefore cancelling each document.
(c) Authorizes, as an integral part of the Civilian EEO Program, the
establishment of Special Emphasis Programs (SEPs) entitled the Federal
Women's Program (FWP), the Hispanic Employment Program (HEP), and the
Program for People with Disabilities (PPD), the Asian/Pacific Islander
Employment Program (AEP), the American Indian/Alaskan Native Employment
Program (AIEP), and the Black Employment Program (BEP).
(d) Establishes the Defense Equal Opportunity Council (DEOC), the
Civilian EEO Review Board, the SEP Boards.
(e) Authorizes the issuance of DoD Instructions and Manuals to
implement this part and guidance from standard-setting agencies such as
EEOC and OPM, consistent with DoD 5025.1-M.
[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991;
57 FR 35755, Aug. 11, 1992]
Sec. 191.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD) and
activities supported administratively by OSD, the Military Departments,
the Organization of the Joint Chiefs of Staff (as an element of the OSD
for the purposes of this program), the Unified and Specified Commands,
the Defense Agencies, the Army and Air Force Exchange Service, the
National Guard Bureau, the Uniformed Services University of the Health
Sciences, the Office of Civilian Health and Medical Programs of the
Uniformed Services, and the DoD Dependents Schools (hereafter referred
to collectively as ``DoD Components'').
(b) Applies worldwide to all civilian employees and applicants for
civilian employment within the Department of Defense in appropriated and
non-appropriated fund positions.
(c) Does not apply to military personnel, for whom equal opportunity
is covered by DoD Directive 1350.2 \1\.
---------------------------------------------------------------------------
\1\ Copies may be obtained from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
[[Page 10]]
(d) Covers Federal employment issues under section 504 of the
Rehabilitation Act of 1973, as amended, even though DoD Directive 1020.1
\2\ implements section 504 with respect to programs conducted and
assisted by the Department of Defense. The standards established under
section 501 of the Rehabilitation Act of 1973, as amended, (29 U.S.C.
791, 792, 793, and 795), are to be applied under section 504 of the Act
with respect to civilian employees and applicants for civilian
employment in Federal Agencies.
---------------------------------------------------------------------------
\2\ See footnote 1 to Sec. 191.2(c).
[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991]
Sec. 191.3 Definitions.
Affirmative action. A tool to achieve equal employment opportunity.
A program of self-analysis, problem identification, data collection,
policy statements, reporting systems, and elimination of discriminatory
policies and practices, past and present.
Age. A prohibited basis discrimination. For purposes of this
Directive, persons protected under age discrimination provisions are
those 40 years of age or older, except when a maximum age requirement
has been established by statute or the OPM. Aliens employed outside the
limits of the United States are not covered by this definition.
Discrimination. Illegal treatment of a person or group based on
race, color, national origin, religion, sex, age, or disability.
Equal Employment Opportunity (EEO). The right of all persons to work
and advance on the basis of merit, ability, and potential, free from
social, personal, or institutional barriers of prejudice and
discrimination.
Minorities. All persons classified as black (not of Hispanic
origin), Hispanic, Asian or Pacific Islander, and American Indian or
Alaskan Native.
National origin. A prohibited basis for discrimination. An
individual's place of origin or his or her ancestor's place of origin or
the possession of physical, cultural, or linguistic characteristics of a
national origin group.
People with disabilities. People who have physical or mental
impairments that substantially limits one or more major life activities,
has a record of such impairment, or is regarded as having such an
impairment. For purposes of this part, such term does not include any
individual who is an alcoholic or drug abuser and whose current use of
alcohol or drugs prevents such individual from performing the duties of
the job in question, or whose employment, by reason of such current
alcohol or drug abuse, would constitute a direct threat to property or
to the safety of others. As used in this paragraph:
(a) Physical or mental impairment. Any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological; musculoskeletal and
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic and
lymphatic; skin; and endocrine; or any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities.
(b) Major life activities. Functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
(c) Has a record of such impairment. Has a history of, or has been
misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(d) Is regarded as having an impairment. Has:
(1) A physical or mental impairment that does not substantially
limit major life activities but is treated by an employer as
constituting such a limitation;
(2) A physical or mental impairment that substantially limits major
life activities only as a result of the attitude of others toward such
impairment; or
(3) None of the impairments defined above but is treated by an
employer as having an impairment.
Race. A prohibited basis for discrimination. For purposes of this
part, all persons are classified as black (not of Hispanic origin),
Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native,
and White, as follows:
[[Page 11]]
(a) Black (not of Hispanic origin). A person having origins in any
of the black racial groups of Africa.
(b) Hispanic origin. A person of Mexican, Puerto Rican, Cuban,
Central or South American or other Spanish culture or origin regardless
of race.
(c) Asian or Pacific Islander. A person having origin in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent, or the Pacific Islands. This area includes, for example,
China, India, Japan, Korea, the Philippine Islands, and Samoa.
(d) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America, and who maintains cultural
identification through tribal affiliation or community recognition.
(e) White. A person having origins in any of the original peoples of
Europe, North Africa, or the Middle East.
Religion. Traditional systems of religious belief and moral or
ethical beliefs as to what is right and wrong that are sincerely held
with the strength of traditional religious views. The phrase ``religious
practice'' as used in this part includes both religious observances and
practices. DoD Components are expected to accommodate an employee's
religious practices unless doing so causes undue hardship on the conduct
of the Component's business.
Sexual Harassment. A form of sex discrimination that involves
unwelcomed sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature when:
(a) Submission to or rejection of such conduct is made either
explicitly or implicitly a term or condition of a person's job, pay, or
career; or
(b) Submission to or rejection of such conduct by a person is used
as a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or
creates an intimidating, hostile, or offensive environment.
Any person in a supervisory or command position who uses or condones
implicit or explicit sexual behavior to control, influence, or affect
the career, pay, or job of a military member of civilian employee is
engaging in sexual harassment. Similarly, any military member of
civilian employee who makes deliberate or repeated unwelcomed verbal
comments, gestures, or physical contact of a sexual nature is also
engaging in sexual harassment.
Special Emphasis Program (SEPs). Programs established as integral
parts of the overall EEO program to enhance the employment, training,
and advancement of a particular minority group, women, or people with
disabilities.
Standard-setting agencies. Non-DoD Federal Agencies authorized to
establish Federal Government-wide EEO policy or program requirements.
The term includes the EEOC; OPM: DoL, Office of Federal Contract
Compliance Programs (OFCCP); and OMB.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35755, Aug. 11, 1992]
Sec. 191.4 Policy.
It is DoD Policy to:
(a) Recognize equal opportunity programs, including affirmative
action programs, as essential elements of readiness that are vital to
the accomplishment of the DoD national security mission. Equal
employment opportunity is the objective of affirmative action programs.
(b) Develop and implement affirmative action programs to achieve the
objective of a civilian work force in which the representation of
minorities, women, and people with disabilities at all grade levels, in
every occupational series, and in every major organization element is
commensurate with the representation specified in EEOC and OPM guidance.
Such programs, which shall be designed to identify, recruit, and select
qualified personnel, shall be coordinated with the cognizant legal
offices.
(c) Ensure that Civilian EEO Program activities for minorities,
women, and people with disabilities are integrated fully into the
civilian personnel management system.
(d) Assess progress in DoD Component programs in accordance with the
affirmative action goals of the Department of Defense.
[[Page 12]]
(e) Prohibit discrimination based on race, color, religion, sex,
national origin, mental or physical disability, or age.
(f) Eliminate barriers and practices that impede equal employment
opportunity for all employees and applicants for employment, including
sexual harassment in the work force and at work sites and architectural,
transportation, and other barriers affecting people with disabilities.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel (ASD(FM&P)), or designee, shall:
(1) Represent the Secretary of Defense in all matters related to the
DoD Civilian EEO Program, consistent with DoD Directive 5124.2 \3\
---------------------------------------------------------------------------
\3\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(2) Establish and chair the DEOC.
(3) Establish a Civilian EEO Review Board.
(4) Develop policy and provide program oversight for the Civilian
EEO Program.
(5) Ensure full implementation of this part, monitor progress of
affirmative action program elements, and advise the Secretary of Defense
on matters relating to the Civilian EEO Program.
(6) Ensure that realistic goals that provide for significant
continuing increases in the percentages of minorities, women, and people
with disabilities in entry, middle, and higher grade positions in all
organizations and occupations are set and accomplished until the overall
DoD objective is met and sustained.
(7) Prepare a new DoD Human Goals Charter each time a new Secretary
of Defense is appointed.
(8) Ensure fair, impartial, and timely investigation and resolution
of complaints of discrimination in employment, including complaints of
sexual harassment.
(9) Establish DoD SEPs for the FWP, HEP, HIP, AEP, AIEP, and BEP.
(10) Establish DoD Special Emphasis Program Boards to assist with
implementation of SEPs under this part.
(11) Establish DoD Civilian EEO Award Programs to provide for the
annual issuance of Secretary of Defense Certificates of Merit to DoD
Components and individuals for outstanding achievement in the major
areas covered by this part, and to review all awards and management
training programs within the Department of Defense to ensure that
minorities, women, and people with disabilities receive full and fair
consideration consistent with their qualifications and the applicable
program criteria.
(12) Issue implementing instructions and other documents, as
required, to achieve the goals of the DoD Civilian EEO Program and to
provide policy direction and overall guidance to the DoD Components.
(13) Represent the Department of Defense on programmatic EEO matters
with EEOC, OPM, the Department of Justice, other Federal Agencies, and
Congress.
(14) Represent the Department of Defense on the Interagency
Committee on Handicapped Employees under E.O. 11830, as amended, and the
Council on Accessible Technology under General Services Administration
Order ADM 5420.71A.
(15) Represent the Department of Defense at meetings and conferences
of non-Federal organizations concerned with EEO programs, and coordinate
DoD support of such organizations' activities with the Assistant
Secretary of Defense (Public Affairs) and with DoD General Counsel in
accordance with DoD Directive 5410.18 \4\, DoD Instruction 5410.19 \5\,
DoD Directive 5500.2 \6\, and DoD Directive 5500.7 \7\.
---------------------------------------------------------------------------
\4\ See footnote 1 to Sec. 191.2(c).
\5\ See footnote 1 to Sec. 191.2(c).
\6\ See footnote 1 to Sec. 191.2(c).
\7\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(16) Serve as the DoD liaison with the Office of Federal Contract
Compliance Programs (OFCCP), Department of Labor (DoL), for the purpose
of providing contract information, forwarding complaints of
discrimination filed against DoD contractors, and implementing
administrative sanctions imposed against DoD contractors for
[[Page 13]]
violations of E.O. 11141; E.O. 11246; as amended by E.O. 11375, E.O.
12088; and DoL implementing regulations.
(17) Ensure that the DoD FAR Supplement contains appropriate
contract provisions for EEO for Government contractors and
subcontractors under Executive Orders 11141, 11246 Part II, 11375, and
12086; Section 402 of the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended; Section 503 of the Rehabilitation Act of 1973,
as amended; and DoL implementing regulations.
(b) The Heads of DoD Components, or their designees, shall:
(1) Ensure that all EEO policies are disseminated widely and that
they are understood and implemented at all levels within their
Components.
(2) Ensure that their Components comply with EEOC and OPM guidance
and this part and that minorities, women, and people with disabilities
receive full and fair consideration for civilian employment in all grade
levels, occupations, and major organizations, with special emphasis on
mid-level and higher grades and executive-level jobs, including the
Senior Executive Service (SES) and SES candidate pools.
(3) Treat equal opportunity and affirmative action programs as
essential elements of readiness that are vital to accomplishment of the
national security mission.
(4) Designate a Director of Civilian Equal Opportunity and allocate
sufficient staff and other resources to ensure a viable EEO program
under this Directive. This includes assignment of staff to be
responsible for EEO and affirmative action programs generally and SEP
Managers for the SEPs established under this part at the Component
level.
(5) Establish DoD SEPs, for the FWP, HEP, PPD, AEP, AIEP, and BEP at
Headquarters level and at all field activities levels unless exemptions
are granted to field activities. Authority to grant exceptions to field
activities of DoD Components is delegated to the Component Heads who, in
turn, may redelegate this authority.
(6) Require that EEO be included in critical elements in the
performance appraisals of all supervisors, managers, and other Component
personnel, military and civilian, with EEO responsibilities.
(7) Ensure fair, impartial, and timely investigation and resolution
of complaints of discrimination in employment, including complaints of
sexual harassment.
(8) Set realistic Component goals and motivate subordinate managers
and supervisors to set and meet their own goals until overall DoD and
Component goals are met and sustained.
(9) Evaluate employment policies, practices, and patterns within
their respective Components and identify and correct and institutional
barriers that restrict opportunities for recruitment, employment,
advancement, awards, or training for minorities, women, and people with
disabilities and ensure that EEO officers and civilian personnel
officers provide leadership in eliminating these barriers.
(10) Ensure that installations and activities establish focused
external recruitment programs to produce employment applications from
minorities, women, and people with disabilities who are qualified to
compete effectively with internal DoD candidates for employment at all
levels and in all occupations.
(11) Establish a continuing EEO educational program (including
training in the prevention of sexual harassment) for civilian and
military personnel who supervise civilian employees.
(12) Establish EEO Awards Programs to recognize individuals and
organizational units for outstanding achievement in one or all of the
major EEO areas covered by this part.
(13) Review all award and management training programs to ensure
that minorities, women, and people with disabilities are considered,
consistent with their qualifications and program criteria.
(14) At military installations having a civilian work force and
military units, ensure that the Civilian EEO Program is managed by and
conducted for civilian personnel only and that the Military Equal
Opportunity Program is managed by and conducted for military personnel
only. Any exceptions to this
[[Page 14]]
policy must be authorized by the Component head.
[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991;
57 FR 35756, Aug. 11, 1992]
Sec. 191.6 Procedures.
(a) Officials designated in this Directive shall allocate resources
necessary to develop methods and procedures to ensure that all elements
of this part are fully implemented and are in compliance with the spirit
and intent of the DoD Human Goals Charter, laws, executive orders,
regulatory requirements, and other Directive and Instructions governing
the Civilian EEO Program within the Department of Defense.
(b) Heads of DoD Components, in accordance with EEOC and OPM
guidance and subject to oversight by and supplemental guidance from the
ASD(FM&P), or designee shall:
(1) Develop procedures for and implement an affirmative action
program for minorities and women, consistent with section 717 of the
Civil Rights Act of 1964, as amended; E.O. 11478; guidance from EEOC;
and guidance from OPM.
(2) Develop procedures for and implement an affirmative action
program for people with disabilities consistent with section 501 of
Rehabilitation Act of 1973, as amended, and guidance from EEOC.
(3) Develop procedures for and implement an affirmative action
program for disabled veterans, consistent with DoD Directive 1341.6. \8\
This program shall be consistent with the program established in
paragraph (b)(2) of this section and coordinated with the Component's
PPD manager.
---------------------------------------------------------------------------
\8\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(4) Develop procedures for and implement systems for investigation
and resolution of complaints of employment discrimination under section
717 of the Civil Rights Act of 1964, as amended; sections 501, 503, and
504 of the Rehabilitation Act of 1973, as amended and DoD Directive
1020.1; section 402 of the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended; the Age Discrimination in Employment Act of
1967, as amended; guidance from EEOC; and applicable case law.
(5) Develop procedures for and implement a Federal Equal Opportunity
Recruitment Program for minorities and women and a comparable special
recruitment program for people with disabilities in accordance with the
Civil Service Reform Act of 1978; EEOC instruction concerning
affirmative action programs for people with disabilities; guidance from
OPM; external recruitment programs to obtain employment applications
from minorities, women, and people with disabilities who are competitive
with internal DoD candidates for employment at all levels.
(6) Develop procedures for and implement all SEPs established under
this part at the Component level. These SEPs shall be integral parts of
the Civilian EEO Program and shall be conducted in accordance with the
provisions of this part and applicable EEOC and OPM guidance.
(7) Develop procedures for and implement a program to eliminate
sexual harassment in Component work places, consistent with DoD Policy
on Sexual Harassment memorandums, and to ensure compliance with the
Equal Pay Act.
(8) Develop procedures for and implement a program of employment
preference for spouses of military personnel, in accordance with DoD
Instruction 1404.12. \9\
---------------------------------------------------------------------------
\9\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(9) Develop procedures for and implement a selective placement
program for people with disabilities in accordance with guidance from
OPM. This program shall be consistent with the program established in
paragraph (b)(2) of this section, and coordinated with the Component's
PPD manager.
(10) Develop procedures for and implement staffing initiatives,
training and development programs, and upward mobility programs designed
to increase the representation of qualified minorities, women, and
people with disabilities on certificates of eligibility and accompanying
lists of individuals eligible for special appointments that are provided
to selecting officials at all levels within the Component. These
[[Page 15]]
programs should include SES candidate programs and shall be targeted in
career field in which there is underrepresentation and a likelihood of
vacancies (e.g., science and engineering positions).
(11) Develop procedures for and implement a program to evaluate all
supervisors and managers with EEO responsibilities on their
contributions to and support of the Component's EEO program.
Specifically, Component SES and General Manager personnel, when
appropriate, shall have their EEO responsibilities defined as a critical
element in their performance appraisals in accordance with the Civil
Service Reform Act of 1978.
(12) Develop procedures for an implement a program to participate in
and conduct ceremonies, where appropriate, at all levels of the
Component to observe nationally proclaimed or other specially-designated
community activities that particularly affect minorities, women, and
people with disabilities and that support the Civilian EEO Program.
Military and civilian personnel should both participate whenever
possible. Example of special observances include Dr. Martin Luther King
Jr.'s Birthday, Black History Month, National Women's History Week,
Women's Equality Day, Hispanic Heritage Week, National Disability
Employment Awareness Month, and the Decade of Disabled Persons.
(13) Develop procedures for and implement a program to revise
documents and change practices and policies that discriminate against
civilian personnel on the basis or race, color, sex, religion, national
origin, mental or physical disability, or age.
(14) Develop procedures for and implement and affirmative action
program for the continued Federal employment of minorities, women, and
people with disabilities who have lost their jobs in DoD Components
because of contracting decisions made under OMB Circular No. A-76.
(Under OMB Circular Federal employees have, in general, the right of
first refusal of employment under these contracts.)
(15) Develop procedures for and implement a program for computer
support of employees with disabilities consistent with DoD participation
in activities of the Council on Accessible Technology in accordance with
General Services Administration Order ADM 5420.71A.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.7 Civilian EEO program staff.
(a) EEO Managers, including SEP Managers and other staff who are
responsible for EEO and affirmative action programs, shall function at a
level that is sufficiently responsible with the assigned organization to
enable them to communicate effectively the goals and objectives of the
program and to enable them to obtain the understanding, support, and
commitment of managers and other officials at all levels within the
organization.
(b) It shall be the responsibility of EEO Managers, SEP Managers,
and other program staff to develop, coordinate, implement, and recommend
to managers, other officials, and covered groups the policy, guidance,
information, and activities necessary to attain the goals of the SEPs
and the overall DoD Civilian EEO Program.
Sec. 191.8 Defense equal opportunity council and EEO boards.
(a) The DEOC shall be chaired by the ASD (FM&P) and shall coordinate
policy for and review civilian and military equal opportunity programs,
monitor progress of program elements, and advise the secretary of
Defense on pertinent matters. One of the mandates of the DEOC shall be
to pursue an aggressive course of action to increase the numbers of
minorities, women, and people with disabilities in management and
executive positions at grades 13 and above, including the SES and, at
the request of the Secretary of Defense, Schedule C, and other noncareer
executive positions in the SES and on the Executive Schedule. Members of
the DEOC shall include the assistant Secretary of Defense (Reserve
Affairs), Director of Administration and Management, and the Assistant
Secretaries with responsibility for personnel policy and reserve affairs
in the Military Departments.
(b) The Civilian EEO Review Board shall be chaired by the ASD(FM&P),
or
[[Page 16]]
designee. The Board shall support the DEOC and shall be made up of
designated EEO and personnel representatives from the DoD Components and
such other individuals as may be necessary to carry out the work of the
DEOC and implement this part. The Board shall work with career
management officials, other key management officials, and union
representatives in developing policies, programs, and objectives.
(c) The DoD SEP Boards shall be chaired by the DoD SEP Managers.
These Boards shall be comprised of designated SEP Managers from the DoD
Components and such other individuals as may be necessary to advise and
assist in EEO activities and policy development in the Department of
Defense. The Boards shall work with career management officials, other
key management officials, and union representatives in developing
policies, programs, and objectives.
(d) The DEOC, Civilian EEO Review Board, and each SEP Board
established at the DoD level shall have a Charter that describes its
organization, management, functions, and operating procedures,
consistent with DoD Directive 5105.18. \10\
---------------------------------------------------------------------------
\10\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(e) Civilian EEO Review Boards and SEP Boards may be established at
Component, command, and installation levels as well as the DoD level to
assist in program activities.
(f) Members of covered groups should be represented on Civilian EEO
Review Boards, SEP Boards, and subcommittees at all levels; and
consideration should be given to participation by military personnel and
by Federal employees who are union representatives.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.9 Information requirements.
(a) The ASD(FM&P) shall:
(1) Submit an annual report to the Secretary of Defense on the
status of the DoD EEO program. This report shall be developed from
existing documents, such as affirmative action plan accomplishment
reports, civil rights budget reports, semiannual discrimination
complaint reports, and Federal Equal Opportunity Recruitment Program
reports, plus statistical data obtained from the Defense Manpower Data
Center and reports of visits to DoD installations.
(2) Submit consolidated DoD annual reports on discrimination
complaints to the EEOC in accordance with EEOC guidance. This reporting
requirement is assigned Interagency Report Control Number 0288-EEO-NA.
(b) Heads of DoD Components shall:
(1) Submit annual reports on discrimination complaints to the
ASD(FM&P), or designee, in accordance with guidance from the EEOC. This
reporting requirement is assigned Interagency Report Control Number
0288-EEO-NA.
(2) Submit copies of affirmative action program plan, affirmative
action program plan updates, and affirmative action plan accomplishment
reports for minorities, women, and people with disabilities to the
ASD(FM&P), or designee, in addition to copies of annual reports for the
Federal Equal Opportunity Recruitment Program.
(3) Ensure that designated officials submit information for an
annual report on computer support of employees with disabilities and for
reports on individual computer accommodations for employees with
disabilities. These reporting requirements are assigned RCS DD-FM&P (A)
1731 and RCS DD-FM&P (AR) 1732.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.10 Effective date.
This part is effective May 21, 1987.
PART 192_EQUAL OPPORTUNITY IN OFF-BASE HOUSING--Table of Contents
Sec.
192.1 Purpose.
192.2 Applicability.
192.3 Definitions.
192.4 Policy.
192.5 Responsibilities.
192.6 Procedures.
Appendix A to Part 192--Checklist for Commanders
Appendix B to Part 192--Procedures and Reports
[[Page 17]]
Authority: 42 U.S.C. 3601 et seq.
Source: 55 FR 6248, Feb. 22, 1990, unless otherwise noted.
Redesignated at 56 FR 32964, July 18, 1991.
Sec. 192.1 Purpose.
This part:
(a) Revises 32 CFR part 192.
(b) Revises the references, policies, and procedures covering off-
base housing and fair housing enforcement.
(c) Outlines discrimination complaint inquiries or investigative
procedures and hearing requirements.
(d) Deletes the requirement for each Military Department to submit a
semi-annual housing discrimination report to the Assistant Secretary of
Defense (Force Management and Personnel) (ASD(FM&P)).
(e) Requires each Military Service to report to the ASD(FM&P) any
housing discrimination cases and their results in their Annual Military
Equal Opportunity Assessment Report to the ASD(FM&P).
(f) Requires each Military Department to maintain all completed or
resolved housing discrimination cases.
(g) Emphasizes liaison with other Government (local, State, or
Federal) agencies.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Joint Chiefs of Staff (JCS), the Joint
Staff, the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), the Uniformed Services University of
the Health Sciences (USUHS), the Defense Agencies, and DoD Field
Activities (hereafter referred to collectively as ``DoD Components'').
The term ``Military Services,'' as used herein, refers to the Army,
Navy, Air Force, and Marine Corps. DoD civilian employees (as defined in
Sec. 192.3) will be offered the same services that members of the Armed
Forces receive.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.3 Definitions.
Agent. Real estate agency, manager, landlord, or owner of a housing
facility doing business with DoD personnel or a housing referral service
(HRS).
Area outside the United States. Foreign countries where DoD
personnel reside.
Commander. The military or civilian head of any installation,
organization, or agency of the Department of Defense who is assigned
responsibility for the off-base housing program.
Commuting area. That area which is within a 1 hour commute by a
privately-owned vehicle during rush hour and no farther than 30 miles
from the installation, or within other limits to satisfy mission
requirements.
Complainant. A member of the Armed Forces (or authorized dependent
designated by the member) or a civilian employee of the Department of
Defense (or authorized dependent designated by the civilian employee)
who submits a complaint of discrimination under this part.
Discrimination. An act, policy, or procedure that arbitrarily denies
equal treatment in housing because of race, color, religion, sex,
national origin, age, handicap, or familial status to an individual or
group of individuals.
DoD personnel. (1) Members of the Armed Forces (and their
dependents) authorized to live off-base.
(2) DoD civilian employees (and their dependents) who are
transferred from one place of residence to another because of job
requirements or recruited for job opportunities away from their current
place of residence in the United States, and all DoD U.S. citizen
appropriated fund and nonappropriated fund civilian employees and their
dependents outside the United States.
Familial Status. One or more individuals (who have not attained the
age of 18 years) being domiciled with a parent or another person having
legal custody of such an individual or individuals; or the designee of
such parent or other person having such custody, with the written
permission of such parent or other person.
Listed facility. A suitable housing facility (not on restrictive
sanction) listed with the HRS as available for occupancy by DoD
personnel.
[[Page 18]]
Minorities. All persons classified as black (not of Hispanic
origin), Hispanic, Asian or Pacific Islander, or American Indian or
Alaskan native.
Relief for the complainant. Action taken by a commander for the
benefit of a complainant.
Restrictive sanctions. Actions taken by a commander to prevent
military personnel from moving to, or entering into a rental, lease, or
purchase arrangement with, a housing facility, when its agent has been
found to have discriminated against DoD personnel. Restrictive sanctions
are effective against the agent and the facility.
Survey. The procedure by which the HRS identifies housing resources
to ascertain the availability of housing facilities for occupancy by DoD
personnel.
Verifiers. Volunteers used by the commander during the course of a
housing discrimination investigation to determine if, in fact, housing
discrimination is being practiced by an agent, as alleged. Verifiers are
not required to be prospective tenants.
Sec. 192.4 Policy.
It is DoD policy that under DoD Directive 1350.2 \1\ the Department
of Defense is fully committed to the goal of obtaining equal treatment
for all DoD personnel. Specific guidance on off-base housing and fair
housing enforcement is as follows:
---------------------------------------------------------------------------
\1\ Copies of all DoD issuances listed in this part may be obtained,
at cost, from the National Technical Information Service, 5285 Port
Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
(a) National Housing Policy. Federal law prohibits discrimination in
housing in the United States against any person because of race, color,
religion, sex, age, national origin, handicap, or familial status.
(1) Title VIII of P.L. 90-284 contains the following:
(i) The fair housing provisions.
(ii) Outlines the responsibilities of the Secretary of Housing and
Urban Development (HUD) with regard to Public Law 90-284.
(iii) Requires all Executive Departments and Agencies to administer
housing and urban development programs and activities under their
jurisdiction in a manner that shall reflect ``affirmatively'' the
furthering of title VIII.
(2) Title IX of Public Law 90-284 makes it a crime to intimidate
willfully or interfere with any person by force or threat because of
that person's activities in support of fair housing.
(3) Title 42 U.S.C. 1982 prohibits discrimination in housing in the
United States. This statute protects DoD personnel.
(4) Public Law 100-430 amends title VIII of Public Law 90-284 by
revising the procedures for the enforcement of fair housing requirements
and adding protected classes of individuals.
(5) Title VIII of Public Law 90-284, as amended by Public Law 100-
430, does not limit the applicability of any reasonable local, State, or
Federal restrictions regarding the maximum number of occupants permitted
to occupy a dwelling. Additionally, provisions of such title VIII
regarding familial status do not apply with respect to housing intended
for, and solely occupied by, persons 62 years of age or older or
intended and operated for occupancy, but at least one person 55 years of
age or older. For guidance regarding housing occupied by those 55 years
of age or older, use the statutory provision at section 805 b(2)(c), 102
Stat. 1623, of Public Law 100-430.
(b) DoD Fair Housing Policy. The Department of Defense intends that
Federal fair housing law shall be supported and that DoD personnel shall
have equal opportunity for available housing regardless of race, color,
religion, sex, age, national origin, handicap, or familial status.
(1) That policy includes the objective of eliminating discrimination
against DoD personnel in off-base housing. That objective is not
achieved simply by finding a place to live in a particular part of town
or in a particular facility for a specific person.
(2) The intent is achieved when a person meeting the ordinary
standards of character and financial responsibility is able to obtain
off-base housing equally as any other person anywhere in the area
surrounding a military installation, without suffering discrimination
based on race, color, religion,
[[Page 19]]
sex, age, national origin, handicap or familial status.
(i) The accomplishment of this objective shall not be hampered by
requiring the submission of a formal complaint of discrimination. A
suspected discriminatory act, with or without the filing of a formal
complaint, is a valid basis for investigation and, if discrimination is
substantiated, imposition of restrictive sanctions.
(ii) On substantiation that an agent practiced discrimination,
restrictive sanctions shall be imposed for a minimum of 180 days.
(iii) The fact that Public Law 90-284, 42 U.S.C. 1982, and Public
Law 100-430 may or may not provide a remedy in a given case of
discrimination affecting DoD personnel does not relieve a commander of
the responsibility to ensure equal treatment and equal opportunity for
such personnel or to impose restrictive sanctions against the agent and/
or facility, when appropriate.
(iv) Military installations shall develop information programs to
apprise Service members of the DoD policy and program for equal
opportunity in off-base housing. Commanders should use local community
resources, such as civil rights organizations, religious and service
groups, and local information media, in support of their programs.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.5 Responsibilities.
The Secretaries of the Military Departments shall:
(a) Ensure nondiscrimination in referring DoD personnel to off-base
housing facilities.
(b) Continue efforts (as described in DoD 4165.63-M \2\ to identify
and solicit nondiscriminatory assurances for housing facilities within
the commuting area, which are considered to be suitable for occupancy by
Service members.
---------------------------------------------------------------------------
\2\ See footnote 1 to Sec. 192.4.
---------------------------------------------------------------------------
(c) Ensure that an office and staff required by DoD 4165.63-M are
available in conjunction with the cognizant staff judge advocate or
other legal authority to advise Service members on the following:
(1) The procedures in this part.
(2) The application of Public Law 90-284, 42 U.S.C. 1982, and Public
Law 100-430 in specific situations.
(3) The rights of individuals to pursue remedies through civilian
channels, without recourse and in addition to the procedures prescribed
in this part, including the right to:
(i) Make a complaint directly to the Department of HUD and/or to the
Department of Justice (DoJ) in the United States.
(ii) Bring a private civil action in any court of competent
jurisdiction.
(d) Periodically review off-base housing procedures and policies to
ensure effectiveness and compliance with this part. (Appendix A to this
part is a checklist to help commanders with this review.)
(e) Cooperate with other Government Agencies investigating housing
discrimination complaints filed by Service members.
(f) Ensure that each Military Service reports any housing
discrimination cases and their results in the Annual Military Equal
Opportunity Assessment Report required by DoD Instruction 1350.3.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.6 Procedures.
(a) Appendix B to this part contains the detailed procedures for
assisting Service members, investigating housing complaints, and
reporting requirements for housing discrimination complaints.
(b) The complaint and investigative report required in section B.,
appendix B to this part is exempt from formal approval and licensing
under DoD 7750.5-M. \3\
---------------------------------------------------------------------------
\3\ See footnote 1 to Sec. 192.4.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. Appendix A to Part 192--Checklist for Commanders
A. Are all assigned personnel informed of the Equal Opportunity in
Off-Base Housing Program requirements before obtaining housing off base?
B. Is there an effective information program ensuring equal
opportunity in off-base housing information program?
[[Page 20]]
C. Are community resources being used to support the equal
opportunity in off-base housing information program?
D. Are housing discrimination complaints being processed within the
required time?
E. Are complainants being informed in writing of the results of
housing discrimination inquiry and/or investigating actions?
F. Are housing surveys being conducted periodically to obtain new
listings?
G. Are restrictive sanctions being imposed immediately for a minimum
of 180 days on agents found to be practicing discrimination?
H. Are the services of command representatives provided to assist
applicants in their search for housing?
I. Are HHS personnel and equal opportunity personnel aware of and
sensitive to housing problems encountered by DoD personnel?
J. Are equal opportunity in off-base housing reports being submitted
accurately and on time?
Sec. Appendix B to Part 192--Procedures and Reports
A. Off-Base Housing Procedures
DoD personnel seeking off-base housing shall be processed as
follows:
1. Seen by an HRS when available (optional for DoD civilian
personnel).
2. Provided assistance in seeking temporary and permanent off-base
housing, as follows:
a. Counseling on the equal opportunity in off-base housing program
with particular emphasis placed on reporting any indication of
discrimination against DoD personnel in their search for housing.
b. Counseling and personal assistance shall include the following
services:
(1) Offering to check by telephone the availability of selected
listings. A record shall be made and retained for future reference of
the date, time, and nature of any conversation confirming the
availability of a facility. The race, color, religion, sex, national
origin, handicap, or familial status of the applicant shall not be
divulged. Caution must be exercised to ensure that a pattern of
``confirmation only for minorities'' does not develop.
(2) Offering the services of a command representative (such as a
unit sponsor or other designated person, when available) to accompany
and assist the applicant in the search for housing.
(3) Explaining various discriminatory methods that may be employed
by agents. For instance, an agent may arbitrarily refuse to accept or
consider the applicant as a tenant, falsely indicate the unit sought has
been rented to another applicant, or refuse to make the unit available
under the same terms and conditions as are ordinarily applied to
applicants for the facilities. In such instances the following shall
apply:
(a) The agent shall be queried on the reasons why the unit is not
available. After all reasonable steps have been taken to ascertain
whether any valid nondiscriminatory reason can be shown for the agent's
rejection of the applicant, and if there appears to be no such reason, a
reasonable effort shall be made to persuade the agent to make the unit
available to the applicant.
(b) The incident shall be reported immediately by the command
representative and the applicant to the HRS for appropriate command
action.
B. Complaint Procedures--United States
Commanders shall ensure that all DoD personnel are informed of the
scope and provisions of the DoD Equal Opportunity in Off-Base Housing
Program and advised to report immediately to the HRS (when available)
any form of discrimination encountered when seeking housing within a
Civilian Community. Incidents should be reported to base agencies or
command representatives when an HRS is not available (i.e., equal
opportunity officer, unit commander, supervisor). A verbal or written
statement of discriminatory policy by an agent is considered to be an
act or incident of discrimination, and the investigative procedures
outlined in this appendix shall be followed.
1. Inquiry into Complaint. Complaints of off-base housing
discrimination must receive prompt attention. An inquiry into the
complaint shall begin within 3 working days after receipt of the
complaint. The inquiry may be informal, but must be detailed
sufficiently to determine if discrimination occurred. Upon receipt of a
discrimination complaint, the HRS (if there is no HRS, a command
designated representative) shall take the following action:
a. Immediately notify the commander.
b. Promptly interview the complainant to determine the details and
circumstances of the alleged discriminatory act.
c. Immediately telephone or visit the facility and/or agent
concerned, if the complaint is received shortly after the time of the
alleged act and it concerns the change in availability of a vacancy
(i.e., ``just rented,'' etc.). Attempt to determine if a vacancy exists
without making reference to the complaint received. Request the
commander to authorize the use of verifiers, as necessary. (See this
appendix, subsection B.2.)
d. Advise the complainant of the provisions and procedures in this
Instruction and of the right to pursue further actions through HUD, DoJ,
and local or State agencies. Coordinate efforts with the Office of Judge
Advocate or other cognizant legal counsel to determine
[[Page 21]]
to what extent legal assistance can be provided to the complainant.
Assist the complainant in completing seven signed, dated, and notarized
copies of HUD Form 903, ``Housing Discrimination Complaint.'' The fact
that a complainant might report an act of alleged discriminatory
treatment, but declines completing a HUD Form 903, does not relieve the
command of responsibility for making further inquiry and taking such
subsequent actions, as may be appropriate.
e. Document the complainant's action for future reference and inform
the commander of the results of the HRS preliminary inquiry and actions
taken. The commander shall take action to assist the complainant in
obtaining suitable housing. If, due to previous discriminatory practices
in the community, suitable housing cannot be obtained by the complainant
in a reasonable amount of time, the complainant and the commander may
use this fact to justify a request for priority in obtaining military
housing or for humanitarian reassignment. Reassignment action is a last
resort and must be justified fully through command personnel channels.
2. Use of Verifiers. Verifiers are authorized to determine if a
vacancy exists and whether or not rental or such practices are
discriminatory. Verifiers shall not be used only for determining
sincerity or normal practices of an agent about whom the HRS has not
received a housing discrimination complaint.
a. When selecting and using verifiers, the following applies:
(1) Verification of the vacancy shall be made expediently after
alleged act of discrimination.
(2) Verifiers may be volunteers. (The equal opportunity office is a
possible source for identifying individuals to be used as verifiers.)
(3) The purpose of verification is to isolate the attribute of race,
color, religion, sex, national origin, age, handicap, or familial status
that is the suspected basis for the alleged discrimination against the
complainant. Except for those attributes that are considered to be the
source of the discrimination complaint, the verifier should possess
attributes that are similar to the complainant. If two verifiers are
used, one may possess similar attributes to the complainant. Ideally,
two verifiers should be used.
b. Instructions provided to the verifiers by HRS personnel should
include the following:
(1) Explanation of the equal opportunity in off-base housing and
off-base housing referral programs.
(2) Verifiers are to obtain information only on agent and/or
facility operating policies, practices, and procedures for subsequent
determination of complaint validity.
(3) Verifiers are not to make a verbal or written contract for the
housing unit, pay any money, or say they want the housing unit.
(4) Verifiers shall be knowledgeable concerning family composition,
pets, and housing requirements of the complainant; they shall ask for
identical housing requirements.
(5) The following information shall be obtained by the verifier, if
possible:
(a) Concerning the Facility. What is available? Does it meet the
requirements of the complainant? Amount of rent or cost of facility?
Deposit required? Is an application required? What is the time between
filing an application and permission to move in? Are there minority
families and/or singles in the facility? Make a note of the presence or
absence of a vacancy sign, and any other information deemed appropriate.
(b) Concerning the Prospective Tenants/Purchasers. If possible,
ascertain criteria and qualifications that must be met (credit rating,
salary, marital status, deposit, written application, etc.) and obtain a
complete description of all procedures for becoming a tenant/purchaser
including all steps from initial inquiry to moving in. Does the agent's
subjective impression of the applicant appear to play any part in the
decision to rent the unit?
(6) The verifier's statement shall be completed immediately after
the verification visit, if possible. It shall be accurate, objective,
and factual. Include the following in the statement:
(a) Date, time of visit, persons contacted, positions of persons
contacted. Include any other pertinent information obtained during
visit; i.e., length of time employed at facility, in addition to the
information in this appendix, subparagraph B.2.b.(5), above.
(b) When reconstructing a conversation, write in the first person
and try to use direct quotes. Do not use pronouns such as ``he,''
``she,'' or ``they.'' Clearly identify who said what to whom.
(c) Sign and date statement. Give full name, address, telephone
number (duty or home), race, color, religion, sex, national origin, age,
handicap or familial status, as relevant to the complaint.
3. Complaint Process. If the basic facts of the HRS preliminary
inquiry appear to substantiate the complaint, the commander shall ensure
that the following actions begin within 3 working days of receipt of the
inquiry report:
a. Informal Hearing. Give written notice to the agent explaining the
nature of the complaint and the agent's right to request an informal
hearing with the commander. The notification shall state specifically
the nature of the discrimination complaint and the right of the agent to
appear personally at the hearing, to be represented by an attorney, to
present evidence, and to call witnesses. The notification also shall
state that the agent has 5 days after receipt of the written notice to
request a hearing. If no request
[[Page 22]]
is received within 5 days, the lack of response shall be considered as a
waiver of the right to such hearing. The written notification either
shall be delivered to the agent personally by a representative of the
commander, or shall be sent to the agent by certified mail with return
receipt requested.
(1) Composition of an Informal Hearing. The informal hearing shall
be conducted by the commander or designee at a convenient location. The
agent, agent's attorney, the complainant, the complainant's attorney,
the equal opportunity officer, the HRS, the Staff Judge Advocate or
other cognizant legal counsel, or other designated persons may attend.
(2) Record of Hearing. A summary of the hearing shall be made a part
of the complaint file.
b. Legal Review. A legal review shall be accomplished following the
inquiry and informal hearing (if applicable) and before the commander's
final decision that the inquiry supports or fails to support the
complaint. The summary and other pertinent documents shall be reviewed
for content and completeness. A statement that such a review was
conducted and signed by the Staff Judge Advocate or other cognizant
legal counsel performing the review shall be made a part of the case
file. That statement shall include:
(1) Any necessary explanatory remarks, including comments on the
facts and evidence presented.
(2) Information known about pending complaints brought by other
parties on the same facility and/or agent.
(3) Comments on the civil rights laws relevant to the particular
case.
4. Commander's Decision. The responsibility for imposition of
restrictive sanctions rests with the commander and cannot be delegated.
The commander's decision shall be based on a full and impartial review
of all facts and the policies and requirements as stated in this part.
The commander's options include the following:
a. If the commander determines that more information is required, or
for any reason further inquiry is deemed necessary, an officer shall be
appointed from sources other than the HRS to conduct a formal inquiry or
investigation, as the situation warrants. The officer, if not an
attorney, shall be afforded the advice and assistance of a Staff Judge
Advocate or other cognizant legal counsel.
b. If, in the commander's judgment, the inquiry or investigation
fails to support the complaint the case shall be considered closed and
the commander shall:
(1) Inform the complainant in writing of all actions taken and
advise the complainant of rights to pursue further actions to include
the following:
(a) The right to submit a complaint to the HUD and the DoJ.
(b) The right to bring a private civil action in a State or Federal
court of competent jurisdiction.
(c) The availability of legal assistance from their local Staff
Judge Advocate or other cognizant legal counsel in pursuing civil
redress.
(2) Summarize in the report file the practices giving rise to the
complaint, the actions and results of the inquiry or investigation, and
if discriminatory practices were found, written assurances from the
agent on future facility and/or agent practices. The following
statement, completed by the complainant, shall be included, as part of
the case file: ``I am (am not) satisfied with the efforts taken by the
commander on my behalf to achieve satisfactory resolution of my off-base
housing discrimination complaint.'' If the complainant indicates a lack
of satisfaction, the reasons must be included in the case file.
(3) Inform the agent of the results of the inquiry by command
correspondence if an informal hearing was held. Such correspondence
should reiterate DoD policy and requirements for equal opportunity in
off-base housing.
(4) Forward unsubstantiated complaint reports and HUD Form 903 to
the HUD and the DoJ if requested by the complainant.
(5) Retain a copy of the report file for 2 years for future
reference.
c. If the inquiry or investigation supports the complainant's charge
of discrimination and the discriminatory act is determined by the
commander to conflict with DoD policy, the commander shall:
(1) Impose restrictive sanctions against the agent and/or facility
for a minimum of 180 days. Sanctions shall remain in effect until the
requirements in this appendix, subparagraphs B.6.a.(1) or B.6.a.(2),
below, are met. Restrictive sanctions shall be imposed when a suspected
discriminatory act, despite the absence of a formal complaint, is
investigated and found valid. The fact that a validated discrimination
complaint and/or incident has been or is scheduled to be forwarded to
another Agency (the HUD, the DoJ, etc.) is not cause for withholding
sanction action pending the outcome of that Agency's further review or
investigation. When imposing a restrictive sanction, the commander
shall:
(a) Remove the facility listing(s) from HRO files.
(b) Impose restrictive sanctions against all facilities owned or
operated by the agent concerned.
(c) Place the facility on the restrictive sanction list maintained
by the HRS. The restrictive sanction list shall be prepared on official
letterhead stationery, signed by the commander, and include the
authority for and conditions of the restrictive sanctions.
(d) Inform the agent concerned by command correspondence that:
[[Page 23]]
(1) Restrictive sanctions have been imposed.
(2) The reasons, nature, and minimum duration of the restrictions.
(3) The action required for the removal of sanctions at the
conclusion of the minimum period.
The notification of restrictive sanctions shall be sent by certified
mail, return receipt requested or delivered to the agent personally by a
command representative.
(e) Provide all DoD personnel reporting to the HRS with a copy of
the restrictive sanction list, and advise members of the Armed Forces
that they may not rent, lease, purchase, or reside in any of the listed
facilities. Obtain a signed acknowledgment of receipt of the restrictive
sanction list from the HRS using a DD Form 1746, ``Application for
Assignment to Housing.''
(f) Advise other military installations of the restrictive sanction
action taken when the sanctioned facility is located within the
commuting area of their military installations.
(2) Inform the complainant in writing of all actions taken and
advise the complainant that his or her case will receive continuing
action to include, if the complainant requests, forwarding the case file
to the HUD and/or the DoJ for action.
(3) Before forwarding the report to the respective Military
Department, prepare a memorandum outlining the following:
(a) The base efforts made to obtain housing relief for the
complainant.
(b) The impact of restrictive sanctions on the off-base housing
program and DoD personnel and their dependents.
(c) Any other considerations deemed relevant.
(4) Include a statement completed by the complainant for the case
file. (See this appendix, subparagraph B.4.b.(3), above.)
(5) If the act of discrimination falls within existing regulations,
forward a copy of the complaint and investigation report directly to the
HUD within 180 days after the occurrence of the alleged discriminating
act, using HUD Form 903. The original report shall be sent to the
appropriate HUD Regional Office or the U.S. Department of Housing and
Urban Development Office of Fair Housing and Equal Opportunity, 451 7th
Street SW., Washington, DC 20410. A copy of the complaint and
investigation report shall be forwarded to the Civil Rights Division,
Department of Justice, Washington, DC 20530.
(6) When more than one complaint alleging discrimination in the same
facility or by the same agent has been received, consolidate the
complaints for the inquiry, legal review, and commander's memorandum.
d. When a commander receives a complaint alleging further
discrimination in a facility or by an agent after a completed case file
has been closed, the commander shall forward the summary of the facts on
the subsequent complaint, outlined in this enclosure, subparagraph
B.4.c.(6), above. Include brief comments indicating the extent to which
the new complaint affects the previous action.
5. Followup Actions. After forwarding the report and all required
attachments to the HUD and the DoJ, the commander shall take the
following actions:
a. Cooperate with the HUD, the DoJ, and the local and State agency
representatives during their investigation and processing of the case,
should those entities seek assistance.
b. Periodically determine the status of the case by maintaining
liaison with the HUD office concerned. Contact shall be maintained until
such time as the case is resolved by the HUD.
c. Ensure that the complainant is kept informed directly by the HUD
and/or the DoJ.
d. Ensure that DoD personnel comply with the restrictive sanctions
imposed on the facility and/or the agent. Housing personnel will comply
with the following:
(1) Military personnel moving into or changing their place of
residence in the commuting area of a military installation or activity
may not enter into a rental, purchase, or lease arrangement with an
agent or a facility that is under restrictive sanction.
(2) Implement procedures for ensuring that DoD personnel seeking
housing are made aware of, and are counselled on, current restrictive
sanctions.
(3) Sanctions are not applicable to the DoD personnel who may be
residing in a facility when the sanction is imposed or to the extension
or renewal of a rental or lease agreement originally entered into before
the imposition of the sanction. Relocation of a military tenant within a
restricted facility is prohibited without the written approval of the
commander.
(4) If it is determined that a member of the Armed Forces has
intentionally taken residency in a restricted facility contrary to
instructions received by Housing Referral personnel, the commander shall
take appropriate disciplinary action against that number.
(5) Periodically publish a current listing of restricted facilities
in the base bulletin (or other appropriate means of internal
distribution). Minimally, such publication shall occur when there has
been an addition or deletion to the list.
6. Removal of Restrictive Sanction
a. A facility and/or agent may be removed from restrictive sanction
only if one of the following actions is taken:
[[Page 24]]
(1) The restrictive sanction may be removed before completion of the
180 day restrictive period if an approved waiver request is obtained
from the senior installation commander concerned, or designee.
Consideration shall be given to lifting an imposed sanction only in
exceptional circumstances and in conjunction with a written assurance of
nondiscrimination from the agent concerned.
(2) After completion of 180 days on restrictive sanction, if the
agent provides written assurance of future nondiscrimination to the HRS.
b. The commander shall inform the HRS, the equal opportunity office,
and the agent in writing of the removal from restrictive sanction.
7. ``Privacy Act'' and ``Freedom of Information Act'' Inquiries.
Requests for information from reports of housing discrimination shall be
processed in accordance with 32 CFR parts 285 and 286a.
C. Compliant Procedures--Outside the United States
Commanders of installations or activities outside the United States
shall ensure that all DoD personnel, on reporting to the HRS, are
clearly informed of the scope and provisions of the DoD Equal
Opportunity in Off-Base Housing Program and advised to report
immediately to the HRS any form of discrimination encountered as a
tenant, prospective tenant, or purchaser. Incidents reported to base
agencies or representatives other than the HRS (i.e., equal opportunity
officer, unit commander, supervisor) shall be brought to the immediate
attention of the HRS for appropriate action. On receiving a complaint of
discrimination, the commander and HRS shall:
1. Consult with the Staff Judge Advocate or other cognizant legal
counsel to determine if the laws of the country concerned (or any
subdivision thereof) prohibit any of the actions outlined in this
appendix, section B., above.
2. Take actions outlined in this appendix, section B, above, except
that a HUD Form 903 shall not be completed because reports of cases
arising outside the United States are not forwarded to the HUD or the
DoJ. Complainants should understand that the fair housing provisions of
the P.L. 90-284, ``Civil Rights Act,'' Title 42, United States, 1982,
and Public Law 100-430, ``Fair Housing Amendments Act of 1988,''
September 13, 1988, are not applicable in areas outside the United
States.
3. Determine, with legal advice, whether redress for the
discriminatory act should be sought from authorities in the host
country. Redress shall be based on the laws of the country (or
subdivision thereof) concerned.
D. Reporting Requirements
1. A copy of each complaint and investigative report that
substantiates a housing discrimination shall be submitted to the
appropriate Military Department (manpower and reserve affairs and/or the
equal opportunity office) not later than 45 days from the date the case
is completed. Under normal circumstances, the commander of the
installation concerned shall complete the required investigation and
processing complaints within 45 days from the date that a housing
complaint is filed by a complainant.
2. A copy of complaint and investigative reports that do not
substantiate allegations of housing discrimination shall be kept on file
at the installation level for a 24-month period beginning from the date
the case was completed.
PART 193_HIGHWAYS FOR NATIONAL DEFENSE--Table of Contents
Sec.
193.1 Purpose and scope.
193.2 Applicability.
193.3 Policy.
193.4 Authorities and responsibilities.
Authority: 5 U.S.C. 301.
Source: 33 FR 13016, Sept. 14, 1968, unless otherwise noted.
Sec. 193.1 Purpose and scope.
This part sets forth policy, responsibilities, and authority in
matters pertaining to Department of Defense highway needs and, when
appropriate, to the highway needs of other Federal agencies, during
peacetime and emergencies in the United States and its territories and
possessions.
Sec. 193.2 Applicability.
The provisions of this part apply to all components of the
Department of Defense.
Sec. 193.3 Policy.
In order to insure that the national defense is served by adequate,
safe and efficient highway transportation, it shall be the policy of the
DoD to (a) integrate the highway needs of the national defense into the
civil highway programs of the various State and Federal agencies, and
(b) cooperate with those agencies in matters pertaining to the use of
public highways and in planning their development and construction.
[[Page 25]]
Sec. 193.4 Authorities and responsibilities.
(a) The Secretary of the Army, as the Single Manager for Military
Traffic, Land Transportation, and Common-User Ocean Terminals (see DoD
Directive 5160.53, Single Manager Assignment for Military Traffic, Land
Transportation, and Common-User Ocean Terminals, March 24, 1967 (32 FR
5295)), is hereby designated as the Executive Agent for the Department
of Defense (hereinafter referred to as the Executive Agent), in matters
pertaining to public highways to serve the national defense in meeting
both peacetime and mobilization highway transportation needs in the
United States, its territories and possessions; and highway needs of
other Federal agencies, when appropriate. The Executive Agent, or his
designee, under the policy guidance of the Assistant Secretary of
Defense (Installations and Logistics), will:
(1) Coordinate the defense transportation interest in public
highways, including the implementation of subsection (h), section 210 of
Title 23 U.S. Code, and integrate foreseen DoD highway needs and
operational requirements into the highway programs of the United States,
its territories and possessions.
(2) Review and analyze DoD access road needs, and, when appropriate,
those of other Federal agencies from the standpoint of approved
transportation engineering practices, statutory provisions, and policies
and procedures of the Bureau of Public Roads, Department of
Transportation.
(3) Represent the DoD in matters pertaining to highways to serve the
national defense in liaison with the Bureau of Public Roads, the
American Association of State Highway Officials, and other appropriate
Government and non-Government agencies.
(4) Certify on behalf of the Secretary of Defense to the appropriate
Government agency, the public highway needs of the DoD and, when
appropriate, the needs of other Federal agencies, as being important to
the national defense. (See section 210, Title 23, U.S. Code.)
(5) Advise and assist the Assistant Secretary of Defense
(Comptroller) in matters pertaining to the (i) preparation and
justification of budget requirements for defense access road needs, and
(ii) transfer of funds appropriated for this purpose to the Bureau of
Public Roads.
(6) Develop and maintain an efficient relationship between the
design of military vehicles and State and Federal standards for the
design of public highways to ensure the effective and efficient
utilization of such highways by military vehicles.
(7) Provide highway traffic engineering services to DoD components,
when requested.
(8) Insure effective cooperation between the Department of Defense
and state highway authorities in matters pertaining to special defense
utilization of public highways.
(b) The other DoD Components will:
(1) Maintain official liaison with the Executive Agent in matters
pertaining to the provision of public highways to serve the national
defense and the access road needs of new or expanded DoD installations
and activities.
(2) Furnish the Executive Agent with information and data on current
and potential access-road and highway-system needs on request.
(c) The Secretaries of the Military Departments, or their designees,
are authorized to act for the Secretary of Defense under the provisions
of subsection (h) of section 210, Title 23, U.S. Code, in determining,
in connection with the funding of contracts for the construction of
classified military installations and facilities for ballistic missiles,
that construction estimates and the bids of contractors did not include
allowances for repairing road damages.
(d) The Secretaries of the Military Departments and the Directors of
DoD Agencies will program, budget, and finance for the responsibilities
assigned by this part and their access road requirements (see Pub. L.
90-180, Military Construction Appropriation Act, fiscal year 1968, and
successor statutes) in accordance with applicable program and financial
guidelines and procedures.
PART 194 [RESERVED]
[[Page 26]]
PART 195_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE
DEPARTMENT OF DEFENSE_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS
ACT OF 1964--Table of Contents
Sec.
195.1 Purpose.
195.2 Definitions.
195.3 Application.
195.4 Policy.
195.5 Responsibilities.
195.6 Assurances required.
195.7 Compliance information.
195.8 Conduct of investigations.
195.9 Procedure for effecting compliance.
195.10 Hearings.
195.11 Decisions and notices.
195.12 Judicial review.
195.13 Effect on other issuances.
195.14 Implementation.
Appendix A to Part 195--Programs to Which This Part Applies
Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws
referred to in appendix A.
Source: 29 FR 19291, Dec. 31, 1964, unless otherwise noted.
Redesignated at 56 FR 32965, July 18, 1991.
Sec. 195.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act of 1964 (referred to in this part as the
``Act'') to the end that no person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity receiving Federal
financial assistance from any component of the Department of Defense.
Sec. 195.2 Definitions.
(a) Component means the Office of the Secretary of Defense, a
military department or a Defense agency.
(b) Responsible Department official means the Secretary of Defense
or other official of the Department of Defense or component thereof who
by law or by delegation has the principal responsibility within the
Department or component for the administration of the law extending such
assistance.
(c) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term ``State'' means any one
of the foregoing.
(d) The term Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in
property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(e) The term program includes any program, project, or activity for
the provision of services, financial aid, or other benefits to
individuals, or for the provision of facilities for furnishing services,
financial aid or other benefits to individuals. The services, financial
aid, or other benefits provided under a program receiving Federal
financial assistance shall be deemed to include any services, financial
aid, or other benefits provided with the aid of Federal financial
assistance or with the aid of any non-Federal funds, property, or other
resources required to be expended or made available for the program to
meet matching requirements or other conditions which must be met in
order to receive the Federal financial assistance, and to include any
services, financial aid, or other benefits provided in or through a
facility provided with the aid of Federal financial assistance or such
non-Federal resources.
(f) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
[[Page 27]]
(g) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assign, or transferee thereof, but such term
does not include any ultimate beneficiary under any such program.
(h) The term primary recipient means any recipient which is
authorized or required to extend Federal financial assistance to another
recipient for the purpose of carrying out a program.
(i) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible Department
official, or by a primary recipient, as a condition to eligibility for
Federal financial assistance, and the term ``application'' means such an
application, request or plan.
Sec. 195.3 Application.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by any component of
the Department of Defense, including the federally assisted programs and
activities listed in appendix A of this part. This directive applies to
money paid, property transferred, or other Federal financial assistance
extended under any such program after January 7, 1965 pursuant to an
application approved prior to such date. This directive does not apply
to: (a) Any Federal financial assistance by way of insurance guaranty
contracts, (b) money paid, property transferred, or other assistance
extended under any such program before January 7, 1965, (c) any
assistance to any individual who is the ultimate beneficiary under any
such program, or (d) any employment practice, under any such program, of
any employer, employment agency, or labor organization, except as noted
in Sec. 195.4(b)(5) of this part. The fact that a program or activity
is not listed in appendix A shall not mean, if title VI of the Act is
otherwise applicable, that such program is not covered. Other programs
under statutes now in force or hereinafter enacted may be added to this
list by notice published in the Federal Register.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.4 Policy.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program to which this (part) applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this part applies may not, directly or
through contractual or other arrangements, on the ground of race, color,
or national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) In determining the site or location of facilities, a recipient
may not make selections with the purpose of excluding individuals from,
denying them the benefits of, or subjecting them to discrimination under
any program to which this part applies, on the ground of race, color, or
national origin; or with the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of the Act
or this part.
(iv) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any service, financial aid, or
other benefit under the program;
(v) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(vi) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must meet
in order to be provided any service, financial aid, or
[[Page 28]]
other benefit provided under the program;
(vii) Deny an individual an opportunity to participate in the
program through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program;
(viii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals
of a particular race, color, or national origin.
(3) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(4)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
(5) Where a primary objective of the Federal financial assistance is
not to provide employment, but nevertheless discrimination on the
grounds of race, color or national origin in the employment practices of
the recipient or other persons subject to this Directive tends, on the
grounds of race, color, or national origin of the intended
beneficiaries, to exclude intended beneficiaries from participation in,
to deny them benefits of, or to subject them to discrimination under any
program to which this Directive applies, the recipient or other persons
subject to this Directive are prohibited from (directly or through
contractual or other arrangements) subjecting an individual to
discrimination on the grounds of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising; employment, layoff or termination; upgrading,
demotion or transfer; rates of pay and/or other forms of compensation;
and use of facilities), to the extent necessary to assure equality of
opportunity to, and nondiscriminatory treatment of the beneficiaries.
Any action taken by a component pursuant to this provision with respect
to a state or local agency subject to Standards for a Merit System of
Personnel Administration, 45 CFR part 70, shall be consistent with those
standards and shall be coordinated with the U.S. Civil Service
Commission.
(6) The enumeration of specific forms of prohibited discrimination
in this section does not limit the generality of the prohibition in
paragraph (a) of this section.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973]
Sec. 195.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower) shall be
responsible for insuring that the policies of this part are effectuated
throughout the Department of Defense. He may review from time to time as
he deems necessary the implementation of these policies by the
components of the Department of Defense.
(b) The Secretary of each Military Department is responsible for
implementing this part with respect to programs and activities receiving
financial assistance from his Military Department; and the Assistant
Secretary of Defense (Manpower) is responsible for similarly
implementing this part
[[Page 29]]
with respect to all other components of the Department of Defense. Each
may designate official(s) to fulfill this responsibility in accordance
with Sec. 195.2(b).
(c) The Assistant Secretary of Defense (Manpower) or, after
consultation with the Assistant Secretary of Defense (Manpower), the
Secretary of each Military Department or other responsible Department
official designated by the Assistant Secretary of Defense (Manpower) may
assign to officials of other departments or agencies of the Government,
with the consent of such departments or agencies, responsibilities in
connection with the effectuation of the purposes of Title VI of the Act
and this part (other than responsibility for final decision as provided
in Sec. 195.11), including the achievement of effective coordination
and maximum uniformity within the Department and within the Executive
Branch of the Government in the application of Title VI and this part to
similar programs and in similar situations.
[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. 195.6 Assurances required.
(a) General. (1)(i) Every application for Federal financial
assistance to carry out a program to which this part applies, except a
program to which paragraph (b) of this section applies, and every
application for Federal financial assistance to provide a facility
shall, as a condition to its approval and the extension of any Federal
financial assistance pursuant to the application, contain or be
accompanied by an assurance that the program will be conducted or the
facility operated in compliance with all requirements imposed by or
pursuant to this part.
(ii) In the case where the Federal financial assistance is to
provide or is in the form of personal property, or real property or
interest therein or structures thereon, the assurance shall obligate the
recipient, or, in the case of a subsequent transfer, the transferee, for
the period during which the property or structures are used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services and
benefits, or for as long as the recipient retains ownership or
possession of the property, whichever is longer. In all other cases the
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the application. In
any case in which Federal financial assistance is extended without an
application having been made, such extension shall be subject to the
same assurances as if an application had been made. The responsible
Department official shall specify the form of the foregoing assurances
for each program, and the extent to which like assurances will be
required of subguarantees, contractors and subcontractors, transferees,
successors in interest, and other participants in the program. Any such
assurance shall include provisions which give the United States a right
to seek its judicial enforcement.
(2) In the case of real property, structures or improvements
thereon, or interest therein, which was acquired through a program of
Federal financial assistance, or in the case where Federal financial
assistance is provided in the form of a transfer of real property or
interest therein from the Federal Government, the instrument effecting
or recording the transfer, shall contain a covenant running with the
land assuring nondiscrimination for the period during which the real
property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits, or for as long as the recipient retains
ownership or possession of the property, whichever is longer. Where no
transfer of property is involved, but property is improved under a
program of Federal financial assistance, the recipient shall agree to
include such a covenant in any subsequent transfer of such property.
Where the property is obtained from the Federal Government, such
covenant may also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant where, in the discretion of the responsible
Department official, such a condition and right of reverter is
appropriate to the program under which the real property
[[Page 30]]
is obtained and to the nature of the grant and the grantee. In the event
a transferee of real property proposes to mortgage or otherwise encumber
the real property as security for financing construction of new, or
improvement of existing facilities on such property for the purposes for
which the property was transferred, the responsible Department official
may agree, upon request of the transferee and if necessary to accomplish
such financing, and upon such conditions as he deems appropriate, to
forbear the exercise of such right to revert title for so long as the
lien of such mortgage or other encumbrance remains effective. In
programs receiving Federal financial assistance in the form, or for the
acquisition of real property or an interest in real property, to the
extent that rights to space on, over, or under any such property are
included as part of the program receiving such assistance, the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(3) The assurance required in the case of a transfer of surplus
personal property shall be inserted in a written agreement by and
between the Department of Defense component concerned and the recipient.
(b) Continuing State programs. Every application by a State agency
to carry out a program involving continuing Federal financial assistance
to which this part applies shall as a condition to its approval and the
extension of any Federal financial assistance pursuant to the
application (1) contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the responsible
Department official to give reasonable assurance that the applicant and
all recipients of Federal financial assistance under such program will
comply with all requirements imposed by or pursuant to this part. In
cases of continuing State programs in which applications are not made,
the extension of Federal financial assistance shall be subject to the
same conditions under this subsection as if applications had been made.
(c) Assurances from institutions. (1) In the case of Federal
financial assistance to an institution of higher education, the
assurance required by this section shall extend to admission practices
and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher
education, or any other institution, insofar as the assurance relates to
the institution's practices with respect to admission or other treatment
of individuals as students of the institution or to the opportunity to
participate in the provision of services or other benefits to such
individuals, shall be applicable to the entire institution unless the
applicant establishes, to the satisfaction of the responsible Department
official, that the institution's practices in designated parts or
programs of the institution will in no way affect its practices in the
program of the institution for which Federal financial assistance is
sought, or the beneficiaries of or participants in such program. If in
any such case the assistance sought is for the construction of a
facility or part of a facility, the assurance shall in any event extend
to the entire facility and to facilities operated in connection
therewith.
(d) Elementary and secondary schools. The requirement of paragraph
(a), (b), or (c) of this section, with respect to any elementary or
secondary school or school system shall be deemed to be satisfied if
such school or school system (1) is subject to a final order of a court
of the United States for the desegregation of such school or school
system, and provides an assurance that it will comply with such order,
including any future modification of such order, or (2) submits a plan
for the desegregation of such school or school system which the
responsible official of the Department of Health, Education, and Welfare
determines is adequate to accomplish the purposes of the Act and this
part, and provides reasonable assurance that it will carry out such
plan; in any case of continuing Federal financial assistance the said
Department officer may reserve the right to redetermine, after such
period as may
[[Page 31]]
be specified by him, the adequacy of the plan to accomplish the purpose
of the Act or this part within the earliest practicable time. In any
case in which a final order of a court of the United States for the
desegregation of such school or school system is entered after
submission of such a plan, such plan shall be revised to conform to such
final order, including any future modification of said order.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]
Sec. 195.7 Compliance information.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible Department official timely, complete and
accurate compliance reports at such times, and in such form and
containing such information, as the responsible Department official may
determine to be necessary to enable him to ascertain whether the
recipient has complied or is complying with this part. In general,
recipients should have available for the Department racial and ethnic
data showing the extent to which members of minority groups are
beneficiaries of federally assisted programs. In the case of any program
under which a primary recipient extends Federal financial assistance to
any other recipient, such other recipient shall also submit such
compliance reports to the primary recipient as may be necessary to
enable the primary recipient to carry out its obligations imposed
pursuant to this part.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official during normal business
hours to such of its books, records, accounts, and other sources of
information, and its facilities as may be pertinent to ascertain
compliance with this part. Where any information required of a recipient
is in the exclusive possession of any other institution or person and
this institution or person shall fail or refuse to furnish this
information, the recipient shall so certify in its report and shall set
forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible Department official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]
Sec. 195.8 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official
or his designee(s) shall from time to time review the practices of
recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this part may by himself or by a representative file with the
responsible Department official a written complaint. A complaint must be
filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official.
(c) Investigations. The responsible Department official will make a
prompt investigation whenever a compliance review, report, complaint, or
any other information indicates a possible failure to comply with this
part. The investigation should include, where appropriate, a review of
the pertinent practices and policies of the recipient, the circumstances
under which the possible noncompliance with this part occurred, and
other factors relevant to a determination of whether the recipient has
failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible Department official will so inform the
[[Page 32]]
recipient and the matter will be resolved by informal means whenever
possible. If it has been determined that the matter cannot be resolved
by informal means, action will be taken as provided in Sec. 195.9.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, the responsible Department official
will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall not be disclosed except when necessary to
carry out the purposes of this part including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1974.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.9 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law as determined by the responsible Department
official. Such other means may include, but are not limited to (1) a
reference to the Department of Justice with a recommendation that
appropriate proceedings be brought to enforce any rights of the United
States under any law of the United States (including other titles of the
Act), or any assurance or other contractual undertaking, and (2) any
applicable proceedings under State or local law.
(b) Noncompliance with Sec. 195.6. If an applicant fails or refuses
to furnish an assurance required under Sec. 195.6 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The component of the
Department of Defense concerned shall not be required to provide
assistance in such a case during the pendency of the administrative
proceedings under such paragraph except that the component shall
continue assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application therefor
approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. Except as provided in paragraph (b) of this
section no order suspending, terminating or refusing to grant or
continue Federal financial assistance shall become effective until (1)
the responsible Department official has advised the applicant or
recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means, (2) there has been an express
finding, after opportunity for a hearing (as provided in Sec. 195.10),
of a failure by the applicant or recipient to comply with a requirement
imposed by or pursuant to this part, (3) the action has been approved by
the Secretary of Defense pursuant to Sec. 195.11, and (4) the
expiration of 30 days after the Secretary of Defense has filed with the
committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for such action. Any action
to suspend or terminate or to refuse to grant or to continue Federal
financial assistance shall be limited to the particular political
entity, or part thereof, or other applicant or recipient as to whom such
a finding has been made and shall be limited in its effect to the
particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to affect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the action has been approved
[[Page 33]]
by the Assistant Secretary of Defense (Manpower), (3) the recipient or
other person has been notified of its failure to comply and of the
action to be taken to effect compliance, and (4) the expiration of at
least 10 days from the mailing of such notice to the recipient or other
person. During this period of at least 10 days additional efforts shall
be made to persuade the recipient or other person to comply with this
part and to take such corrective action as may be appropriate.
[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. 195.10 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 195.9, reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and either
(1) fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
Department official that the matter be scheduled for hearing or (2)
advise the applicant or recipient that the matter in question has been
set down for hearing at a stated place and time. The time and place so
fixed shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of hearing.
An applicant or recipient may waive a hearing and submit written
information and argument. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and Sec. 195.11(c) and consent
to the making of a decision on the basis of such information as is
available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the responsible component of the Department of Defense in Washington,
D.C., at a time fixed by the responsible Department official unless he
determines that the convenience of the applicant or recipient or of the
component requires that another place be selected. Hearings shall be
held before the responsible Department official or, at his discretion,
before a hearing examiner designated by him.
(c) Hearing examiner. The examiner shall be a field grade officer or
civilian employee above the grade of GS-12 (or the equivalent) who shall
be a person admitted to practice law before a Federal court or the
highest court of a State.
(d) Right to counsel. In all proceedings under this section, the
applicant or recipient and the responsible component of the Department
shall have the right to be represented by counsel.
(e) Procedures. (1) The recipient shall receive an open hearing at
which he or his counsel may examine any witnesses present. Both the
responsible Department official and the applicant or recipient shall be
entitled to introduce all relevant evidence on the issues as stated in
the notice for hearing or as determined by the officer conducting the
hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for record shall be open
to examination by the parties and opportunity shall be given to refute
facts and arguments advanced on either side of the issues. A transcript
shall be made of the oral evidence except to the extent the substance
thereof is stipulated for the record. All decisions shall be based upon
the hearing record and written findings shall be made.
(f) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with
[[Page 34]]
this part and the regulations of one or more other Federal departments
or agencies issued under Title VI of the Act, the Assistant Secretary of
Defense (Manpower), the Secretary of a Military Department, or other
responsible Department official designated by the Assistant Secretary of
Defense (Manpower) after consultation with the Assistant Secretary of
Defense (Manpower) may, by agreement with such other departments or
agencies where applicable, provide for the conduct of consolidated or
joint hearings, and for the application to such hearings of appropriate
procedures not inconsistent with this part. Final decisions in such
cases, insofar as this part is concerned, shall be made in accordance
with Sec. 195.11.
[29 FR 19291, Dec. 31, 1964, as amended at 30 FR 133, Jan. 7, 1965.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.11 Decisions and notices.
(a) Decision by person other than the responsible department
official. If the hearing is held by a hearing examiner such hearing
examiner shall either make an initial decision, if so authorized, or
certify the entire record including his recommended findings and
proposed decision to the responsible Department official for a final
decision, and a copy of such initial decision or certification shall be
mailed to the applicant or recipient. Where the initial decision is made
by the hearing examiner the applicant or recipient may within 30 days of
the mailing of such notice of initial decision file with the responsible
Department official his exceptions to the initial decision, with his
reasons therefor. In the absence of exceptions, the responsible
Department official may on his own motion within 45 days after the
initial decision serve on the applicant or recipient a notice that he
will review the decision. Upon the filing of such exceptions or of such
notice of review the responsible Department official shall review the
initial decision and issue his own decision thereon including the
reasons therefor. In the absence of either exceptions or a notice of
review the initial decision shall constitute the final decision of the
responsible Department official.
(b) Decisions on record or review by the responsible department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing examiner
pursuant to paragraph (a) of this section or whenever the responsible
Department official conducts the hearing, the applicant or recipient
shall be given reasonable opportunity to file with him briefs or other
written statements of its contentions, and a copy of the final decision
of the responsible Department official shall be given in writing to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 195.10(a), a decision shall be made
by the responsible Department official on the record and a copy of such
decision shall be given in writing to the applicant or recipient, and to
the complainant, if any.
(d) Rulings required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the applicant or recipient has failed to comply.
(e) Approval by the Secretary of Defense. Any final decision of a
responsible Department official which provides for the suspension or
termination of, or the refusal to grant or continue Federal financial
assistance, or the imposition of any other sanction available under this
part or the Act, shall promptly be transmitted to the Secretary of
Defense, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Contents of orders. The final decision may provide for
suspension or termination of, or refusal to grant or continue Federal
financial assistance, in whole or in part, under the program involved,
and may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
part, including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program to the
applicant or recipient determined by such decision to be in
[[Page 35]]
default in its performance of an assurance given by it pursuant to this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies the responsible
Department official that it will fully comply with this part.
(g) Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the applicant or
recipient has met the requirements of paragraph (g)(1) of this section.
If the responsible Department official determines that those
requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request,
the applicant or recipient may submit a request for a hearing in
writing, specifying why it believes such official to have been in error.
It shall thereupon be given an expeditious hearing, with a decision on
the record, in accordance with rules of procedure issued by the
responsible Department official. The applicant or recipient will be
restored to such eligibility if it proves at such a hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this subsection are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.12 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 195.13 Effect on other issuances.
All issuances heretofore issued by any officer of the Department of
Defense or its components which impose requirements designed to prohibit
any discrimination against individuals on the ground of race, color, or
national origin under any program to which this part applies, and which
authorize the suspension or termination of or refusal to grant or to
continue Federal financial assistance to any applicant for or recipient
of such assistance under such program for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any person of any obligation assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to the effective date of this part. Nothing in this
part, however, shall be deemed to supersede any of the following
(including future amendments thereof):
(a) Executive Orders 10925 and 11114 and issuances thereunder,
(b) The ``Standards for a Merit System of Personnel
Administration,'' issued jointly by the Secretaries of Defense, of
Health, Education, and Welfare, and of Labor, 28 FR 734, or
(c) Executive Order 11063 and issuances thereunder, or any other
issuances, insofar as such Order or issuances prohibit discrimination on
the ground of race, color, or national origin in any program or
situation to which this part is inapplicable, or prohibit discrimination
on any other ground.
Sec. 195.14 Implementation.
The Secretary of each Military Department shall submit regulations
implementing this part to the Assistant Secretary of Defense (Manpower).
Sec. Appendix A to Part 195--Programs to Which This Part Applies
1. The Army and Air National Guard (Title 32, United States Code).
[[Page 36]]
2. Various programs involving loan or other disposition of surplus
property (various general and specialized statutory provisions
including: 40 United States Code 483, 484, 512; 49 United States Code
1101-1119; 10 United States Code 2541, 2542, 2543, 2572, 2662, 7308,
7541, 7542, 7545, 7546, 7547).
3. National Program for Promotion of Rifle Practice (10 United
States Code 4307 and annual Department of Defense Appropriation Act).
4. National Defense Cadet Corps Program (10 United States Code
3540(b), 4651).
5. Office of Civil Defense assistance to programs of adult education
in civil defense subjects (50 United States Code App. 2281 (e), (f)).
6. Office of Civil Defense radiological instruments grants (50
United States Code App. 2281(h)).
7. Office of Civil Defense program (with Public Health Service) for
development of instructional materials on medical self-help (50 United
States Code App. 2281 (e), (f)).
8. Office of Civil Defense university extension programs for civil
defense instructor training (50 United States Code App. 2281 (e)).
9. Office of Civil Defense programs for survival supplies and
equipment, survival training, emergency operating center construction,
and personnel and administrative expenses (50 United States Code App.
2281(i), 2285).
10. Office of Civil Defense Shelter Provisioning Program (50 United
States Code App. 2281(h)).
11. Office of Civil Defense assistance to students attending Office
of Civil Defense schools (50 United States Code App. 2281(e)).
12. Office of Civil Defense loans of equipment or materials from OCD
stockpiles for civil defense, including local disaster purposes (50
United States Code App. 2281).
13. Navy Science Cruiser Program (SecNav Instruction 5720.19A).
14. Civil Air Patrol (10 United States Code 9441).
15. Research grants made under the authority of Pub. L. 85-934 (42
United States Code 1892).
16. Contracts with nonprofit institutions of higher education or
with nonprofit organizations whose primary purpose is the conduct of
scientific research, wherein title to equipment purchased with funds
under such contracts may be vested in such institutions or organizations
under the authority of Pub. L. 85-934 (42 United States Code 1891).
17. Army Corps of Engineers participation in cooperative
investigations and studies concerning erosion of shores of coastal and
lake waters (33 United States Code 426).
18. Army Corps of Engineers assistance in the construction of works
for the restoration and protection of shores and beaches (33 United
States Code 426e-h).
19. Public park and recreational facilities at water resource
development projects under the administrative jurisdiction of the
Department of the Army (16 United States Code 460d and Federal Water
Project Recreation Act, Pub. L. 89-72, 79 Stat. 218, July 9, 1965).
20. Payment to States of proceeds of lands acquired by the United
States for flood control, navigation, and allied purposes (33 United
States Code 701-c-3).
21. Grants of easements without consideration, or at a nominal or
reduced consideration, on lands under the control of the Department of
the Army at water resource development projects (33 United States Code
558c and 702d-1; 10 United States Code 2668 and 2669); 43 United States
Code 961; 40 United States Code 319).
22. Army Corps of Engineers assistance in the construction of small
boat harbor projects (33 United States Code 540 and 577, and 47 Stat.
42, Feb. 10, 1932).
23. Emergency bank protection works constructed by the Army Corps of
Engineers for protection of highways, bridge approaches, and public
works (33 United States Code 701r).
24. Assistance to States and local interests in the development of
water supplies for municipal and industrial purposes in connection with
Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43
United States Code 390b).
25. Army Corps of Engineers contracts for remedial works under
authority of section 111 of Act of July 3, 1958 (33 United States Code
633).
[29 FR 19291, Dec. 31, 1964, as amended at 31 FR 6831, May 7, 1966]
PART 196_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--
Table of Contents
Subpart A_Introduction
Sec.
196.100 Purpose and effective date.
196.105 Definitions.
196.110 Remedial and affirmative action and self-evaluation.
196.115 Assurance required.
196.120 Transfers of property.
196.125 Effect of other requirements.
196.130 Effect of employment opportunities.
196.135 Designation of responsible employee and adoption of grievance
procedures.
196.140 Dissemination of policy.
Subpart B_Coverage
196.200 Application.
[[Page 37]]
196.205 Educational institutions and other entities controlled by
religious organizations.
196.210 Military and merchant marine educational institutions.
196.215 Membership practices of certain organizations.
196.220 Admissions.
196.225 Educational institutions eligible to submit transition plans.
196.230 Transition plans.
196.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
196.300 Admission.
196.305 Preference in admission.
196.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
196.400 Education programs or activities.
196.405 Housing.
196.410 Comparable facilities.
196.415 Access to course offerings.
196.420 Access to schools operated by LEAs.
196.425 Counseling and use of appraisal and counseling materials.
196.430 Financial assistance.
196.435 Employment assistance to students.
196.440 Health and insurance benefits and services.
196.445 Marital or parental status.
196.450 Athletics.
196.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
196.500 Employment.
196.505 Employment criteria.
196.510 Recruitment.
196.515 Compensation.
196.520 Job classification and structure.
196.525 Fringe benefits.
196.530 Marital or parental status.
196.535 Effect of state or local law or other requirements.
196.540 Advertising.
196.545 Pre-employment inquiries.
196.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
196.600 Notice of covered programs.
196.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52885, Aug. 30, 2000, unless otherwise noted.
Subpart A_Introduction
Sec. 196.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 196.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means Assistant Secretary of Defense
(Force Management Policy).
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by
[[Page 38]]
the Federal agency that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of
[[Page 39]]
Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
196.100 through 196.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 196.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 196.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec.
196.110(a) to eliminate existing discrimination on the basis of sex or
to eliminate the effects of past discrimination whether occurring prior
to or subsequent to the submission to the designated agency official of
such assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the
[[Page 40]]
transferee, for the period during which the real property or structures
are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 196.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 196.205 through 196.235(a).
Sec. 196.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 196.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 196.135 Designation of responsible employee and adoption
of grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations.
[[Page 41]]
The recipient shall notify all its students and employees of the name,
office address, and telephone number of the employee or employees
appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 196.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 196.300 through 196.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 196.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B_Coverage
Sec. 196.200 Application.
Except as provided in Sec. Sec. 196.205 through 196.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
Sec. 196.205 Educational institutions and other entities controlled
by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes
[[Page 42]]
to claim the exemption set forth in paragraph (a) of this section shall
do so by submitting in writing to the designated agency official a
statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 196.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 196.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 196.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 196.225 and 196.230, and Sec. Sec. 196.300 through
196.310, each administratively separate unit shall be deemed to be an
educational institution.
(c) Application of Sec. Sec. 196.300 through 196.310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 196.300
through 196.310 apply to each recipient. A recipient to which Sec. Sec.
196.300 through 196.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 196.300 through
196.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 196.300 through 196.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Sec. Sec. 196.300 through 196.310 do not apply to any public
institution of undergraduate higher education that traditionally and
continually from its establishment has had a policy of admitting
students of only one sex.
Sec. 196.225 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 196.300 through 196.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 196.300 through
196.310.
Sec. 196.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 196.225
applies and that is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all such
units, or a separate transition plan applicable to each such unit.
[[Page 43]]
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 196.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 196.300 through
196.310 unless such treatment is necessitated by an obstacle identified
in paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 196.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 196.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
[[Page 44]]
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 196.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 196.300 through Sec. Sec. 196.310 apply,
except as provided in Sec. Sec. 196.225 and Sec. Sec. 196.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 196.300 through 196.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the
[[Page 45]]
basis of sex unless the use of such test or criterion is shown to
predict validly success in the education program or activity in question
and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 196.300 through 196.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 196.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 196.305 Preference in admission.
A recipient to which Sec. Sec. 196.300 through 196.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Sec. Sec. 196.300 through 196.310.
Sec. 196.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
196.300 through 196.310 apply shall not discriminate on the basis of sex
in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as
remedial action pursuant to Sec. 196.110(a), and may choose to
undertake such efforts as affirmative action pursuant to Sec.
196.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 196.300 through 196.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 196.300 through 196.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 196.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
196.400 through 196.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Sec. Sec. 196.300 through 196.310 do
not apply, or an entity, not a recipient, to which Sec. Sec. 196.300
through 196.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 196.400
through 196.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
[[Page 46]]
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 196.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization,
[[Page 47]]
or person that provides all or part of such housing to students of only
one sex.
Sec. 196.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 196.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 196.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 196.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
[[Page 48]]
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 196.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 196.450.
Sec. 196.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
196.500 through 196.550.
Sec. 196.440 Health and insurance benefits and services.
Subject to Sec. 196.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 196.500 through 196.550 if it were provided to
employees of the recipient.
[[Page 49]]
This section shall not prohibit a recipient from providing any benefit
or service that may be used by a different proportion of students of one
sex than of the other, including family planning services. However, any
recipient that provides full coverage health service shall provide
gynecological care.
Sec. 196.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 196.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 196.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
[[Page 50]]
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 196.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 196.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 196.500
through 196.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 196.500 through
196.550 apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
[[Page 51]]
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 196.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 196.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 196.500 through 196.550.
Sec. 196.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 196.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 196.550.
Sec. 196.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 196.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
[[Page 52]]
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 196.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec.
196.235(d), a recipient shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy, recovery therefrom, and any
temporary disability resulting therefrom as any other temporary
disability for all job-related purposes, including commencement,
duration, and extensions of leave, payment of disability income, accrual
of seniority and any other benefit or service, and reinstatement, and
under any fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 196.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 196.500 through 196.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 196.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 196.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 196.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec.
196.500 through 196.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
sex with regard to such action
[[Page 53]]
is essential to successful operation of the employment function
concerned. A recipient shall not take action pursuant to this section
that is based upon alleged comparative employment characteristics or
stereotyped characterizations of one or the other sex, or upon
preference based on sex of the recipient, employees, students, or other
persons, but nothing contained in this section shall prevent a recipient
from considering an employee's sex in relation to employment in a locker
room or toilet facility used only by members of one sex.
Subpart F_Procedures
Sec. 196.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 196.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 32 CFR 195.7 through 195.12.
[65 FR 52885, Aug. 30, 2000]
PART 197_HISTORICAL RESEARCH IN THE FILES OF THE OFFICE OF THE
SECRETARY OF DEFENSE (OSD)--Table of Contents
Sec.
197.1 Purpose.
197.2 Applicability.
197.3 Definitions.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.
Appendix A to Part 197--Explanation of FOIA Exemptions and
Classification Categories
Authority: 5 U.S.C. 301, Executive Order 13526, 5 U.S.C. 552b, and
Pub. L. 102-138.
Source: 80 FR 65935, Oct. 28, 2015, unless otherwise noted.
Sec. 197.1 Purpose.
This part, in accordance with the authority in DoD Directive 5110.4,
implements policy and updates procedures for the programs that permit
authorized personnel to perform historical research in records created
by or in the custody of Office of the Secretary of Defense (OSD)
consistent with Executive Order 13526; DoD Manual 5230.30, ``DoD
Mandatory Declassification Review (MDR) Program'' (available at http://
www.dtic.mil/whs/directives/corres/pdf/523030m.pdf); 32 CFR part 286; 32
CFR part 310; DoD Manual 5200.01, ``DoD Information Security Program''
Volumes 1-4 (available at http://www.dtic.mil/whs/directives/corres/pdf/
520001_vol1.pdf, http://www.dtic.mil/whs/directives/corres/pdf/
520001_vol2.pdf, http://www.dtic.mil/whs/directives/corres/pdf/
520001_vol3.pdf, and http://www.dtic.mil/whs/directives/corres/pdf/
520001_vol4.pdf); 36 CFR 1230.10 and 36 CFR part 1236; DoD Directive
5230.09, ``Clearance of DoD Information for Public Release'' (available
at http://www.dtic.mil/whs/directives/corres/pdf/523009p.pdf); and 32
CFR 197.5.
Sec. 197.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Defense
Agencies, and the DoD Field Activities in the National Capital Region
that are serviced by Washington Headquarters Services (WHS) (referred to
collectively in this part as the ``WHS-Serviced Components'').
(b) All historical researchers as defined in Sec. 197.3.
(c) Cabinet Level Officials, Former Presidential Appointees (FPAs)
to include their personnel, aides and researchers, seeking access to
records containing information they originated, reviewed, signed, or
received while serving in an official capacity.
Sec. 197.3 Definitions.
The following definitions apply to this part:
[[Page 54]]
Access. The availability of or the permission to consult records,
archives, or manuscripts. The ability and opportunity to obtain
classified, unclassified, or administratively controlled information or
records.
Electronic records. Records stored in a form that only a computer
can process and satisfies the definition of a federal record, also
referred to as machine-readable records or automatic data processing
records (including email).
Historical researchers or requestors. A person approved to conduct
research in OSD files for historical information to use in a DoD
approved project (e.g., agency historical office projects, books,
articles, studies, or reports), regardless of the person's employment
status. Excluded are Military personnel assigned to OSD; OSD employees,
contractors, and students conducting research in response to academic
requirements.
Records (also referred to as federal records or official records).
All books, papers, maps, photographs, machine-readable materials, or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the U.S. Government
under federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by that agency or
its legitimate successor as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities of the
U.S. Government or because of the informational value of data in them.
Sec. 197.4 Policy.
It is OSD policy that:
(a) Pursuant to Executive Order 13526, anyone requesting access to
classified material must possess the requisite security clearance.
(b) Members of the public seeking the declassification of DoD
documents under the provisions of section 3.5 of Executive Order 13526
will contact the appropriate OSD Component as listed in DoD Manual
5230.30.
(c) Records and information requested by FPA and approved historical
researchers will be accessed at a facility under the control of the
National Archives and Records Administration (NARA), NARA's Archives II
in College Park, Maryland, a Presidential library, or an appropriate
U.S. military facility or a DoD activity in accordance with Vol 3 of DoD
Manual 5200.01, ``DoD Information Security Program,'' February 24, 2012,
as amended.
(d) Access to records and information will be limited to the
specific records within the scope of the proposed research request over
which OSD has authority and to any other records for which the written
consent of other agencies with authority has been granted in accordance
with Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,''
February 24, 2012, as amended.
(e) Access to unclassified OSD Component records and information
will be permitted consistent with the restrictions of the exemptions of
5 U.S.C. 552(b) (also known and referred to in this part as the
``Freedom of Information Act'' (FOIA), 32 CFR part 286, Sec. 197.5 of
this part, and consistent with 32 CFR part 310. The procedures for
access to classified information will be used if the requested
unclassified information is contained in OSD files whose overall
markings are classified.
(f) Except as otherwise provided in DoD Manual 5200.01 volume 3, no
person may have access to classified information unless that person has
been determined to be trustworthy and access is essential to the
accomplishment of a lawful and authorized purpose.
(g) Persons outside the Executive Branch who are engaged in approved
historical research projects may be granted access to classified
information, consistent with the provisions of Executive Order 13526 and
DoD Manual 5200.01 volume 1 provided that the OSD official with
classification jurisdiction over that information grants access.
(h) Contractors working for Executive Branch agencies may be allowed
access to classified OSD Component files provided the contractors meet
all the required criteria for such access as an historical researcher
including the appropriate level of personnel security clearance set
forth in paragraphs (a) and (i) of this section. No copies of OSD
records and information may be released directly to the contractors. The
Washington Headquarters Services
[[Page 55]]
Records and Declassification Division (WHS/RDD) will be responsible for
ensuring that the contractor safeguards the documents and the
information is only used for the project for which it was requested per
section 4.1 of Executive Order 13526, ``Classified National Security
Information,'' December 29, 2009.
(i) All DoD-employed requesters, to include DoD contractors, must
have critical nuclear weapons design information (CNWDI) to access CNWDI
information. All other non DoD and non-Executive Branch personnel must
have a Department of Energy-issued ``Q'' clearance to access CNWDI
information in accordance with DoD Manual 5220.22, ``National Industrial
Security Program Operating Manual (NISPOM),'' February 28, 2006, as
amended.
(j) The removal of federal records and information from OSD custody
is not authorized; this includes copies and email according to 36 CFR
1230.10. Copies of records and information that are national security
classified will remain under the control of the agency.
(k) Access for FPAs is limited to records they originated, reviewed,
signed, or received while serving as Presidential appointees, unless
there is another basis for providing access in accordance with Vol 3 of
DoD Manual 5200.01, ``DoD Information Security Program,'' February 24,
2012, as amended.
(l) Authorization is required from all agencies whose classified
information is, or is expected to be, in the requested files prior to
granting approval for access. Separate authorizations for access to
records and information maintained in OSD Component office files or at
the federal records centers will not be required in accordance with Vol
3 of DoD Manual 5200.01, ``DoD Information Security Program,'' February
24, 2012, as amended.
Sec. 197.5 Responsibilities.
(a) The Director of Administration (DA), Office of the Deputy Chief
Management Officer (ODCMO), or designee is the approval authority for
access to DoD information in OSD Component files and in files at the
National Archives, Presidential libraries, and other similar
institutions in accordance with DoD Directive 5110.4 and DoD Manual
5230.30.
(b) OSD Records Administrator. Under the authority, direction, and
control of the DA, ODCMO, the OSD Records Administrator:
(1) Exercises approval authority for research access to OSD and WHS
Serviced Components records, information, and the Historical Research
Program.
(2) Maintains records necessary to process and monitor each case.
(3) Obtains all required authorizations.
(4) Obtains, when warranted, the legal opinion of the General
Counsel of the Department of Defense regarding the requested access.
(5) Coordinates, with the originator, on the public release review
on documents selected by the researchers for use in unclassified
projects in accordance with DoD Directive 5230.09 and DoD Instruction
5230.29, ``Security and Policy Review of DoD Information for Public
Release'' (available at http://www.dtic.mil/whs/directives/corres/pdf/
523029p.pdf).
(6) Coordinates requests with the OSD Historian.
(7) Provides prospective researchers the procedures necessary for
requesting access to OSD Component files.
(c) The WHS-serviced Components heads, when requested:
(1) Determine whether access is for a lawful and authorized
government purpose or in the interest of national security.
(2) Determine whether the specific records requested are within the
scope of the proposed historical research.
(3) Determine the location of the requested records.
(4) Provide a point of contact to the OSD Records Administrator.
Sec. 197.6 Procedures.
(a) Procedures for historical researchers permanently assigned
within the Executive Branch working on official projects. (1) In
accordance with Sec. 197.5, the WHS-serviced Components heads, when
requested, will:
(i) Make a written determination that the requested access is
essential to the accomplishment of a lawful and authorized U.S.
Government purpose,
[[Page 56]]
stating whether the requested records can be made available. If
disapproved, cite specific reasons.
(ii) Provide the location of the requested records, including
accession and box numbers if the material has been retired to the
Washington National Records Center (WNRC).
(iii) Provide a point of contact for liaison with the OSD Records
Administrator if any requested records are located in OSD Component
working files.
(2) The historical researcher or requestor will:
(i) Submit a request for access to OSD files to: OSD Records
Administrator, WHS/Records and Declassification Division, 4800 Mark
Center Drive, Suite 02F09-02, Alexandria, VA 22350-3100.
(ii) All requests must be signed by an appropriate official and must
contain:
(A) The name(s) of the researcher(s) and any assistant(s), level of
security clearance, and the federal agency, institute, or company to
which the researcher is assigned.
(B) A statement on the purpose of the project, including whether the
final product is to be classified or unclassified.
(C) An explicit description of the information being requested and,
if known, the originating office, so that the identification and
location of the information may be facilitated.
(D) Appropriate higher authorization of the request.
(E) Ensure researcher's security manager or personnel security
office verifies his or her security clearances in writing to the OSD
Records Administrator's Security Manager.
(iii) Maintain the file integrity of the records being reviewed,
ensuring that no records are removed and that all folders are replaced
in the correct box in their proper order.
(iv) Make copies of any documents pertinent to the project, ensuring
that staples are carefully removed and that the documents are re-stapled
before they are replaced in the folder.
(v) Submit the completed manuscript for review prior to public
presentation or publication to:
WHS/Chief, Security Review Division, Office of Security Review, 1155
Defense Pentagon, Washington, DC 20301-1155.
(vi) If the requester is an official historian of a federal agency
requiring access to DoD records at the National Archives facilities or a
Presidential library, the requested must be addressed directly to the
pertinent facility with an information copy sent to the OSD Records
Administrator. The historian's security clearances must be verified to
the National Archives or the Presidential library.
(3) The use of computers, laptops, computer tablets, personal
digital assistants, recorders, or similar devices listed in Sec.
197.6(f) is prohibited. Researchers will use letter-sized paper
(approximately 8\1/2\ by 11 inches), writing on only one side of the
page. Each page of notes must pertain to only one document.
(4) The following applies to all notes taken during research:
(i) All notes are considered classified at the level of the document
from which they were taken.
(ii) Indicate at the top of each page of notes the document:
(A) Originator.
(B) Date.
(C) Subject (if the subject is classified, indicate the
classification).
(D) Folder number or other identification.
(E) Accession number and box number in which the document was found.
(F) Security classification of the document.
(iii) Number each page of notes consecutively.
(iv) Leave the last 1\1/2\ inches on the bottom of each page of
notes blank for use by the reviewing agencies.
(v) Ensure the notes are legible, in English, and in black ink.
(vi) All notes must be given to the staff at the end of each day.
The facility staff will forward the notes to the OSD Records
Administrator for an official review and release to the researcher.
(5) The OSD Records Administrator will:
(i) Process all requests from Executive Branch employees requesting
access to OSD Component files for official projects.
(ii) Determine which OSD Component originated the requested records
and, if
[[Page 57]]
necessary, request an access determination from the OSD Component and
the location of the requested records, including but not limited to
electronic information systems, databases or accession number and box
numbers if the hardcopy records have been retired offsite.
(iii) Request authorization for access from other OSD Component as
necessary.
(A) Official historians employed by federal agencies may have access
to the classified information of any other agency found in DoD files, as
long as authorization for access has been obtained from these agencies.
(B) If the requester is not an official historian, authorization for
access must be obtained from the Central Intelligence Agency (CIA),
National Security Council (NSC), Department of State (DOS), and any
other non-DoD agency whose classified information is expected to be
found in the files to be accessed.
(iv) Make a written determination as to the researcher's
trustworthiness based on the researcher having been issued a security
clearance.
(v) Compile all information on the request for access to classified
information, to include evidence of an appropriately issued personnel
security clearance, and forward the information to the DA, ODCMO; OSD
Component or designee, who will make the access determination.
(vi) Notify the researcher of the authorization and conditions for
access to the requested records or of the denial of access and the
reason(s).
(vii) Ensure that all conditions for access and release of
information for use in the project are met.
(viii) Make all necessary arrangements for the researcher to visit
the review location and review the requested records.
(ix) Provide all requested records and information under OSD control
in electronic formats consistent with 36 CFR part 1236. For all other
information, a staff member will be assigned to supervise the
researcher's copying of pertinent documents at the assigned facility.
(x) If the records are maintained in the OSD Component's working
files, arrange for the material to be converted to electronic format for
the researchers to review.
(xi) Notify the National Archives, Presidential library, or military
facility of the authorization and access conditions of all researchers
approved to research OSD records held in those facilities.
(b) Procedures for the DOS Foreign Relations of the United States
(FRUS) series. (1) The DOS historians will:
(i) Submit requests for access to OSD files. The request should list
the names and security clearances for the historians doing the research
and an explicit description, including the accession and box numbers, of
the files being requested. Submit request to: OSD Records Administrator,
WHS/Records and Declassification Division, 4800 Mark Center Dr, Suite
02F09-02, Alexandria, VA 22380-2100.
(ii) Submit to the OSD Records Administrator requests for access for
members of the Advisory Committee on Historical Diplomatic Documentation
to documents copied by the DOS historians for the series or the files
reviewed to obtain the documents.
(iii) Request that the DOS Diplomatic Security staff verify all
security clearances in writing to the OSD Records Administrator's
Security Manager.
(iv) Give all document copies to the OSD Records Administrator staff
member who is supervising the copying as they are made.
(v) Submit any OSD documents desired for use or pages of the
manuscript containing OSD classified information for declassification
review prior to publication to the Chief, Security Review Division at:
WHS/Chief, Security Review Division, Office of Security Review, 1155
Defense Pentagon, Washington, DC 20301-1155.
(2) The OSD Records Administrator will:
(i) Determine the location of the records being requested by the DOS
for the FRUS series according to Title IV of Public Law 102-138, ``The
Foreign Relations of the United States Historical Series.''
(ii) Act as a liaison with the CIA, NSC, and any other non-OSD
agency for access by DOS historians to records
[[Page 58]]
and information and such non-DoD agency classified information expected
to be interfiled with the requested OSD records.
(iii) Obtain written verification from the DOS Diplomatic Security
staff of all security clearances, including ``Q'' clearances.
(iv) Make all necessary arrangements for the DOS historians to
access, review, and copy documents selected for use in their research in
accordance with procedures in accordance with Sec. 197.6(a).
(v) Provide a staff member to supervise document copying in
accordance with the guidance provided in Sec. 197.6(d) of this part.
(vi) Compile a list of the documents that were copied by the DOS
historians.
(vii) Scan and transfer copies to DOS in NARA an approved electronic
format.
(viii) Submit to the respective agency a list of CIA and NSC
documents copied and released to the DOS historians.
(ix) Process DOS Historian Office requests for members of the
Advisory Committee on Historical Diplomatic Documentation with
appropriate security clearances to have access to documents copied and
used by the DOS historians to compile the FRUS series volumes or to the
files that were reviewed to obtain the copied documents. Make all
necessary arrangements for the Advisory Committee to review any
documents that are at the WNRC.
(c) Procedures for historical researchers not permanently assigned
to the Executive Branch. (1) The WHS-serviced Components heads, when
required, will:
(i) Recommend to the DA, ODCMO, or his or her designee, approval or
disapproval of requests to access OSD information. State whether access
to, release, and clearance of the requested information is in the
interest of national security and whether the information can be made
available. If disapproval is recommended, specific reasons should be
cited.
(ii) Provide the location of the requested information, including
but not limited to the office, component, information system or
accession and box numbers for any records that have been retired to the
WNRC.
(iii) Provide a point of contact for liaison with the OSD Records
Administrator if any requested records are located in OSD Component
working files.
(2) The OSD Records Administrator will:
(i) Process all requests from non-Executive Branch researchers for
access to OSD or WHS-serviced Components files. Certify via the WHS
Security Officer that the requester has the appropriate clearances.
(ii) Determine which OSD Component originated the requested records
and, as necessary, obtain written recommendations for the research to
review the classified information.
(iii) Obtain prior authorization to review their classified
information from the DOS, CIA, NSC, and any other agency whose
classified information is expected to be interfiled with OSD records.
(iv) Obtain agreement from the researcher(s) and any assistant(s)
that they will comply with conditions governing access to the classified
information (see Figure to Sec. 197.6).
[[Page 59]]
[GRAPHIC] [TIFF OMITTED] TR28OC15.012
[[Page 60]]
[GRAPHIC] [TIFF OMITTED] TR28OC15.013
[[Page 61]]
[GRAPHIC] [TIFF OMITTED] TR28OC15.014
(v) If the requester is an FPA, submit a memorandum after completion
of the actions described in this part to WHS, Human Resources
Directorate, Security Operations Division, requesting the issuance
(including an interim) or reinstatement of an inactive security
[[Page 62]]
clearance for the FPA and any assistant and a copy of any signed form
letters. The Security Division will contact the researcher(s) and any
assistant(s) to obtain the forms required to reinstate or initiate the
personnel security investigation to obtain a security clearance. Upon
completion of the adjudication process, notify the OSD Records
Administrator in writing of the reinstatement, issuance, or denial of a
security clearance.
(vi) Make a written determination as to the researcher's
trustworthiness based on his or her having been issued a security
clearance.
(vii) Compile all information on the request for access to
classified information, to include either evidence of an appropriately
issued or reinstated personnel security clearance. Forward the
information to the DA, ODCMO or designee, who will make the final
determination on the applicant's eligibility for access to classified
OSD or WHS-serviced Component files. If the determination is favorable,
the DA, ODCMO or designee will then execute an authorization for access,
which will be valid for not more than 2 years.
(viii) Notify the researcher of the approval or disapproval of the
request. If the request has been approved, the notification will
identify the files authorized for review and specify that the
authorization:
(A) Is approved for a predetermined time period.
(B) Is limited to the designated files.
(C) Does not include access to records and/or information of other
federal agencies, unless such access has been specifically authorized by
those agencies.
(ix) Make all necessary arrangements for the researcher to visit the
WNRC and review any requested records that have been retired there, to
include written authorization, conditions for the access, and a copy of
the security clearance verification.
(x) If the requested records are at the WNRC, make all necessary
arrangements for the scanning of documents.
(xi) If the requested records are maintained in OSD or WHS-serviced
Component working files, make arrangements for the researcher to review
the requested information and, if authorized, copy pertinent documents
in the OSD or WHS-serviced Component's office. Provide the OSD Component
with a copy of the written authorization and conditions under which the
access is permitted.
(xii) Compile a list of all the documents requested by the
researcher.
(xiii) Coordinate the official review on all notes taken and
documents copied by the researcher.
(xiv) If the classified information to be reviewed is on file at the
National Archives, a Presidential library, or other facility, notify the
pertinent facility in writing of the authorization and conditions for
access.
(3) The researcher will:
(i) Submit a request for access to OSD Component files to OSD
Records Administrator, WHS/Records and Declassification Division, 4800
Mark Center Drive, Suite 02F09-02, Alexandria VA 22350-3100. The request
must contain:
(A) As explicit a description as possible of the information being
requested so that identification and location of the information may be
facilitated.
(B) A statement as to how the information will be used, including
whether the final project is to be classified or unclassified.
(C) A statement as to whether the researcher has a security
clearance, including the level of clearance and the name of the issuing
agency.
(D) The names of any persons who will be assisting the researcher
with the project. If the assistants have security clearances, provide
the level of clearance and the name of the issuing agency.
(E) A signed copy of their agreement (see Figure) to safeguard the
information and to authorize a review of any notes and manuscript for a
determination that they contain no classified information. Each project
assistant must also sign a copy of the letter.
(F) The forms necessary to obtain a security clearance, if the
requester is an FPA without an active security clearance. Each project
assistant without an active security clearance will also need to
complete these forms. If
[[Page 63]]
the FPA or assistant have current security clearances, their personnel
security office must provide verification in writing to the OSD Records
Administrator's Security Manager.
(ii) Maintain the integrity of the files being reviewed, ensuring
that no records are removed and that all folders are replaced in the
correct box in their proper order.
(iii) If copies are authorized, give all copies to the custodian of
the files at the end of each day. The custodian will forward the copies
of the documents to the OSD Records Administrator for a declassification
review and release to the requester.
(A) For records at the WNRC, if authorized, provide the requested
information in an electronic format. Review will occur only in the
presence of an OSD Records Administrator staff member.
(B) Ensure that all staples are carefully removed and that the
documents are re-stapled before the documents are replaced in the
folder.
(C) Submit all classified and unclassified notes made from the
records to the custodian of the files at the end of each day of
research. The custodian will transmit the notes to the OSD Records
Administrator for an official review and release to the researcher at
the completion of researcher's project.
(D) Submit the final manuscript to the OSD Records Administrator for
forwarding to the Chief, Security Review Division, Office of Security
Review, for a security review and public release clearance in accordance
with DoD Directive 5230.09 and DoD 5220.22-M, ``National Industrial
Security Program Operating Manual (NISPOM)'' (available at http://
www.dtic.mil/whs/directives/corres/pdf/522022m.pdf) prior to
publication, presentation, or any other public use.
(d) Procedures for document review for the FRUS series. (1) When
documents are being reviewed, a WHS/RDD staff member must be present at
all times.
(2) The records maybe reviewed at a Presidential Library Archives
II, College Park Maryland, WNRC, Suitland, Maryland, or an appropriate
military facility. All requested information will remain under the
control of the WHS/RDD staff until a public release review is completed,
and then provided in electronic formats.
(3) If the requested records have been reviewed in accordance with
the automatic declassification provisions of Executive Order 13526, any
tabs removed during the research and copying must be replaced in
accordance with DoD Manual 5200.01 volume 2.
(4) The number of boxes to be reviewed will determine which of the
following procedures will apply. The WHS/RDD staff member will make that
determination at the time the request is processed. When the historian
completes the review of the boxes, he or she must contact the WHS/RDD to
establish a final schedule for scanning the documents. To avoid a
possible delay, a tentative schedule will be established at the time
that the review schedule is set.
(i) For 24 boxes or fewer, review and scanning will take place
simultaneously. Estimated time to complete scanning is 7 work days.
(ii) For 25 boxes or more, the historian will review the boxes and
mark the documents that are to be scanned using WHS/RDD authorized
reproduction tabs.
(iii) If the review occurs at facilities that OSD does not control
ownership of the document, the documents must be given to the WHS/RDD
staff member for transmittal for processing.
(5) WHS/RDD will notify the historian when the documents are ready
to be picked up. All administrative procedures for classified material
transfers will be followed in accordance with DoD Manual 5200.01 volume
1 and DoD 5220.22-M and appropriate receipt for unclassified information
will be used.
(e) Procedures for copying documents. (1) The records will be
reviewed and copied at a Presidential Library, Archives II, College Park
Maryland, WNRC, Suitland, Maryland, or an appropriate U.S. military
facility.
(2) If the requested records have been reviewed in accordance with
the automatic declassification provisions of Executive Order 13526 any
tabs removed during the research and copying must be replaced in
accordance with DoD Manual 5200.01 volume 2.
(3) The researcher will mark the documents that he or she wants to
copy
[[Page 64]]
using WHS/RDD authorized reproduction tabs.
(4) Any notes taken during the review process must be given to the
WHS/RDD staff member present for transmittal to the WHS/RDD.
(5) All reproduction charges are to the responsibility of the
researcher.
(6) All documents requested will be copied to an approved electronic
format by WHS/RDD staff after official review.
(i) The researcher will need to bring paper, staples, staple
remover, and stapler.
(ii) When the researcher completes the review of the boxes, he or
she must contact the WHS/RDD to establish a final schedule for scanning
the requested documents.
(iii) When the documents are scanned, the WHS/RDD will notify the
researcher.
(iv) All questions pertaining to the review, copying, or transmittal
of OSD documents must be addressed to the WHS/RDD staff member.
(f) General guidelines for researching DoD records. DoD records and
information are unique and often cannot be replaced should they be lost
or damaged. In order to protect its collections and archives, the OSD
Records Administrator has set rules that researchers must follow.
(1) Researchers will work in room assigned. Researchers are not
allowed in restricted areas.
(2) Special care must be taken in handling all records. Records may
not be leaned on, written on, folded, traced from, or handled in any way
likely to damage them.
(3) Records should be kept in the same order in which they are
presented.
(4) Items that may not be brought into these research areas include,
but are not limited to:
(i) Briefcases.
(ii) Cases for equipment (laptop computers).
(iii) Computers. This includes laptops, tablet computers, personal
digital assistants, smart phones, and other similar devices.
(iv) Cellular phones.
(v) Computer peripherals including handheld document scanners and
digital or analog cameras.
(vi) Containers larger than 9.5 x 6.25 (e.g.,
paper bags, boxes, backpacks, shopping bags, and sleeping bags).
(vii) Food, drinks (includes bottled water) and cigarettes, cigars,
or pipes.
(viii) Handbags or purses larger than 9.5 x
6.25.
(ix) Luggage.
(x) Musical instruments and their cases.
(xi) Newspapers.
(xii) Outerwear (e.g., raincoats and overcoats).
(xiii) Pets (exception for service animals, i.e., any guide dog or
signal dog that is trained to provide a service to a person with a
disability).
(xiv) Scissors or other cutting implements.
(xv) Televisions and audio or video equipment.
(xvi) Umbrellas.
(5) Eating, drinking, or smoking is prohibited.
Sec. Appendix A to Part 197--Explanation of FOIA Exemptions and
Classification Categories
(a) Explanation of FOIA Exemptions and Classification Categories--
(1) Explanation of FOIA Exemptions. Exemptions and their explanations
are provided in the Table to Appendix A. See chapter III of 32 CFR part
286 for further information.
Table to Appendix A--Explanation of FOIA Exemptions
------------------------------------------------------------------------
Exemption Explanation
------------------------------------------------------------------------
(b)(1)............................. Applies to records and information
currently and properly classified
in the interest of national
security.
(b)(2)............................. Applies to records related solely
to the internal personnel rules
and practices of an agency.
(b)(3)............................. Applies to records and information
protected by another law that
specifically exempts the
information from public release.
(b)(4)............................. Applies to records and information
on trade secrets and commercial or
financial information obtained
from a private source which would
cause substantial competitive harm
to the source if disclosed.
[[Page 65]]
(b)(5)............................. Applies to records and information
of internal records that are
deliberative in nature and are
part of the decision making
process that contain opinions and
recommendations.
(b)(6)............................. Applies to records or information
the release of which could
reasonably be expected to
constitute a clearly unwarranted
invasion of the personal privacy
of individuals.
(b)(7)............................. Applies to records or information
compiled for law enforcement
purposes that could: (a)
Reasonably be expected to
interfere with law enforcement
proceedings; (b) deprive a person
of a right to a fair trial or
impartial adjudication; (c)
reasonably be expected to
constitute an unwarranted invasion
of the personal privacy of others;
(d) disclose the identity of a
confidential source; (e) disclose
investigative techniques and
procedures; or (f) reasonably be
expected to endanger the life or
physical safety of any individual.
(b)(8)............................. Applies to records and information
for the use of any agency
responsible for the regulation or
supervision of financial
institutions.
(b)(9)............................. Applies to records and information
containing geological and
geophysical information (including
maps) concerning wells.
------------------------------------------------------------------------
(2) Classification Categories. Information will not be considered
for classification unless its unauthorized disclosure could reasonably
be expected to cause identifiable or describable damage to the national
security in accordance with section 1.2 of Executive Order 13526, and it
pertains to one or more of the following:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including covert action),
intelligence sources or methods, or cryptology;
(iv) Foreign relations or foreign activities of the United States,
including confidential sources;
(v) Scientific, technological, or economic matters relating to the
national security;
(vi) U.S. Government programs for safeguarding nuclear materials or
facilities;
(vii) Vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the
national security; or
(viii) The development, production, or use of weapons of mass
destruction.
(b) [Reserved]
PART 199_CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED
SERVICES (CHAMPUS)--Table of Contents
Sec.
199.1 General provisions.
199.2 Definitions.
199.3 Eligibility.
199.4 Basic program benefits.
199.5 TRICARE Extended Care Health Option (ECHO).
199.6 TRICARE--authorized providers.
199.7 Claims submission, review, and payment.
199.8 Double coverage.
199.9 Administrative remedies for fraud, abuse, and conflict of
interest.
199.10 Appeal and hearing procedures.
199.11 Overpayments recovery.
199.12 Third party recoveries.
199.13 TRICARE Dental Program.
199.14 Provider reimbursement methods.
199.15 Quality and utilization review peer review organization program.
199.16 Supplemental Health Care Program for active duty members.
199.17 TRICARE program.
199.18 [Reserved]
199.20 Continued Health Care Benefit Program (CHCBP).
199.21 TRICARE Pharmacy Benefits Program.
199.22 TRICARE Retiree Dental Program (TRDP).
199.23 Special Supplemental Food Program.
199.24 TRICARE Reserve Select.
199.25 TRICARE Retired Reserve.
199.26 TRICARE Young Adult.
Appendix A to Part 199--Acronyms
Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55.
Source: 51 FR 24008, July 1, 1986, unless otherwise noted.
Sec. 199.1 General provisions.
(a) Purpose. This part prescribes guidelines and policies for the
administration of the Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS) for the Army, the Navy, the Air Force, the
Marine Corps, the Coast Guard, the Commissioned Corps of the U.S. Public
Health Service (USPHS) and the Commissioned Corps of the National
Oceanic and Atmospheric Administration (NOAA).
(b) Applicability--(1) Geographic. This part is applicable
geographically within the 50 States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, and the United States
possessions and territories, and
[[Page 66]]
in all foreign countries, unless specific exemptions are granted in
writing by the Director, OCHAMPUS, or a designee.
(2) Agency. The provisions of this part apply throughout the
Department of Defense (DoD), the Coast Guard, the Commissioned Corps of
the USPHS, and the Commissioned Corps of the NOAA.
(c) Authority and responsibility--(1) Legislative authority--(i)
Joint regulations. 10 U.S.C. chapter 55 authorizes the Secretary of
Defense, the Secretary of Health and Human Services, and the Secretary
of Transportation jointly to prescribe regulations for the
administration of CHAMPUS.
(ii) Administration. 10 U.S.C. chapter 55 also authorizes the
Secretary of Defense to administer CHAMPUS for the Army, Navy, Air
Force, and Marine Corps under DoD jurisdiction, the Secretary of
Transportation to administer CHAMPUS for the Coast Guard, when the Coast
Guard is not operating as a service in the Navy, and the Secretary of
Health and Human Services to administer CHAMPUS for the Commissioned
Corps of the NOAA and the USPHS.
(2) Organizational delegations and assignments--(i) Assistant
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to
provide policy guidance, management control and coordination as required
for CHAMPUS, and to develop, issue, and maintain regulations with the
coordination of the Military Departments and consistent with DoD 5025.1-
M. \1\ Additional implementing authority is contained in DoD Directive
5105.46. \2\
---------------------------------------------------------------------------
\1\ Copies may be obtained, if needed, from the National Technical
Information Service (NTIS), U.S. Department of Commerce, 5285 Port Royal
Road, Springfield, VA 22161.
\2\ Copies may be obtained; if needed from the Naval Publications
and Forms Center, 5801 Tabor Avenue, Code 301, Philadelphia, PA 19120.
---------------------------------------------------------------------------
(ii) Department of Health and Human Services. The Secretary of
Health and Human Services has delegated authority to the Assistant
Secretary for Health, DHHS, to consult with the Secretary of Defense or
a designee and to approve and issue joint regulations implementing 10
U.S.C. chapter 55. This delegation was effective April 19, 1976 (41 FR
18698, May 6, 1976).
(iii) Department of Transportation. The Secretary of Transportation
has delegated authority to the Commandant, United States Coast Guard, to
consult with the Secretary of Defense or a designee and to approve an
issue joint regulations implementing 10 U.S.C., chapter 55.
(iv) Office of CHAMPUS (OCHAMPUS). By DoD Directive 5105.46,
OCHAMPUS was established as an OSD field activity under the policy
guidance and direction of the ASD(HA). The Director, OCHAMPUS, is
directed to execute the following responsibilities and functions:
(A) Supervise and administer the programs and missions to:
(1) Provide technical direction and guidance on organizational,
administrative, and operational matters.
(2) Conduct studies and research activities in the health care area
to assist in formulating policy required to guide OCHAMPUS in carrying
out its programs.
(3) Enter into agreements through the Department of Defense with
respect to the Military Departments or other U.S. Government entities,
as required, for the effective performance of CHAMPUS.
(4) Supervise and administer OCHAMPUS financial management
activities to include:
(i) Formulating budget estimates and justifications to be submitted
to the Deputy Assistant Secretary of Defense (Administration) (DASD(A))
for inclusion in the overall budget for the Office of the Secretary of
Defense.
(ii) Ensuring the establishment and maintenance of necessary
accounting records and submission of required financial reports to the
DASD(A).
(iii) Ensuring the effective execution of approved budgets.
(5) Contract for claims processing services, studies and research,
supplies, equipment, an other services necessary to carry out the
CHAMPUS programs.
(6) Monitor claims adjudication and processing contracts to ensure
that CHAMPUS fiscal intermediaries are fulfilling their obligations.
[[Page 67]]
(7) Convey appropriate CHAMPUS information to providers of care,
practitioners, professional societies, health industry organizations,
fiscal agents, hospital contractors, and others who have need of such
information.
(8) Collect, maintain, and analyze program cost and utilization data
appropriate for preparation of budgets, fiscal planning, and as
otherwise needed to carry out CHAMPUS programs and missions.
(9) Arrange for the facilities logistical and administrative support
to be provided by the Military Departments.
(10) Execute such other functions as appropriate to administer the
programs and missions assigned.
(B) Direct and control of the office, activities, and functions of
OCHAMPUS Europe (OCHAMPUSEUR).
Note: The Director, OCHAMPUS, may also establish similar offices for
OCHAMPUS Southern Hemisphere (OCHAMPUSSO) and OCHAMPUS Pacific
(OCHAMPUSPAC).
(C) Develop for issuance, subject to approval by the ASD(HA), such
policies or regulations as required to administer and manage CHAMPUS
effectively.
(v) Evidence of eligibility. The Department of Defense, through the
Defense Enrollment Eligibility Reporting System (DEERS), is responsible
for establishing and maintaining a listing of persons eligible to
receive benefits under CHAMPUS. Identification cards or devices bearing
information necessary for preliminary evidence of eligibility, subject
to verification through the DEERS, shall be issued to eligible persons
by the appropriate Uniformed Services (DoD 1341.1-M, ``Defense
Enrollment Eligibility Reporting System (DEERS) Program Manual'').
(d) Medical benefits program. The CHAMPUS is a program of medical
benefits provided by the U.S. Government under public law to specified
categories of individuals who are qualified for these benefits by virtue
of their relationship to one of the seven Uniformed Services. Although
similar in structure in many of its aspects, CHAMPUS is not an insurance
program in that it does not involve a contract guaranteeing the
indemnification of an insured party against a specified loss in return
for a premium paid. Further, CHAMPUS is not subject to those state
regulatory bodies or agencies that control the insurance business
generally.
(e) Program funds. The funds used by CHAMPUS are appropriated funds
furnished by the Congress through the annual appropriation acts for the
Department of Defense and the DHHS. These funds are further disbursed by
agents of the government under contracts negotiated by the Director,
OCHAMPUS, or a designee, under the provisions of the Federal Acquisition
Regulation (FAR). These agents (referred to in this part as CHAMPUS
fiscal intermediaries) receive claims against CHAMPUS and adjudicate the
claims under this part and in accordance with administrative procedures
and instructions prescribed in their contracts. The funds expended for
CHAMPUS benefits are federal funds provided CHAMPUS fiscal
intermediaries solely to pay CHAMPUS claims, and are not a part of or
obtained from the CHAMPUS fiscal intermediary's funds related to other
programs or insurance coverage. CHAMPUS fiscal intermediaries are
reimbursed for the adjudication and payment of CHAMPUS claims at a rate
(generally fixed-price) prescribed in their contracts.
(f) Claims adjudication and processing. The Director, OCHAMPUS, is
responsible for making such arrangements as are necessary to adjudicate
and process CHAMPUS claims worldwide.
(1) The United States--(i) Contracting out. The primary method of
processing CHAMPUS claims in the United States is through competitively
procured, fixed-price contracts. The Director, OCHAMPUS, or a designee,
is responsible for negotiating, under the provisions of the FAR,
contracts for the purpose of adjudicating and processing CHAMPUS claims
(and related supporting activities).
(ii) In-house. The Director, OCHAMPUS, or a designee, is authorized
to adjudicate and process certain CHAMPUS claims in-house at OCHAMPUS,
when it is determined to be in the best interests of CHAMPUS subject to
applicable considerations set forth in OMB Circular A-76. Such in-house
claims processing may involve
[[Page 68]]
special or unique claims, or all claims for a specific geographic area.
(2) Outside the United States--(i) Special subsidiary office or
contracting out. For adjudicating and processing CHAMPUS claims for
services or supplies provided outside the United States, the Director,
OCHAMPUS, or a designee, has the option of either setting up a special
subsidiary claims paying operation (such as OCHAMPUSEUR) or contracting
out as described in paragraph (f)(1)(i) of this section. Such claims
paying operations are reviewed periodically to determine whether current
arrangements continue to be appropriate and the most effective.
(ii) Support agreements. In those situations outside the United
States that demand special arrangements, the Director, OCHAMPUS, may
enter into support agreements through the Department of Defense with any
of the Military Departments or other government agency to process
CHAMPUS claims in specific geographic locations. Such agreements may be
negotiated for such period of time as the Director, OCHAMPUS, or
designee, may determine to be necessary to meet identified special
demands.
(g) Recommendations for change to part. The Director, OCHAMPUS, or a
designee, shall establish procedures for receiving and processing
recommendations for changes to this part from interested parties.
(h) CHAMPUS, claims forms. The Director, OCHAMPUS, or a designee, is
responsible for the development and updating of all CHAMPUS claim forms
and any other forms necessary in the administration of CHAMPUS.
(i) The CHAMPUS handbook. The Director, OCHAMPUS, or a designee,
shall develop the CHAMPUS, Handbook. The CHAMPUS Handbook is a general
program guide for the use of CHAMPUS beneficiaries and providers and
shall be updated, as required.
(j) Program integrity. The Director, OCHAMPUS, or a designee, shall
oversee all CHAMPUS personnel, fiscal intermediaries, providers, and
beneficiaries to ensure compliance with this part. The Director,
OCHAMPUS, or a designee, shall accomplish this by means of proper
delegation of authority, separation of responsibilities, establishment
of reports, performance evaluations, internal and external management
and fiscal audits, personal or delegated reviews of CHAMPUS
responsibilities, taking affidavits, exchange of information among state
and Federal governmental agencies, insurers, providers and associations
of providers, and such other means as may be appropriate. Compliance
with law and this part shall include compliance with specific contracts
and agreements, regardless of form, and general instructions, such as
CHAMPUS policies, instructions, procedures, and criteria relating to
CHAMPUS operation.
(k) Role of CHAMPUS Health Benefits Advisor (HBA). The CHAMPUS HBA
is appointed (generally by the commander of a Uniformed Services medical
treatment facility) to serve as an advisor to patients and staff in
matters involving CHAMPUS. The CHAMPUS HBA may assist beneficiaries or
sponsors in applying for CHAMPUS benefits, in the preparation of claims,
and in their relations with OCHAMPUS and CHAMPUS fiscal intermediaries.
However, the CHAMPUS HBA is not responsible for CHAMPUS policies and
procedures and has no authority to make benefit determinations or
obligate Government funds. Advice given to beneficiaries as to
determination of benefits or level of payment is not binding on OCHAMPUS
or CHAMPUS fiscal intermediaries.
(l) Cooperation and exchange of information with other Federal
programs. The Director, OCHAMPUS, or a designee, shall disclose to
appropriate officers or employees of the DHHS:
(1) Investigation for fraud. The name and address of any physician
or other individual actively being investigated for possible fraud in
connection with CHAMPUS, and the nature of such suspected fraud. An
active investigation exists when there is significant evidence
supporting an initial complaint but there is need for further
investigation.
(2) Unnecessary services. The name and address of any provider of
medical services, organization, or other person found, after
consultation with an appropriate professional association or appropriate
peer review body, to have
[[Page 69]]
provided unnecessary services. Such information will be released only
for the purpose of conducting an investigation or prosecution, or for
the administration of titles XVIII and XIX of the Social Security Act,
provided that the information will be released only to the agency's
enforcement branch and that the agency will preserve the confidentiality
of the information received and will not disclose such information for
other than program purposes.
(m) Disclosure of information to the public. Records and information
acquired in the administration of CHAMPUS are records of the Department
of Defense and may be disclosed in accordance with DoD Directive 5400.7
\3\, DoD 5400.7-R \4\, and DoD 5400.11-R \5\ (codified in 32 CFR parts
286 and 286a), constituting the applicable DoD Directives and DoD
Regulations implementing the Freedom of Information and the Privacy
Acts.
---------------------------------------------------------------------------
\3\ See footnote 2 to Sec. 199.1(c)(2)(i)
\4\ See footnote 1 to Sec. 199.1(c)(2)(i)
\5\ See footnote 1 to Sec. 199.1(c)(2)(i)
---------------------------------------------------------------------------
(n) Discretionary authority. When it is determined to be in the best
interest of CHAMPUS, the Director, OCHAMPUS, or a designee, is granted
discretionary authority to waive any requirements of this part, except
that any requirement specifically set forth in 10 U.S.C. chapter 55, or
otherwise imposed by law, may not be waived. It is the intent that such
discretionary authority be used only under very unusual and limited
circumstances and not to deny any individual any right, benefit, or
privilege provided to him or her by statute or this part. Any such
exception granted by the Director, OCHAMPUS, or a designee, shall apply
only to the individual circumstance or case involved and will in no way
be construed to be precedent-setting.
(o) Demonstration projects--(1) Authority. The Director, OCHAMPUS
may waive or alter any requirements of this regulation in connection
with the conduct of a demonstration project required or authorized by
law except for any requirement that may not be waived or altered
pursuant to 10 U.S.C. chapter 55, or other applicable law.
(2) Procedures. At least 30 days prior to taking effect, OCHAMPUS
shall publish a notice describing the demonstration project, the
requirements of this regulation being waived or altered under paragraph
(o)(1) of this section and the duration of the waiver or alteration.
Consistent with the purpose and nature of demonstration projects, these
notices are not covered by public comment practices under DoD Directive
5400.9 (32 CFR part 296) or DoD Instruction 6010.8.
(3) Definition. For purposes of this section, a ``demonstration
project'' is a project of limited duration designed to test a different
method for the finance, delivery or administration of health care
activities for the uniformed services. Demonstration projects may be
required or authorized by 10 U.S.C. 1092, any other statutory provision
requiring or authorizing a demonstration project or any other provision
of law that authorizes the activity involved in the demonstration
project.''.
(p) Military-Civilian Health Services Partnership Program. The
Secretary of Defense, or designee, may enter into an agreement (external
or internal) providing for the sharing of resources between facilities
of the uniformed services and facilities of a civilian health care
provider or providers if the Secretary determines that such an agreement
would result in the delivery of health care in a more effective,
efficient or economical manner. This partnership allows CHAMPUS
beneficiaries to receive inpatient and outpatient services through
CHAMPUS from civilian personnel providing health care services in
military treatment facilities and from uniformed service professional
providers in civilian facilities. The policies and procedures by which
partnership agreements may be executed are set forth in Department of
Defense Instruction (DoDI) 6010.12, ``Military-Civilian Health Services
Partnership Program.'' The Director, OCHAMPUS, or a designee, shall
issue policies, instructions, procedures, guidelines, standards, or
criteria as may be necessary to provide support for implementation of
DoDI 6010.12, to promulgate and manage benefit and financial policy
issues, and to develop a program evaluation process to ensure the
Partnership Program accomplishes the purpose for which it was developed.
[[Page 70]]
(1) Partnership agreements. Military treatment facility commanders,
based upon the authority provided by their representative Surgeons
General of the military departments, are responsible for entering into
individual partnership agreements only when they have determined
specifically that use of the Partnership Program is more economical
overall to the Government than referring the need for health care
services to the civilian community under the normal operation of the
CHAMPUS Program. All such agreements are subject to the review and
approval of the Director, OCHAMPUS, or designee, and the appropriate
Surgeon General.
(i) External partnership agreements. The external partnership
agreement is an agreement between a military treatment facility
Commander and a CHAMPUS-authorized institutional provider, enabling
Uniformed Services health care personnel to provide otherwise covered
medical care to CHAMPUS beneficiaries in a civilian facility. Authorized
costs associated with the use of the facility will be financed through
CHAMPUS under normal cost-sharing and reimbursement procedures currently
applicable under the basic CHAMPUS. Savings will be realized under this
type of agreement by using available military health care personnel to
avoid the civilian professional provider charges which would otherwise
be billed to CHAMPUS.
(ii) Internal partnership agreements. The internal partnership
agreement is an agreement between a military treatment facility
commander and a CHAMPUS-authorized civilian health care provider which
enables the use of civilian health care personnel or other resources to
provide medical care to CHAMPUS beneficiaries on the premises of a
military treatment facility. These internal agreements may be
established when a military treatment facility is unable to provide
sufficient health care services for CHAMPUS beneficiaries due to
shortages of personnel and other required resources. In addition to
allowing the military treatment facility to achieve maximum use of
available facility space, the internal agreement will result in savings
to the Government by using civilian medical specialists to provide
inpatient care in Government-owned facilities, thereby avoiding the
civilian facility charges which would have otherwise been billed to
CHAMPUS.
(2) Beneficiary cost-sharing. Beneficiary cost-sharing under the
Partnership Program is outlined in Sec. 199.4(f)(5) of this part.
(3) Reimbursement. Reimbursement under the Partnership Program is
outlined in Sec. 199.14(f) of this part.
(4) Beneficiary eligibility and authorized providers. Existing
requirements of this Regulation remain in effect as concerns beneficiary
eligibility and authorized providers.
(5) Range of benefits. Health care services provided CHAMPUS
beneficiaries under the terms of the Partnership Program must be
consistent with the CHAMPUS range of benefits outlined in this
Regulation. The services rendered must be otherwise covered. Charges
allowed for professional services provided under the Partnership Program
may include costs of support personnel, equipment, and supplies when
specifically outlined in the partnership agreement, However, all CHAMPUS
coverage and provider requirements must be met.
(q) Equality of benefits. All claims submitted for benefits under
CHAMPUS shall be adjudicated in a consistent, fair, and equitable
manner, without regard to the rank of the sponsor.
(r) TRICARE program. Many rules and procedures established in
sections of this part are subject to revision in areas where the TRICARE
program is implemented. The TRICARE program is the means by which
managed care activities designed to improve the delivery and financing
of health care services in the Military Health Services System(MHSS) are
carried out. Rules and procedures for the TRICARE program are set forth
in Sec. 199.17.
[51 FR 24008, July 1, 1986, as amended at 52 FR 38754, Oct. 19, 1987; 53
FR 27961, July 26, 1988; 55 FR 43338, Oct. 29, 1990; 60 FR 52094, Oct.
5, 1995]
Sec. 199.2 Definitions.
(a) General. In an effort to be as specific as possible as to the
word and intent of CHAMPUS, the following definitions have been
developed. While
[[Page 71]]
many of the definitions are general and some assign meaning to
relatively common terms within the health insurance environment, others
are applicable only to CHAMPUS; however, they all appear in this part
solely for the purpose of the Program. Except when otherwise specified,
the definitions in this section apply generally throughout this part.
(b) Specific definitions. Abortion. Abortion means the intentional
termination of a pregnancy by artificial means done for a purpose other
than that of producing a live birth. A spontaneous, missed or threatened
abortion or termination of an ectopic (tubal) pregnancy are not included
within the term ``abortion'' as used herein.
Absent treatment. Services performed by Christian Science
practitioners for a person when the person is physically present.
Note: Technically, ``Absent Treatment'' is an obsolete term. The
current Christian Science terminology is ``treatment through prayer and
spiritual means,'' which is employed by an authorized Christian Science
practitioner either with the beneficiary being present or absent.
However, to be considered for coverage under CHAMPUS, the beneficiary
must be present physically when a Christian Science service is rendered,
regardless of the terminology used.
Abuse. For the purposes of this part, abuse is defined as any
practice that is inconsistent with accepted sound fiscal, business, or
professional practice which results in a CHAMPUS claim, unnecessary
cost, or CHAMPUS payment for services or supplies that are: (1) Not
within the concepts of medically necessary and appropriate care, as
defined in this part, or (2) that fail to meet professionally recognized
standards for health care providers. The term ``abuse'' includes
deception or misrepresentation by a provider, or any person or entity
acting on behalf of a provider in relation to a CHAMPUS claim.
Note: Unless a specific action is deemed gross and flagrant, a
pattern of inappropriate practice will normally be required to find that
abuse has occurred. Also, any practice or action that constitutes fraud,
as defined by this part, would also be abuse.
Abused dependent. An eligible spouse or child, who meets the
criteria in Sec. 199.3 of this part, of a former member who received a
dishonorable or bad-conduct discharge or was dismissed from a Uniformed
Service as a result of a court-martial conviction for an offense
involving physical or emotional abuse or was administratively discharged
as a result of such an offense, or of a member or former member who has
had their entitlement to receive retired pay terminated because of
misconduct involving physical or emotional abuse.
Accidental injury. Physical bodily injury resulting from an external
force, blow or fall, or the ingestion of a foreign body or harmful
substance, requiring immediate medical treatment. Accidental injury also
includes animal and insect bites and sunstrokes. For the purpose of
CHAMPUS, the breaking of a tooth or teeth does not constitute a physical
bodily injury.
Active duty. Full-time duty in the Uniformed Services of the United
States. It includes duty on the active list, full-time training duty,
annual training duty, and attendance while in the active Military
Service, at a school designated as a Service school by law or by the
Secretary of the Military Department concerned.
Active duty member. A person on active duty in a Uniformed Service
under a call or order that does not specify a period of 30 days or less.
Activities of daily living. Care that consists of providing food
(including special diets), clothing, and shelter; personal hygiene
services; observation and general monitoring; bowel training or
management (unless abnormalities in bowel function are of a severity to
result in a need for medical or surgical intervention in the absence of
skilled services); safety precautions; general preventive procedures
(such as turning to prevent bedsores); passive exercise; companionship;
recreation; transportation; and such other elements of personal care
that reasonably can be performed by an untrained adult with minimal
instruction or supervision. Activities of daily living may also be
referred to as ``essentials of daily living''.
Acupuncture. The practice of inserting needles into various body
parts to pierce specific peripheral nerves for the
[[Page 72]]
production of counter-irritation to relieve the discomfort of pain,
induce surgical anesthesia, or for other treatment purposes.
Note: Acupuncture is not covered by CHAMPUS.
Adequate Medical Documentation, Medical Treatment Records. Adequate
medical documentation contains sufficient information to justify the
diagnosis, the treatment plan, and the services and supplies furnished.
Under CHAMPUS, it is required that adequate and sufficient clinical
records be kept by the health care provider(s) to substantiate that
specific care was actually and appropriately furnished, was medically
necessary and appropriate (as defined by this part), and to identify the
individual(s) who provided the care. All procedures billed must be
documented in the records. In determining whether medical records are
adequate, the records will be reviewed under the generally acceptable
standards such as the applicable Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) standards, the Peer Review Organization
(PRO) standards (and the provider's state or local licensing
requirements) and other requirements specified by this part. In general,
the documentation requirements for a professional provider are not less
in the outpatient setting than the inpatient setting.
Adequate medical documentation, mental health records. Adequate
medical documentation provides the means for measuring the type,
frequency, and duration of active treatment mechanisms employed and
progress under the treatment plan. Under CHAMPUS, it is required that
adequate and sufficient clinical records be kept by the provider to
substantiate that specific care was actually and appropriately
furnished, was medically or psychologically necessary (as defined by
this part), and to identify the individual(s) who provided the care.
Each service provided or billed must be documented in the records. In
determining whether medical records are adequate, the records will be
reviewed under the generally acceptable standards (e.g., the standards
of an accrediting organization approved by the Director, and the
provider's state or local licensing requirements) and other requirements
specified by this part. The psychiatric and psychological evaluations,
physician orders, the treatment plan, integrated progress notes (and
physician progress notes if separate from the integrated progress
notes), and the discharge summary are the more critical elements of the
mental health record. However, nursing and staff notes, no matter how
complete, are not a substitute for the documentation of services by the
individual professional provider who furnished treatment to the
beneficiary. In general, the documentation requirements of a
professional provider are not less in the outpatient setting than the
inpatient setting. Furthermore, even though a hospital that provides
psychiatric care may be accredited under The Joint Commission (TJC)
manual for hospitals rather than the behavioral health standards manual,
the critical elements of the mental health record listed above are
required for CHAMPUS claims.
Adjunctive dental care. Dental care which is medically necessary in
the treatment of an otherwise covered medical (not dental) condition, is
an integral part of the treatment of such medical condition and is
essential to the control of the primary medical condition; or, is
required in preparation for or as the result of dental trauma which may
be or is caused by medically necessary treatment of an injury or disease
(iatrogenic).
Admission. The formal acceptance by a CHAMPUS authorized
institutional provider of a CHAMPUS beneficiary for the purpose of
diagnosis and treatment of illness, injury, pregnancy, or mental
disorder.
Adopted child. A child taken into one's own family by legal process
and treated as one's own child. In case of adoption, CHAMPUS eligibility
begins as of 12:01 a.m. of the day of the final adoption decree.
Note: There is no CHAMPUS benefit entitlement during any interim
waiting period.
All-inclusive per diem rate. The OCHAMPUS determined rate that
encompasses the daily charge for inpatient care and, unless specifically
excepted, all other treatment determined
[[Page 73]]
necessary and rendered as part of the treatment plan established for a
patient, and accepted by OCHAMPUS.
Allowable charge. The CHAMPUS-determined level of payment to
physicians, other individual professional providers and other providers,
based on one of the approved reimbursement methods set forth in Sec.
199.14 of this part. Allowable charge also may be referred to as the
CHAMPUS-determined reasonable charge.
Allowable cost. The CHAMPUS-determined level of payment to hospitals
or other institutions, based on one of the approved reimbursement
methods set fourth in Sec. 199.14 of this part. Allowable cost may also
be referred to as the CHAMPUS-determined reasonable cost.
Ambulance. A specially designed vehicle for transporting the sick or
injured that contains a stretcher, linens, first aid supplies, oxygen
equipment, and such lifesaving equipment required by state and local
law, and that is staffed by personnel trained to provide first aid
treatment.
Ambulatory Payment Classifications (APCs). Payment of services under
the TRICARE OPPS is based on grouping outpatient procedures and services
into ambulatory payment classification groups based on clinical and
resource homogeneity, provider concentration, frequency of service and
minimal opportunities for upcoding and code fragmentation. Nationally
established rates for each APC are calculated by multiplying the APC's
relative weight derived from median costs for procedures assigned to the
APC group, scaled to the median cost of the APC group representing the
most frequently provided services, by the conversion factor.
Amount in dispute. The amount of money, determined under this part,
that CHAMPUS would pay for medical services and supplies involved in an
adverse determination being appealed if the appeal were resolved in
favor of the appealing party. See Sec. 199.10 for additional
information concerning the determination of ``amount in dispute'' under
this part.
Anesthesia services. The administration of an anesthetic agent by
injection or inhalation, the purpose and effect of which is to produce
surgical anesthesia characterized by muscular relaxation, loss of
sensation, or loss of consciousness when administered by or under the
direction of a physician or dentist in connection with otherwise covered
surgery or obstetrical care, or shock therapy. Anesthesia services do
not include hypnosis or acupuncture.
Appealable issue. Disputed questions of fact which, if resolved in
favor of the appealing party, would result in the authorization of
CHAMPUS benefits, or approval as an authorized provider in accordance
with this part. An appealable issue does not exist if no facts are in
dispute, if no CHAMPUS benefits would be payable, or if there is no
authorized provider, regardless of the resolution of any disputed facts.
See Sec. 199.10 for additional information concerning the determination
of ``appealable issue'' under this part.
Appealing party. Any party to the initial determination who files an
appeal of an adverse determination or requests a hearing under the
provisions of this part.
Appropriate medical care. (i) Services performed in connection with
the diagnosis or treatment of disease or injury, pregnancy, mental
disorder, or well-baby care which are in keeping with the generally
accepted norms for medical practice in the United States;
(ii) The authorized individual professional provider rendering the
medical care is qualified to perform such medical services by reason of
his or her training and education and is licensed or certified by the
state where the service is rendered or appropriate national organization
or otherwise meets CHAMPUS standards; and
(iii) The services are furnished economically. For purposes of this
part, ``economically'' means that the services are furnished in the
least expensive level of care or medical environment adequate to provide
the required medical care regardless of whether or not that level of
care is covered by CHAMPUS.
Approved teaching programs. For purposes of CHAMPUS, an approved
teaching program is a program of graduate medical education which has
been duly approved in its respective specialty or subspecialty by the
Accreditation
[[Page 74]]
Council for Graduate Medical Education of the American Medical
Association, by the Committee on Hospitals of the Bureau of Professional
Education of the American Osteopathic Association, by the Council on
Dental Education of the American Dental Association, or by the Council
on Podiatry Education of the American Podiatry Association.
Assistant Secretary of Defense (Health Affairs). An authority of the
Assistant Secretary of Defense (Health Affairs) includes any person
designated by the Assistant Secretary to exercise the authority
involved.
Assistive technology devices. Equipment that generally does not
treat an underlying injury, illness, disease or their symptoms.
Assistive technology devices are authorized only under the Extended Care
Health Option (ECHO). Assistive technology devices help an ECHO
beneficiary overcome or remove a disability and are used to increase,
maintain, or improve the functional capabilities of an individual.
Assistive technology devices may include non-medical devices but do not
include any structural alterations (e.g., permanent structure of
wheelchair ramps or alterations to street curbs) service animals (e.g.,
Seeing Eye dogs, hearing/handicapped assistance animals, etc.) or
specialized equipment and devices whose primary purpose is to enable the
individual to engage in sports or recreational events. Assistive
technology devices are authorized only under coverage criteria
determined by the Director, TRICARE Management Activity to assist in the
reduction of the disabling effects of a qualifying condition for
individuals eligible to receive benefits under the ECHO program, as
provided in Sec. 199.5.
Attending physician. The physician who has the primary
responsibility for the medical diagnosis and treatment of the patient. A
consultant or an assistant surgeon, for example, would not be an
attending physician. Under very extraordinary circumstances, because of
the presence of complex, serious, and multiple, but unrelated, medical
conditions, a patient may have more than one attending physician
concurrently rendering medical treatment during a single period of time.
An attending physician also may be a teaching physician.
Augmentative communication device (ACD). A voice prosthesis as
determined by the Secretary of Defense to be necessary because of
significant conditions resulting from trauma, congenital anomalies, or
disease. Also referred to as Speech Generating Device.
Authorized provider. A hospital or institutional provider,
physician, or other individual professional provider, or other provider
of services or supplies specifically authorized to provide benefits
under CHAMPUS in Sec. 199.6 of this part.
Automobile liability insurance. Automobile liability insurance means
insurance against legal liability for health and medical expenses
resulting from personal injuries arising from operation of a motor
vehicle. Automobile liability insurance includes:
(1) Circumstances in which liability benefits are paid to an injured
party only when the insured party's tortious acts are the cause of the
injuries; and
(2) Uninsured and underinsured coverage, in which there is a third-
party tortfeasor who caused the injuries (i.e., benefits are not paid on
a no-fault basis), but the insured party is not the tortfeasor.
Backup hospital. A hospital which is otherwise eligible as a CHAMPUS
institutional provider and which is fully capable of providing emergency
care to a patient who develops complications beyond the scope of
services of a given category of CHAMPUS-authorized freestanding
institutional provider and which is accessible from the site of the
CHAMPUS-authorized freestanding institutional provider within an average
transport time acceptable for the types of medical emergencies usually
associated with the type of care provided by the freestanding facility.
Balance billing. A provider seeking any payment, other than any
payment relating to applicable deductible and cost sharing amounts, from
a beneficiary for CHAMPUS covered services for any amount in excess of
the applicable CHAMPUS allowable cost or charge.
Bariatric Surgery. Surgical procedures performed to treat co-morbid
conditions associated with morbid obesity.
[[Page 75]]
Bariatric surgery is based on two principles: (1) Divert food from the
stomach to a lower part of the digestive tract where the normal mixing
of digestive fluids and absorption of nutrients cannot occur (i.e.,
Malabsorptive surgical procedures); or (2) Restrict the size of the
stomach and decrease intake (i.e., Restrictive surgical procedures).
Basic program. The primary medical benefits set forth in Sec.
199.4, generally referred to as the Civilian Health and Medical Program
of the Uniformed Services (CHAMPUS) as authorized under chapter 55 of
title 10 United States Code, were made available to eligible
beneficiaries under this part.
Beneficiary. An individual who has been determined to be eligible
for CHAMPUS benefits, as set forth in Sec. 199.3 of this part.
Beneficiary liability. The legal obligation of a beneficiary, his or
her estate, or responsible family member to pay for the costs of medical
care or treatment received. Specifically, for the purposes of services
and supplies covered by CHAMPUS, beneficiary liability includes any
annual deductible amount, cost-sharing amounts, or, when a provider does
not submit a claim on a participating basis on behalf of the
beneficiary, amounts above the CHAMPUS-determined allowable cost or
charge. Beneficiary liability also includes any expenses for medical or
related services and supplies not covered by CHAMPUS.
Birthing center. A health care provider which meets the applicable
requirements established by Sec. 199.6(b) of this part.
Birthing room. A room and environment designed and equipped to
provide care, to accommodate support persons, and within which a woman
with a low-risk, normal, full-term pregnancy can labor, deliver and
recover with her infant.
Brace. An orthopedic appliance or apparatus (an orthosis) used to
support, align, or hold parts of the body in correct position. For the
purposes of CHAMPUS, it does not include orthodontic or other dental
appliances.
CAHs. A small facility that provides limited inpatient and
outpatient hospital services primarily in rural areas and meets the
applicable requirements established by Sec. 199.6(b)(4)(xvi).
Capped rate. The maximum per diem or all-inclusive rate that CHAMPUS
will allow for care.
Case management. Case management is a collaborative process which
assesses, plans, implements, coordinates, monitors, and evaluates the
options and services required to meet an individual's health needs,
including mental health and substance use disorder needs, using
communication and available resources to promote quality, cost effective
outcomes.
Case-mix index. Case-mix index is a scale that measures the relative
difference in resources intensity among different groups receiving home
health services.
Certified nurse-midwife. An individual who meets the applicable
requirements established by Sec. 199.6(c) of this part.
Certified psychiatric nurse specialist. A licensed, registered nurse
who meets the criteria in Sec. 199.6(c)(3)(iii)(G).
CHAMPUS DRG-Based Payment System. A reimbursement system for
hospitals which assigns prospectively-determined payment levels to each
DRG based on the average cost of treating all CHAMPUS patients in a
given DRG.
CHAMPUS fiscal intermediary. An organization with which the
Director, OCHAMPUS, has entered into a contract for the adjudication and
processing of CHAMPUS claims and the performance of related support
activities.
CHAMPUS Health Benefits Advisors (HBAs). Those individuals located
at Uniformed Services medical facilities (on occasion at other
locations) and assigned the responsibility for providing CHAMPUS
information, information concerning availability of care from the
Uniformed Services direct medical care system, and generally assisting
beneficiaries (or sponsors). The term also includes ``Health Benefits
Counselor'' and ``CHAMPUS Advisor.''
Chemotherapy. The administration of approved antineoplastic drugs
for the treatment of malignancies (cancer) via perfusion, infusion, or
parenteral methods of administration.
Child. An unmarried child of a member or former member, who meets
the
[[Page 76]]
criteria (including age requirements) in Sec. 199.3 of this part.
Chiropractor. A practitioner of chiropractic (also called
chiropraxis); essentially a system of therapeutics based upon the claim
that disease is caused by abnormal function of the nerve system. It
attempts to restore normal function of the nerve system by manipulation
and treatment of the structures of the human body, especially those of
the spinal column.
Note: Services of chiropractors are not covered by CHAMPUS.
Christian science nurse. An individual who has been accredited as a
Christian Science Nurse by the Department of Care of the First Church of
Christ, Scientist, Boston, Massachusetts, and listed (or eligible to be
listed) in the Christian Science Journal at the time the service is
provided. The duties of Christian Science nurses are spiritual and are
nonmedical and nontechnical nursing care performed under the direction
of an accredited Christian Science practitioner. There exist two levels
of Christian Science nurse accreditation:
(i) Graduate Christian Science nurse. This accreditation is granted
by the Department of Care of the First Church of Christ, Scientist,
Boston, Massachusetts, after completion of a 3-year course of
instruction and study.
(ii) Practical Christian Science nurse. This accreditation is
granted by the Department of Care of the First Church of Christ,
Scientist, Boston, Massachusetts, after completion of a 1-year course of
instruction and study.
Christian Science practitioner. An individual who has been
accredited as a Christian Science Practitioner for the First Church,
Scientist, Boston, Massachusetts, and listed (or eligible to be listed)
in the Christian Science Journal at the time the service is provided. An
individual who attains this accreditation has demonstrated results of
his or her healing through faith and prayer rather than by medical
treatment. Instruction is executed by an accredited Christian Science
teacher and is continuous.
Christian Science sanatorium. A sanatorium either operated by the
First Church of Christ, Scientist, or listed and certified by the First
Church of Christ, Scientist, Boston, Massachusetts.
Chronic medical condition. A medical condition that is not curable,
but which is under control through active medical treatment. Such
chronic conditions may have periodic acute episodes and may require
intermittent inpatient hospital care. However, a chronic medical
condition can be controlled sufficiently to permit generally
continuation of some activities of persons who are not ill (such as work
and school).
Chronic renal disease (CRD). The end stage of renal disease which
requires a continuing course of dialysis or a kidney transplantation to
ameliorate uremic symptoms and maintain life.
Clinical psychologist. A psychologist, certified or licensed at the
independent practice level in his or her state, who meets the criteria
in Sec. 199.6(c)(3)(iii)(A).
Clinical social worker. An individual who is licensed or certified
as a clinical social worker and meets the criteria listed in Sec.
199.6.
Clinically meaningful endpoints. As used the definition of reliable
evidence in this paragraph (b) and Sec. 199.4(g)(15), the term
clinically meaningful endpoints means objectively measurable outcomes of
clinical interventions or other medical procedures, expressed in terms
of survival, severity of illness or condition, extent of adverse side
effects, diagnostic capability, or other effect on bodily functions
directly associated with such results.
Collateral visits. Sessions with the patient's family or significant
others for purposes of information gathering or implementing treatment
goals.
Combined daily charge. A billing procedure by an inpatient facility
that uses an inclusive flat rate covering all professional and ancillary
charges without any itemization.
Complications of pregnancy. One of the following, when commencing or
exacerbating during the term of the pregnancy:
(i) Caesarean delivery; hysterectomy.
(ii) Pregnancy terminating before expiration of 26 weeks, except a
voluntary abortion.
(iii) False labor or threatened miscarriage.
[[Page 77]]
(iv) Nephritis or pyelitis of pregnancy.
(v) Hyperemesis gravidarum.
(vi) Toxemia.
(vii) Aggravation of a heart condition or diabetes.
(viii) Premature rupture of membrane.
(ix) Ectopic pregnancy.
(x) Hemorrhage.
(xi) Other conditions as may be determined by the Director,
OCHAMPUS, or a designee.
Confinement. That period of time from the day of admission to a
hospital or other institutional provider, to the day of discharge,
transfer, or separation from the facility, or death. Successive
admissions also may qualify as one confinement provided not more than 60
days have elapsed between the successive admissions, except that
successive admissions related to a single maternity episode shall be
considered one confinement, regardless of the number of days between
admissions.
Conflict of interest. Includes any situation where an active duty
member (including a reserve member while on active duty) or civilian
employee of the United States Government, through an official federal
position, has the apparent or actual opportunity to exert, directly or
indirectly, any influence on the referral of CHAMPUS beneficiaries to
himself or herself or others with some potential for personal gain or
appearance of impropriety. For purposes of this part, individuals under
contract to a Uniformed Service may be involved in a conflict of
interest situation through the contract position.
Congenital anomaly. A condition existing at or from birth that is a
significant deviation from the common form or norm and is other than a
common racial or ethnic feature. For purposes of CHAMPUS, congenital
anomalies do not include anomalies relating to teeth (including
malocclusion or missing tooth buds) or structures supporting the teeth,
or to any form of hermaphroditism or sex gender confusion. Examples of
congenital anomalies are harelip, birthmarks, webbed fingers or toes, or
such other conditions that the Director, OCHAMPUS, or a designee, may
determine to be congenital anomalies.
Note: Also refer to Sec. 199.4(e)(7) of this part.
Consultation. A deliberation with a specialist physician, dentist,
or qualified mental health provider requested by the attending physician
primarily responsible for the medical care of the patient, with respect
to the diagnosis or treatment in any particular case. A consulting
physician or dentist or qualified mental health provider may perform a
limited examination of a given system or one requiring a complete
diagnostic history and examination. To qualify as a consultation, a
written report to the attending physician of the findings of the
consultant is required.
Note: Staff consultations required by rules and regulations of the
medical staff of a hospital or other institutional provider do not
qualify as consultation.
Consultation appointment. An appointment for evaluation of medical
symptoms resulting in a plan for management which may include elements
of further evaluation, treatment and follow-up evaluation. Such an
appointment does not include surgical intervention or other invasive
diagnostic or therapeutic procedures beyond the level of very simply
office procedures, or basic laboratory work but rather provides the
beneficiary with an authoritative opinion.
Consulting physician or dentist. A physician or dentist, other than
the attending physician, who performs a consultation.
Conviction. For purposes of this part, ``conviction'' or
``convicted'' means that (1) a judgment of conviction has been entered,
or (2) there has been a finding of guilt by the trier of fact, or (3) a
plea of guilty or a plea of nolo contendere has been accepted by a court
of competent jurisdiction, regardless of whether an appeal is pending.
Coordination of benefits. The coordination, on a primary or
secondary payer basis, of the payment of benefits between two or more
health care coverages to avoid duplication of benefit payments.
Corporate services provider. A health care provider that meets the
applicable requirements established by Sec. 199.6(f).
[[Page 78]]
Cosmetic, reconstructive, or plastic surgery. Surgery that can be
expected primarily to improve the physical appearance of a beneficiary,
or that is performed primarily for psychological purposes, or that
restores form, but does not correct or improve materially a bodily
function.
Cost-share. The amount of money for which the beneficiary (or
sponsor) is responsible in connection with otherwise covered inpatient
and outpatient services (other than the annual fiscal year deductible or
disallowed amounts) as set forth in Sec. Sec. 199.4(f) and 199.5(b) of
this part. Cost-sharing may also be referred to as ``co-payment.''
Custodial care. The term ``custodial care'' means treatment or
services, regardless of who recommends such treatment or services or
where such treatment or services are provided, that:
(1) Can be rendered safely and reasonably by a person who is not
medically skilled; or
(2) Is or are designed mainly to help the patient with the
activities of daily living.
Days. Calendar days.
Deceased member. A person who, at the time of his or her death, was
an active duty member of a Uniformed Service under a call or order that
did not specify a period of 30 days or less.
Deceased reservist. A reservist in a Uniformed Service who incurs or
aggravates an injury, illness, or disease, during, or on the way to or
from, active duty training for a period of 30 days or less or inactive
duty training and dies as a result of that specific injury, illness or
disease.
Deceased retiree. A person who, at the time of his or her death, was
entitled to retired or retainer pay or equivalent pay based on duty in a
Uniformed Service. For purposes of this part, it also includes a person
who died before attaining age 60 and at the time of his or her death
would have been eligible for retired pay as a reservist but for the fact
that he or she was not 60 years of age, and had elected to participate
in the Survivor Benefit Plan established under 10 U.S.C. chapter 73.
Deductible. Payment by an individual beneficiary or family of a
specific first dollar amount of the TRICARE allowable amount for
otherwise covered outpatient services or supplies obtained in any
program year. The dollar amount of deductible per individual or family
is calculated as specified by law.
Deductible certificate. A statement issued to the beneficiary (or
sponsor) by a TRICARE contractor certifying to deductible amounts
satisfied by a beneficiary for any applicable program year.
Defense Enrollment Eligibility Reporting System (DEERS). An
automated system maintained by the Department of Defense for the purpose
of:
(1) Enrolling members, former members and their dependents, and
(2) Verifying members', former members' and their dependents'
eligibility for health care benefits in the direct care facilities and
for CHAMPUS.
Dental care. Services relating to the teeth and their supporting
structures.
Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate
authority.
Dependent. Individuals whose relationship to the sponsor (including
NATO members who are stationed in or passing through the United States
on official business when authorized) leads to entitlement to benefits
under this part. (See Sec. 199.3 of this part for specific categories
of dependents).
Deserter or desertion status. A service member is a deserter, or in
a desertion status, when the Uniformed Service concerned has made an
administrative determination to that effect, or the member's period of
unauthorized absence has resulted in a court-martial conviction of
desertion. Administrative declarations of desertion normally are made
when a member has been an unauthorized absentee for over 30 days, but
particular circumstances may result in an earlier declaration.
Entitlement to CHAMPUS benefits ceases as of 12:01 a.m. on the day
following the day the desertion status is declared. Benefits are not to
be authorized for treatment received during a period of unauthorized
absence that results in a court-martial conviction for desertion.
Dependent eligibility for benefits is reestablished when a deserter is
returned to military control and continues, even
[[Page 79]]
though the member may be in confinement, until any discharge is
executed. When a deserter status is later found to have been determined
erroneously, the status of deserter is considered never to have existed,
and the member's dependents will have been eligible continuously for
benefits under CHAMPUS.
Diagnosis-Related Groups (DRGs). Diagnosis-related groups (DRGs) are
a method of dividing hospital patients into clinically coherent groups
based on the consumption of resources. Patients are assigned to the
groups based on their principal diagnosis (the reason for admission,
determined after study), secondary diagnoses, procedures performed, and
the patient's age, sex, and discharge status.
Diagnostic admission. An admission to a hospital or other authorized
institutional provider, or an extension of a stay in such a facility,
primarily for the purpose of performing diagnostic tests, examinations,
and procedures.
Director. The Director of the Defense Health Agency, Director,
TRICARE Management Activity, or Director, Office of CHAMPUS. Any
references to the Director, Office of CHAMPUS, or OCHAMPUS, or TRICARE
Management Activity, shall mean the Director, Defense Health Agency
(DHA). Any reference to Director shall also include any person
designated by the Director to carry out a particular authority. In
addition, any authority of the Director may be exercised by the
Assistant Secretary of Defense (Health Affairs).
Director, OCHAMPUS. An authority of the Director, OCHAMPUS includes
any person designated by the Director, OCHAMPUS to exercise the
authority involved.
Director, TRICARE Management Activity. This term includes the
Director, TRICARE Management Activity, the official sometimes referred
to in this part as the Director, Office of CHAMPUS (or OCHAMPUS), or any
designee of the Director, TRICARE Management Activity or the Assistant
Secretary of Defense for Health Affairs who is designated for purposes
of an action under this part.
Doctor of Dental Medicine (D.M.D.). A person who has received a
degree in dentistry, that is, that department of the healing arts which
is concerned with the teeth, oral cavity, and associated structures.
Doctor of Medicine (M.D.). A person who has graduated from a college
of allopathic medicine and who is entitled legally to use the
designation M.D.
Doctor of Osteopathy (D.O.). A practitioner of osteopathy, that is,
a system of therapy based on the theory that the body is capable of
making its own remedies against disease and other toxic conditions when
it is in normal structural relationship and has favorable environmental
conditions and adequate nutrition. It utilizes generally accepted
physical, medicinal, and surgical methods of diagnosis and therapy,
while placing chief emphasis on the importance of normal body mechanics
and manipulative methods of detecting and correcting faulty structure.
Domiciliary care. The term ``domiciliary care'' means care provided
to a patient in an institution or homelike environment because:
(1) Providing support for the activities of daily living in the home
is not available or is unsuitable; or
(2) Members of the patient's family are unwilling to provide the
care.
Donor. An individual who supplies living tissue or material to be
used in another body, such as a person who furnishes a kidney for renal
transplant.
Double coverage. When a CHAMPUS beneficiary also is enrolled in
another insurance, medical service, or health plan that duplicates all
or part of a beneficiary's CHAMPUS benefits.
Double coverage plan. The specific insurance, medical service, or
health plan under which a CHAMPUS beneficiary has entitlement to medical
benefits that duplicate CHAMPUS benefits in whole or in part. Double
coverage plans do not include:
(i) Medicaid.
(ii) Coverage specifically designed to supplement CHAMPUS benefits.
(iii) Entitlement to receive care from the Uniformed Services
medical facilities;
(iv) Entitlement to receive care from Veterans Administration
medical care facilities; or
(v) Part C of the Individuals with Disabilities Education Act for
services and items provided in accordance with
[[Page 80]]
Part C of the IDEA that are medically or psychologically necessary in
accordance with the Individual Family Service Plan and that are
otherwise allowable under the CHAMPUS Basic Program or the Extended Care
Health Option (ECHO).
Dual compensation. Federal Law (5 U.S.C. 5536) prohibits active duty
members or civilian employees of the United States Government from
receiving additional compensation from the government above their normal
pay and allowances. This prohibition applies to CHAMPUS cost-sharing of
medical care provided by active duty members or civilian government
employees to CHAMPUS beneficiaries.
Duplicate equipment. An item of durable equipment, durable medical
equipment, or assistive technology items, as defined in this section
that serves the same purpose that is served by an item of durable
equipment, durable medical equipment, or assistive technology item
previously cost-shared by TRICARE. For example, various models of
stationary oxygen concentrators with no essential functional differences
are considered duplicate equipment, whereas stationary and portable
oxygen concentrators are not considered duplicates of each other because
the latter is intended to provide the user with mobility not afforded by
the former. Also, a manual wheelchair and electric wheelchair, both of
which otherwise meet the definition of durable equipment or durable
medical equipment, would not be considered duplicates of each other if
each is found to provide an appropriate level of mobility. For the
purpose of this Part, durable equipment, durable medical equipment, or
assistive technology items that are essential in providing a fail-safe
in-home life support system or that replace in-like-kind an item of
equipment that is not serviceable due to normal wear, accidental damage,
a change in the beneficiary's condition, or has been declared
adulterated by the U.S. FDA, or is being or has been recalled by the
manufacturer is not considered duplicate equipment.
Durable equipment. Equipment that--
(1) Is a medically necessary item, which can withstand repeated use;
(2) Is primarily and customarily used to serve a medical purpose;
and
(3) Is generally not useful to an individual in the absence of an
illness or injury. It includes durable medical equipment as defined in
Sec. 199.2, wheelchairs, iron lungs, and hospital beds. It does not
include equipment (including wheelchairs) used or designed primarily for
use in sports or recreational activities.
Durable medical equipment. Durable equipment that is medically
appropriate to--
(1) Improve, restore, or maintain the function of a malformed,
diseased, or injured body part or can otherwise minimize or prevent the
deterioration of the beneficiary's function or condition; or
(2) Maximize the beneficiary's function consistent with the
beneficiary's physiological or medical needs.
Economic interest. (1) Any right, title, or share in the income,
remuneration, payment, or profit of a CHAMPUS-authorized provider, or of
an individual or entity eligible to be a CHAMPUS-authorized provider,
resulting, directly or indirectly, from a referral relationship; or any
direct or indirect ownership, right, title, or share, including a
mortgage, deed of trust, note, or other obligation secured (in whole or
in part) by one entity for another entity in a referral or accreditation
relationship, which is equal to or exceeds 5 percent of the total
property and assets of the other entity.
(2) A referral relationship exists when a CHAMPUS beneficiary is
sent, directed, assigned or influenced to use a specific CHAMPUS-
authorized provider, or a specific individual or entity eligible to be a
CHAMPUS-authorized provider.
(3) An accreditation relationship exists when a CHAMPUS-authorized
accreditation organization evaluates for accreditation an entity that is
an applicant for, or recipient of CHAMPUS-authorized provider status.
Emergency inpatient admission. An unscheduled, unexpected, medically
necessary admission to a hospital or other authorized institutional
provider for
[[Page 81]]
treatment of a medical condition meeting the definition of medical
emergency and which is determined to require immediate inpatient
treatment by the attending physician.
Entity. For purposes of Sec. 199.9(f)(1), ``entity'' includes a
corporation, trust, partnership, sole proprietorship or other kind of
business enterprise that is or may be eligible to receive reimbursement
either directly or indirectly from CHAMPUS.
Essential Access Community Hospital (EACH). A hospital that is
designated by the Centers for Medicare and Medicaid Services (CMS) as an
EACH and meets the applicable requirements established by Sec.
199.14(a)(7)(vi).
Extended Care Health Option (ECHO). The TRICARE program of
supplemental benefits for qualifying active duty family members as
described in Sec. 199.5.
External Partnership Agreement. The External Partnership Agreement
is an agreement between a military treatment facility commander and a
CHAMPUS authorized institutional provider, enabling Uniformed Services
health care personnel to provide otherwise covered medical care to
CHAMPUS beneficiaries in a civilian facility under the Military-Civilian
Health Services Partnership Program. Authorized costs associated with
the use of the facility will be financed through CHAMPUS under normal
cost-sharing and reimbursement procedures currently applicable under the
basic CHAMPUS.
External Resource Sharing Agreement. A type External Partnership
Agreement, established in the context of the TRICARE program by
agreement of a military medical treatment facility commander and an
authorized TRICARE contractor. External Resource Sharing Agreements may
incorporate TRICARE features in lieu of standard CHAMPUS features that
would apply to standard External Partnership Agreements.
Extramedical individual providers of care. Individuals who do
counseling or nonmedical therapy and whose training and therapeutic
concepts are outside the medical field, as specified in Sec. 199.6 of
this part.
Extraordinary physical or psychological condition. A complex
physical or psychological clinical condition of such severity which
results in the beneficiary being homebound as defined in this section.
Facility charge. The term ``facility charge'' means the charge,
either inpatient or outpatient, made by a hospital or other
institutional provider to cover the overhead costs of providing the
service. These costs would include building costs, i.e. depreciation and
interest; staffing costs; drugs and supplies; and overhead costs, i.e.,
utilities, housekeeping, maintenance, etc.
Former member. An individual who is eligible for, or entitled to,
retired pay, at age 60, for non-Regular service in accordance with
chapter 1223, title 10, United States Code but who has been discharged
and who maintains no military affiliation. These former members, at age
60, and their eligible dependents are entitled to medical care,
commissary, exchange, and MWR privileges. Under age 60, they and their
eligible dependents are entitled to commissary, exchange, and MWR
privileges only.
Former spouse. A former husband or wife of a Uniformed Service
member or former member who meets the criteria as set forth in Sec.
199.3(b)(2)(ii) of this part.
Fraud. For purposes of this part, fraud is defined as (1) a
deception or misrepresentation by a provider, beneficiary, sponsor, or
any person acting on behalf of a provider, sponsor, or beneficiary with
the knowledge (or who had reason to know or should have known) that the
deception or misrepresentation could result in some unauthorized CHAMPUS
benefit to self or some other person, or some unauthorized CHAMPUS
payment, or (2) a claim that is false or fictitious, or includes or is
supported by any written statement which asserts a material fact which
is false or fictitious, or includes or is supported by any written
statement that (a) omits a material fact and (b) is false or fictitious
as a result of such omission and (c) is a statement in which the person
making, presenting, or submitting such statement has a duty to include
such material fact. It is
[[Page 82]]
presumed that, if a deception or misrepresentation is established and a
CHAMPUS claim is filed, the person responsible for the claim had the
requisite knowledge. This presumption is rebuttable only by substantial
evidence. It is further presumed that the provider of the services is
responsible for the actions of all individuals who file a claim on
behalf of the provider (for example, billing clerks); this presumption
may only be rebutted by clear and convincing evidence.
Freestanding. Not ``institution-affiliated'' or ``institution-
based.''
Full-time course of higher education. A complete, progressive series
of studies to develop attributes such as knowledge, skill, mind, and
character, by formal schooling at a college or university, and which
meets the criteria set out in Sec. 199.3 of this part. To qualify as
full-time, the student must be carrying a course load of a minimum of 12
credit hours or equivalent each semester.
General staff nursing service. All nursing care (other than that
provided by private duty nurses) including, but not limited to, general
duty nursing, emergency room nursing, recovery room nursing, intensive
nursing care, and group nursing arrangements performed by nursing
personnel on the payroll of the hospital or other authorized
institution.
Good faith payments. Those payments made to civilian sources of
medical care who provided medical care to persons purporting to be
eligible beneficiaries but who are determined later to be ineligible for
CHAMPUS benefits. (The ineligible person usually possesses an erroneous
or illegal identification card.) To be considered for good faith
payments, the civilian source of care must have exercised reasonable
precautions in identifying a person claiming to be an eligible
beneficiary.
Habilitation. The provision of functional capacity, absent from
birth due to congenital anomaly or developmental disorder, which
facilitates performance of an activity in the manner, or within the
range considered normal, for a human being.
Handicap. For the purposes of this part, the term ``handicap'' is
synonymous with the term ``disability.''
High-risk pregnancy. A pregnancy is high-risk when the presence of a
currently active or previously treated medical, anatomical,
physiological illness or condition may create or increase the likelihood
of a detrimental effect on the mother, fetus, or newborn and presents a
reasonable possibility of the development of complications during labor
or delivery.
Homebound. A beneficiary's condition is such that there exists a
normal inability to leave home and, consequently, leaving home would
require considerable and taxing effort. Any absence of an individual
from the home attributable to the need to receive health care
treatment--including regular absences for the purpose of participating
in therapeutic, psychosocial, or medical treatment in an adult day-care
program that is licensed or certified by a state, or accredited to
furnish adult day-care services in the--state shall not disqualify an
individual from being considered to be confined to his home. Any other
absence of an individual from the home shall not disqualify an
individual if the absence is infrequent or of relatively short duration.
For purposes of the preceding sentence, any absence for the purpose of
attending a religious service shall be deemed to be an absence of
infrequent or short duration. Also, absences from the home for non-
medical purposes, such as an occasional trip to the barber, a walk
around the block or a drive, would not necessarily negate the
beneficiary's homebound status if the absences are undertaken on an
infrequent basis and are of relatively short duration. An exception is
made to the above homebound definitional criteria for beneficiaries
under the age of 18 and those receiving maternity care. The only
homebound criteria for these special beneficiary categories is written
certification from a physician attesting to the fact that leaving the
home would place the beneficiary at medical risk. In addition to the
above, absences, whether regular or infrequent, from the beneficiary's
primary residence for the purpose of attending an educational program in
a public or private school that is licensed and/or certified by a state,
shall not negate the beneficiary's homebound status.
[[Page 83]]
Home health discipline. One of six home health disciplines covered
under the home health benefit (skilled nursing services, home health
aide services, physical therapy services, occupational therapy services,
speech-language pathology services, and medical social services).
Home health market basket index. An index that reflects changes over
time in the prices of an appropriate mix of goods and services included
in home health services.
Hospice care. Hospice care is a program which provides an integrated
set of services and supplies designed to care for the terminally ill.
This type of care emphasizes palliative care and supportive services,
such as pain control and home care, rather than cure-oriented services
provided in institutions that are otherwise the primary focus under
CHAMPUS. The benefit provides coverage for a humane and sensible
approach to care during the last days of life for some terminally ill
patients.
Hospital, acute care (general and special). An institution that
meets the criteria as set forth in Sec. 199.6(b)(4)(i) of this part.
Hospital, psychiatric. An institution that meets the criteria as set
forth in Sec. 199.6(b)(4)(ii) of this part.
Illegitimate child. A child not recognized as a lawful offspring;
that is, a child born of parents not married to each other.
Immediate family. The spouse, natural parent, child and sibling,
adopted child and adoptive parent, stepparent, stepchild, grandparent,
grandchild, stepbrother and stepsister, father-in-law, mother-in-law of
the beneficiary, or provider, as appropriate. For purposes of this
definition only, to determine who may render services to a beneficiary,
the step-relationship continues to exist even if the marriage upon which
the relationship is based terminates through divorce or death of one of
the parents.
Independent laboratory. A freestanding laboratory approved for
participation under Medicare and certified by the Health Care Financing
Administration.
Infirmaries. Facilities operated by student health departments of
colleges and universities to provide inpatient or outpatient care to
enrolled students. When specifically approved by the Director, OCHAMPUS,
or a designee, a boarding school infirmary also is included.
Initial determination. A formal written decision on a CHAMPUS claim,
a request for benefit authorization, a request by a provider for
approval as an authorized CHAMPUS provider, or a decision disqualifying
or excluding a provider as an authorized provider under CHAMPUS.
Rejection of a claim or a request for benefit or provider authorization
for failure to comply with administrative requirements, including
failure to submit reasonably requested information, is not an initial
determination. Responses to general or specific inquiries regarding
CHAMPUS benefits are not initial determinations.
In-out surgery. Surgery performed in the outpatient department of a
hospital or other institutional provider, in a physician's office or the
office of another individual professional provider, in a clinic, or in a
``freestanding'' ambulatory surgical center which does not involve a
formal inpatient admission for a period of 24 hours or more.
Inpatient. A patient who has been admitted to a hospital or other
authorized institution for bed occupancy for purposes of receiving
necessary medical care, with the reasonable expectation that the patient
will remain in the institution at least 24 hours, and with the
registration and assignment of an inpatient number or designation.
Institutional care in connection with in and out (ambulatory) surgery is
not included within the meaning of inpatient whether or not an inpatient
number or designation is made by the hospital or other institution. If
the patient has been received at the hospital, but death occurs before
the actual admission occurs, an inpatient admission exists as if the
patient had lived and had been formally admitted.
Inpatient Rehabilitation Facility (IRF). A facility classified by
CMS as an IRF and meets the applicable requirements established by Sec.
199.6(b)(4)(xx) (which includes the requirement to be a Medicare
participating provider).
Institution-affiliated. Related to a CHAMPUS-authorized
institutional
[[Page 84]]
provider through a shared governing body but operating under a separate
and distinct license or accreditation.
Institution-based. Related to a CHAMPUS-authorized institutional
provider through a shared governing body and operating under a common
license and shared accreditation.
Institutional provider. A health care provider which meets the
applicable requirements established by Sec. 199.6(b) of this part.
Intensive care unit (ICU). A special segregated unit of a hospital
in which patients are concentrated by reason of serious illness, usually
without regard to diagnosis. Special lifesaving techniques and equipment
regularly and immediately are available within the unit, and patients
are under continuous observation by a nursing staff specially trained
and selected for the care of this type patient. The unit is maintained
on a continuing rather than an intermittent or temporary basis. It is
not a postoperative recovery room nor a postanesthesia room. In some
large or highly specialized hospitals, the ICUs may be further refined
for special purposes, such as for respiratory conditions, cardiac
surgery, coronary care, burn care, or neurosurgery. For the purposes of
CHAMPUS, these specialized units would be considered ICUs if they
otherwise conformed to the definition of an ICU.
Intensive outpatient program (IOP). A treatment setting capable of
providing an organized day or evening program that includes assessment,
treatment, case management and rehabilitation for individuals not
requiring 24-hour care for mental health disorders, to include substance
use disorders, as appropriate for the individual patient. The program
structure is regularly scheduled, individualized and shares monitoring
and support with the patient's family and support system.
Intern. A graduate of a medical or dental school serving in a
hospital in preparation to being licensed to practice medicine or
dentistry.
Internal Partnership Agreement. The Internal Partnership Agreement
is an agreement between a military treatment facility commander and a
CHAMPUS-authorized civilian health care provider which enables the use
of civilian health care personnel or other resources to provide medical
care to CHAMPUS beneficiaries on the premises of a military treatment
facility under the Military-Civilian Health Services Partnership
Program. These internal agreements may be established when a military
treatment facility is unable to provide sufficient health care services
for CHAMPUS beneficiaries due to shortages of personnel and other
required resources.
Internal Resource Sharing Agreement. A type of Internal Partnership
Agreement, established in the context of the TRICARE program by
agreement of a military medical treatment facility commander and
authorized TRICARE contractor. Internal Resource Sharing Agreements may
incorporate TRICARE features in lieu of standard CHAMPUS features that
would apply to standard Internal Partnership Agreements.
Item, Service, or Supply. Includes (1) any item, device, medical
supply, or service claimed to have been provided to a beneficiary
(patient) and listed in an itemized claim for CHAMPUS payment or a
request for payment, or (2) in the case of a claim based on costs, any
entry or omission in a cost report, books of account, or other documents
supporting the claim.
Laboratory and pathological services. Laboratory and pathological
examinations (including machine diagnostic tests that produce hard-copy
results) when necessary to, and rendered in connection with medical,
obstetrical, or surgical diagnosis or treatment of an illness or injury,
or in connection with well-baby care.
Legitimized child. A formerly illegitimate child who is considered
legitimate by reason of qualifying actions recognized in law.
Licensed practical nurse (L.P.N.). A person who is prepared
specially in the scientific basis of nursing; who is a graduate of a
school of practical nursing; whose qualifications have been examined by
a state board of nursing; and who has been authorized legally to
practice as an L.P.N. under the supervision of a physician.
Licensed vocational nurse (L.V.N.) A person who specifically is
prepared in the scientific basis or nursing; who is a
[[Page 85]]
graduate of a school of vocational nursing; whose qualifications have
been examined by a state board of nursing; and who has been authorized
legally to practice as a L.V.N. under the supervision of a physician.
Long Term Care Hospital (LTCH). A hospital that is classified by the
Centers for Medicare and Medicaid Services (CMS) as an LTCH and meets
the applicable requirements established by Sec. 199.6(b)(4)(v) (which
includes the requirement to be a Medicare participating provider).
Low-risk pregnancy. A pregnancy is low-risk when the basis for the
ongoing clinical expectation of a normal uncomplicated birth, as defined
by reasonable and generally accepted criteria of maternal and fetal
health, is documented throughout a generally accepted course of prenatal
care.
Major life activity. Breathing, cognition, hearing, seeing, and age
appropriate ability essential to bathing, dressing, eating, grooming,
speaking, stair use, toilet use, transferring, and walking.
Marriage and family therapist, certified. An extramedical individual
provider who meets the requirements outlined in Sec. 199.6.
Maternity care. Care and treatment related to conception, delivery,
and abortion, including prenatal and postnatal care (generally through
the 6th post-delivery week), and also including treatment of the
complications of pregnancy.
Medicaid. Those medical benefits authorized under Title XIX of the
Social Security Act provided to welfare recipients and the medically
indigent through programs administered by the various states.
Medical. The generally used term which pertains to the diagnosis and
treatment of illness, injury, pregnancy, and mental disorders by trained
and licensed or certified health professionals. For purposes of CHAMPUS,
the term ``medical'' should be understood to include ``medical,
psychological, surgical, and obstetrical,'' unless it is specifically
stated that a more restrictive meaning is intended.
Medical emergency. The sudden and unexpected onset of a medical
condition or the acute exacerbation of a chronic condition that is
threatening to life, limb, or sight, and requires immediate medical
treatment or which manifests painful symptomatology requiring immediate
palliative efforts to alleviate suffering. Medical emergencies include
heart attacks, cardiovascular accidents, poisoning, convulsions, kidney
stones, and such other acute medical conditions as may be determined to
be medical emergencies by the Director, OCHAMPUS, or a designee. In the
case of a pregnancy, a medical emergency must involve a sudden and
unexpected medical complication that puts the mother, the baby, or both,
at risk. Pain would not, however, qualify a maternity case as an
emergency, nor would incipient birth after the 34th week of gestation,
unless an otherwise qualifying medical condition is present. Examples of
medical emergencies related to pregnancy or delivery are hemorrhage,
ruptured membrane with prolapsed cord, placenta previa, abruptio
placenta, presence of shock or unconsciousness, suspected heart attack
or stroke, or trauma (such as injuries received in an automobile
accident).
Medically or psychologically necessary preauthorization. A pre (or
prior) authorization for payment for medical/surgical or psychological
services based upon criteria that are generally accepted by qualified
professionals to be reasonable for diagnosis and treatment of an
illness, injury, pregnancy, and mental disorder.
Medical supplies and dressings (consumables). Necessary medical or
surgical supplies (exclusive of durable medical equipment) that do not
withstand prolonged, repeated use and that are needed for the proper
medical management of a condition for which benefits are otherwise
authorized under CHAMPUS, on either an inpatient or outpatient basis.
Examples include disposable syringes for a diabetic, colostomy sets,
irrigation sets, and ace bandages.
Medically or psychologically necessary. The frequency, extent, and
types of medical services or supplies which represent appropriate
medical care and that are generally accepted by qualified professionals
to be reasonable and
[[Page 86]]
adequate for the diagnosis and treatment of illness, injury, pregnancy,
and mental disorders or that are reasonable and adequate for well-baby
care.
Medicare. These medical benefits authorized under Title XVIII of the
Social Security Act provided to persons 65 or older, certain disabled
persons, or persons with chronic renal disease, through a national
program administered by the DHHS, Health Care Financing Administration,
Medicare Bureau.
Medication assisted treatment (MAT). MAT for diagnosed opioid use
disorder is a holistic modality for recovery and treatment that employs
evidence-based therapy, including psychosocial treatments and
psychopharmacology, and FDA-approved medications as indicated for the
management of withdrawal symptoms and maintenance.
Member. An individual who is affiliated with a Service, either an
active duty member, Reserve member, active duty retired member, or
Retired Reserve member. Members in a retired status are not former
members. Also referred to as the sponsor.
Mental disorder, to include substance use disorder. For purposes of
the payment of CHAMPUS benefits, a mental disorder is a nervous or
mental condition that involves a clinically significant behavioral or
psychological syndrome or pattern that is associated with a painful
symptom, such as distress, and that impairs a patient's ability to
function in one or more major life activities. A substance use disorder
is a mental condition that involves a maladaptive pattern of substance
use leading to clinically significant impairment or distress; impaired
control over substance use; social impairment; and risky use of a
substance(s). Additionally, the mental disorder must be one of those
conditions listed in the current edition of the Diagnostic and
Statistical Manual of Mental Disorders. ``Conditions Not Attributable to
a Mental Disorder,'' or V codes, are not considered diagnosable mental
disorders. Co-occurring mental and substance use disorders are common
and assessment should proceed as soon as it is possible to distinguish
the substance related symptoms from other independent conditions.
Mental health therapeutic absence. A therapeutically planned absence
from the inpatient setting. The patient is not discharged from the
facility and may be away for periods of several hours to several days.
The purpose of the therapeutic absence is to give the patient an
opportunity to test his or her ability to function outside the inpatient
setting before the actual discharge.
Missing in action (MIA). A battle casualty whose whereabouts and
status are unknown, provided the absence appears to be involuntary and
the service member is not known to be in a status of unauthorized
absence.
Note: Claims for eligible CHAMPUS beneficiaries whose sponsor is
classified as MIA are processed as dependents of an active duty service
member.
Morbid obesity. A body mass index (BMI) equal to or greater than 40
kilograms per meter squared (kg/m\2\), or a BMI equal to or greater than
35 kg/m\2\ in conjunction with high-risk co-morbidities, which is based
on the guidelines established by the National Heart, Lung and Blood
Institute on the Identification and Management of Patients with Obesity.
Note: Body mass index is equal to weight in kilograms divided by
height in meters squared.
Most-favored rate. The lowest usual charge to any individual or
third-party payer in effect on the date of the admission of a CHAMPUS
beneficiary.
Natural childbirth. Childbirth without the use of chemical induction
or augmentation of labor or surgical procedures other than episiotomy or
perineal repair.
Naturopath. A person who practices naturopathy, that is, a drugless
system of therapy making use of physical forces such as air, light,
water, heat, and massage.
Note: Services of a naturopath are not covered by CHAMPUS.
NAVCARE clinics. Contractor owned, staffed, and operated primary
clinics exclusively serving uniformed services beneficiaries pursuant to
contracts awarded by a Military Department.
No-fault insurance. No-fault insurance means an insurance contract
providing
[[Page 87]]
compensation for health and medical expenses relating to personal injury
arising from the operation of a motor vehicle in which the compensation
is not premised on whom may have been responsible for causing such
injury. No-fault insurance includes personal injury protection and
medical payments benefits in cases involving personal injuries resulting
from operation of a motor vehicle.
Nonavailability statement. A certification by a commander (or a
designee) of a Uniformed Services medical treatment facility, recorded
on DEERS, generally for the reason that the needed medical care being
requested by a non-TRICARE Prime enrolled beneficiary cannot be provided
at the facility concerned because the necessary resources are not
available in the time frame needed.
Nonparticipating provider. A hospital or other authorized
institutional provider, a physician or other authorized individual
professional provider, or other authorized provider that furnished
medical services or supplies to a CHAMPUS beneficiary, but who did not
agree on the CHAMPUS claim form to participate or to accept the CHAMPUS-
determined allowable cost or charge as the total charge for the
services. A nonparticipating provider looks to the beneficiary or
sponsor for payment of his or her charge, not CHAMPUS. In such cases,
CHAMPUS pays the beneficiary or sponsor, not the provider.
North Atlantic Treaty Organization (NATO) member. A military member
of an armed force of a foreign NATO nation who is on active duty and
who, in connection with official duties, is stationed in or passing
through the United States. The foreign NATO nations are Belgium, Canada,
Denmark, France, Federal Republic of Germany, Greece, Iceland, Italy,
Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, and the
United Kingdom.
Not-for-profit entity. An organization or institution owned and
operated by one or more nonprofit corporations or associations formed
pursuant to applicable state laws, no part of the net earnings of which
inures, or may lawfully inure, to the benefit of any private shareholder
or individual.
Occupational therapist. A person who is trained specially in the
skills and techniques of occupational therapy (that is, the use of
purposeful activity with individuals who are limited by physical injury
of illness, psychosocial dysfunction, developmental or learning
disabilities, poverty and cultural differences, or the aging process in
order to maximize independence, prevent disability, and maintain health)
and who is licensed to administer occupational therapy treatments
prescribed by a physician.
Off-label use of a drug or device. A use other than an intended use
for which the prescription drug, biologic or device is legally marketed
under the Federal Food, Drug, and Cosmetic Act or the Public Health
Services Act. This includes any use that is not included in the approved
labeling for an approved drug, licensed biologic, approved device or
combination product; any use that is not included in the cleared
statement of intended use for a device that has been determined by the
Food and Drug Administration (FDA) to be substantially equivalent to a
legally marketed predicate device and cleared for marketing; and any use
of a device for which a manufacturer or distributor would be required to
seek pre-market review by the FDA in order to legally include that use
in the device's labeling.
Office-based opioid treatment. TRICARE authorized providers acting
within the scope of their licensure or certification to prescribe
outpatient supplies of the medication to assist in withdrawal management
(detoxification) and/or maintenance of opioid use disorder, as regulated
by 42 CFR part 8, addressing office-based opioid treatment (OBOT).
Official formularies. A book of official standards for certain
pharmaceuticals and preparations that are not included in the U.S.
Pharmacopeia.
Opioid Treatment Program. Opioid Treatment Programs (OTPs) are
service settings for opioid treatment, either free standing or hospital
based, that adhere to the Department of Health and Human Services'
regulations at 42 CFR part 8 and use medications indicated and approved
by the
[[Page 88]]
Food and Drug Administration. Treatment in OTPs provides a
comprehensive, individually tailored program of medication therapy
integrated with psychosocial and medical treatment and support services
that address factors affecting each patient, as certified by the Center
for Substance Abuse Treatment (CSAT) of the Department of Health and
Human Services' Substance Abuse and Mental Health Services
Administration. Treatment in OTPs can include management of withdrawal
symptoms (detoxification) from opioids and medically supervised
withdrawal from maintenance medications. Patients receiving care for
substance use and co-occurring disorders care can be referred to, or
otherwise concurrently enrolled in, OTPs.
Optometrist (Doctor of Optometry). A person trained and licensed to
examine and test the eyes and to treat visual defects by prescribing and
adapting corrective lenses and other optical aids, and by establishing
programs of exercises.
Oral surgeon (D.D.S. or D.M.D.). A person who has received a degree
in dentistry and who limits his or her practice to oral surgery, that
is, that branch of the healing arts that deals with the diagnosis and
the surgical correction and adjunctive treatment of diseases, injuries,
and defects of the mouth, the jaws, and associated structures.
Orthopedic shoes. Shoes prescribed by an orthopedic surgeon to
effect changes in foot or feet position and alignment and which are not
an integral part of a brace.
Other allied health professionals. Individual professional providers
other than physicians, dentists, or extramedical individual providers,
as specified in Sec. 199.6 of this part.
Other special institutional providers. Certain specialized medical
treatment facilities, either inpatient or outpatient, other than those
specifically defined, that provide courses of treatment prescribed by a
doctor of medicine or osteopathy; when the patient is under the
supervision of a doctor of medicine or osteopathy during the entire
course of the inpatient admission or the outpatient treatment; when the
type and level of care and services rendered by the institution are
otherwise authorized in this part; when the facility meets all licensing
or other certification requirements that are extant in the jurisdiction
in which the facility is located geographically; which is accredited by
the Joint Commission or other accrediting organization approved by the
Director if an appropriate accreditation program for the given type of
facility is available; and which is not a nursing home, intermediate
facility, halfway house, home for the aged, or other institution of
similar purpose.
Outpatient. A patient who has not been admitted to a hospital or
other authorized institution as an inpatient.
Ownership or control interest. For purposes of Sec. 199.9(f)(1), a
``person with an ownership or control interest'' is anyone who
(1) Has directly or indirectly a 5 percent or more ownership
interest in the entity; or
(2) Is the owner of a whole or part interest in any mortgage, deed
of trust, note, or other obligation secured (in whole or in part) by the
entity or any of the property or assets thereof, which whole or part
interest is equal to or exceeds 5 percent of the total property and
assets of the entity; or
(3) Is an officer or director of the entity if the entity is
organized as a corporation; or
(4) Is a partner in the entity if the entity is organized as a
partnership.
Partial hospitalization. A treatment setting capable of providing an
interdisciplinary program of medically monitored therapeutic services,
to include management of withdrawal symptoms, as medically indicated.
Services may include day, evening, night and weekend treatment programs
which employ an integrated, comprehensive and complementary schedule of
recognized treatment approaches. Partial hospitalization is a time-
limited, ambulatory, active treatment program that offers
therapeutically intensive, coordinated, and structured clinical services
within a stable therapeutic environment. Partial hospitalization is an
appropriate setting for crisis stabilization, treatment of partially
stabilized mental disorders, to include substance disorders, and a
[[Page 89]]
transition from an inpatient program when medically necessary.
Participating provider. A CHAMPUS-authorized provider that is
required, or has agreed by entering into a CHAMPUS participation
agreement or by act of indicating ``accept assignment'' on the claim
form, to accept the CHAMPUS-allowable amount as the maximum total charge
for a service or item rendered to a CHAMPUS beneficiary, whether the
amount is paid for fully by CHAMPUS or requires cost-sharing by the
CHAMPUS beneficiary.
Part-time or intermittent home health aide and skilled nursing
services. Part-time or intermittent means skilled nursing and home
health aide services furnished any number of days per week as long as
they are furnished (combined) less than 8 hours each day and 28 or fewer
hours each week (or, subject to review on a case-bay-case basis as to
the need for care, less than 8 hours each day and 35 or fewer hours per
week).
Party to a hearing. An appealing party or parties and CHAMPUS.
Party to the initial determination. Includes CHAMPUS and also refers
to a CHAMPUS beneficiary and a participating provider of services whose
interests have been adjudicated by the initial determination. In
addition, a provider who has been denied approval as an authorized
CHAMPUS provider is a party to that initial determination, as is a
provider who is disqualified or excluded as an authorized provider under
CHAMPUS, unless the provider is excluded based on a determination of
abuse or fraudulent practices or procedures under another federal or
federally funded program. See Sec. 199.10 for additional information
concerning parties not entitled to administrative review under the
CHAMPUS appeals and hearing procedures.
Pastoral counselor. An extramedical individual provider who meets
the requirements outlined in Sec. 199.6.
Pharmaceutical Agent. Drugs, biological products, and medical
devices under the regulatory authority of the Food and Drug
Administration.
Pharmacist. A person who is trained specially in the scientific
basis of pharmacology and who is licensed to prepare and sell or
dispense drugs and compounds and to make up prescriptions ordered by a
physician.
Physical medicine services or physiatry services. The treatment of
disease or injury by physical means such as massage, hydrotherapy, or
heat.
Physical therapist. A person who is trained specially in the skills
and techniques of physical therapy (that is, the treatment of disease by
physical agents and methods such as heat, massage, manipulation,
therapeutic exercise, hydrotherapy, and various forms of energy such as
electrotherapy and ultrasound), who has been authorized legally (that
is, registered) to administer treatments prescribed by a physician and
who is entitled legally to use the designation ``Registered Physical
Therapist.'' A physical therapist also may be called a physiotherapist.
Physician. A person with a degree of Doctor of Medicine (M.D.) or
Doctor of Osteopathy (D.O.) who is licensed to practice medicine by an
appropriate authority.
Physician in training. Interns, residents, and fellows participating
in approved postgraduate training programs and physicians who are not in
approved programs but who are authorized to practice only in a hospital
or other institutional provider setting, e.g., individuals with
temporary or restricted licenses, or unlicensed graduates of foreign
medical schools.
Podiatrist (Doctor of Podiatry or Surgical Chiropody). A person who
has received a degree in podiatry (formerly called chiropody), that is,
that specialized field of the healing arts that deals with the study and
care of the foot, including its anatomy, pathology, and medical and
surgical treatment.
Preauthorization. A decision issued in writing, or electronically by
the Director, TRICARE Management Activity, or a designee, that TRICARE
benefits are payable for certain services that a beneficiary has not yet
received. The term prior authorization is commonly substituted for
preauthorization and has the same meaning.
Prescription drugs and medicines. Drugs and medicines which at the
time of use were approved for commercial marketing by the U.S. Food and
Drug Administration, and which, by law of
[[Page 90]]
the United States, require a physician's or dentist's prescription,
except that it includes insulin for known diabetics whether or not a
prescription is required. Drugs grandfathered by the Federal Food, Drug
and Cosmetic Act of 1938 may be covered under CHAMPUS as if FDA
approved. Prescription drugs and medicines may also be referred to as
``pharmaceutical agents''.
Note: The fact that the U.S. Food and Drug Administration has
approved a drug for testing on humans would not qualify it within this
definition.
Preventive care. Diagnostic and other medical procedures not related
directly to a specific illness, injury, or definitive set of symptoms,
or obstetrical care, but rather performed as periodic health screening,
health assessment, or health maintenance.
Primary caregiver. An individual who renders to a beneficiary
services to support the activities of daily living (as defined in Sec.
199.2) and specific services essential to the safe management of the
beneficiary's condition.
Primary payer. The plan or program whose medical benefits are
payable first in a double coverage situation.
PRIMUS clinics. Contractor owned, staffed, and operated primary care
clinics exclusively serving uniformed services beneficiaries pursuant to
contracts awarded by a Military Department.
Private room. A room with one bed that is designated as a private
room by the hospital or other authorized institutional provider.
Profound hearing loss (adults). An ``adult'' (a spouse as defined in
section 32 CFR 199.3(b) of this part of a member of the Uniformed
Services on active duty for more than 30 days) with a hearing threshold
of:
(1) 40 dB HL or greater in one or both ears when tested at 500,
1,000, 1,500, 2,000, 3,000, or 4,000Hz; or
(2) 26 dB HL or greater in one or both ears at any three or more of
those frequencies; or
(3) A speech recognition score less than 94 percent.
Profound hearing loss (children). A ``child'' (an unmarried child of
an active duty member who otherwise meets the criteria (including age
requirements) in 32 CFR 199.3 of this part) with a 26dB HL or greater
hearing threshold level in one or both ears when tested in the frequency
range at 500, 1,000, 2,000, 3,000 or 4,000 Hz.
Program year. The appropriate year (e.g., calendar year, fiscal
year, rolling 12-month period, etc.) specified in the administration of
TRICARE programs for application of unique requirements or limitations
(e.g., enrollment fees, deductibles, catastrophic loss protection, etc.)
on covered health care services obtained or provided during the
designated time period.
Progress notes. Progress notes are an essential component of the
medical record wherein health care personnel provide written evidence of
ordered and supervised diagnostic tests, treatments, medical procedures,
therapeutic behavior and outcomes. In the case of mental health care,
progress notes must include: the date of the therapy session; length of
the therapy session; a notation of the patient's signs and symptoms; the
issues, pathology and specific behaviors addressed in the therapy
session; a statement summarizing the therapeutic interventions attempted
during the therapy session; descriptions of the response to treatment,
the outcome of the treatment, and the response to significant others;
and a statement summarizing the patient's degree of progress toward the
treatment goals. Progress notes do not need to repeat all that was said
during a therapy session but must document a patient contact and be
sufficiently detailed to allow for both peer review and audits to
substantiate the quality and quantity of care rendered.
Prosthetic device (prosthesis). An artificial substitute for a
missing body part.
Prosthetic or Prosthetic device (prosthesis). A prosthetic or
prosthetic device (prosthesis) determined by the Secretary of Defense to
be necessary because of significant conditions resulting from trauma,
congenital anomalies, or diseases.
Prosthetic supplies. Supplies that are necessary for the effective
use of a prosthetic or prosthetic device.
Provider. A hospital or other institutional provider, a physician,
or other individual professional provider, or
[[Page 91]]
other provider of services or supplies as specified in Sec. 199.6 of
this part.
Provider exclusion and suspension. The terms ``exclusion'' and
``suspension'', when referring to a provider under CHAMPUS, both mean
the denial of status as an authorized provider, resulting in items,
services, or supplies furnished by the provider not being reimbursed,
directly or indirectly, under CHAMPUS. The terms may be used
interchangeably to refer to a provider who has been denied status as an
authorized CHAMPUS provider based on (1) a criminal conviction or civil
judgment involving fraud, (2) an administrative finding of fraud or
abuse under CHAMPUS, (3) an administrative finding that the provider has
been excluded or suspended by another agency of the Federal Government,
a state, or a local licensing authority, (4) an administrative finding
that the provider has knowingly participated in a conflict of interest
situation, or (5) an administrative finding that it is in the best
interests of the CHAMPUS or CHAMPUS beneficiaries to exclude or suspend
the provider.
Provider termination. When a provider's status as an authorized
CHAMPUS provider is ended, other than through exclusion or suspension,
based on a finding that the provider does not meet the qualifications,
as set forth in Sec. 199.6 of this part, to be an authorized CHAMPUS
provider.
Psychiatric emergency. A psychiatric inpatient admission is an
emergency when, based on a psychiatric evaluation performed by a
physician (or other qualified mental health care professional with
hospital admission authority), the patient is at immediate risk of
serious harm to self or others as a result of a mental disorder and
requires immediate continuous skilled observation at the acute level of
care.
Public facility. A public authority or entity legally constituted
within a State (as defined in this section) to administer, control or
perform a service function for public health, education or human
services programs in a city, county, or township, special district, or
other political subdivision, or such combination of political
subdivisions or special districts or counties as are recognized as an
administrative agency for a State's public health, education or human
services programs, or any other public institution or agency having
administrative control and direction of a publicly funded health,
education or human services program.
Public facility adequacy. An available public facility shall be
considered adequate when the Director, OCHAMPUS, or designee, determines
that the quality, quantity, and frequency of an available service or
item otherwise allowable as a CHAMPUS benefit is sufficient to meet the
beneficiary's specific disability related need in a timely manner.
Public facility availability. A public facility shall be considered
available when the public facility usually and customarily provides the
requested service or item to individuals with the same or similar
disability related need as the otherwise equally qualified CHAMPUS
beneficiary.
Qualified accreditation organization. A not-for-profit corporation
or a foundation that:
(1) Develops process standards and outcome standards for health care
delivery programs, or knowledge standards and skill standards for health
care professional certification testing, using experts both from within
and outside of the health care program area or individual specialty to
which the standards are to be applied;
(2) Creates measurable criteria that demonstrate compliance with
each standard;
(3) Publishes the organization's standards, criteria and evaluation
processes so that they are available to the general public;
(4) Performs on-site evaluations of health care delivery programs,
or provides testing of individuals, to measure the extent of compliance
with each standard;
(5) Provides on-site evaluation or individual testing on a national
or international basis;
(6) Provides to evaluated programs and tested individuals time-
limited written certification of compliance with the organization's
standards;
(7) Excludes certification of any program operated by an
organization
[[Page 92]]
which has an economic interest, as defined in this section, in the
accreditation organization or in which the accreditation organization
has an economic interest;
(8) Publishes promptly the certification outcomes of each program
evaluation or individual test so that it is available to the general
public; and
(9) Has been found by the Director, OCHAMPUS, or designee, to apply
standards, criteria, and certification processes which reinforce CHAMPUS
provider authorization requirements and promote efficient delivery of
CHAMPUS benefits.
Qualified mental health provider. Psychiatrists or other physicians;
clinical psychologists, certified psychiatric nurse specialists,
certified clinical social workers, certified marriage and family
therapists, TRICARE certified mental health counselors, pastoral
counselors under a physician's supervision, and supervised mental health
counselors under a physician's supervision.
Radiation therapy services. The treatment of diseases by x-ray,
radium, or radioactive isotopes when ordered by the attending physician.
Rare diseases. TRICARE/CHAMPUS defines a rare disease as any disease
or condition that has a prevalence of less than 200,000 persons in the
United States.
Referral. The act or an instance of referring a CHAMPUS beneficiary
to another authorized provider to obtain necessary medical treatment.
Under CHAMPUS, only a physician may make referrals.
Registered nurse. A person who is prepared specially in the
scientific basis of nursing, who is a graduate of a school of nursing,
and who is registered for practice after examination by a state board of
nurse examiners or similar regulatory authority, who holds a current,
valid license, and who is entitled legally to use the designation R.N.
Rehabilitation. The reduction of an acquired loss of ability to
perform an activity in the manner, or within the range considered
normal, for a human being.
Rehabilitative therapy. Any rehabilitative therapy that is necessary
to improve, restore, or maintain function, or to minimize or prevent
deterioration of function, of a patient and prescribed by a physician.
Reliable evidence. (1) As used in Sec. 199.4(g)(15), the term
reliable evidence means only:
(i) Well controlled studies of clinically meaningful endpoints,
published in refereed medical literature.
(ii) Published formal technology assessments.
(iii) The published reports of national professional medical
associations.
(iv) Published national medical policy organization positions; and
(v) The published reports of national expert opinion organizations.
(2) The hierarchy of reliable evidence of proven medical
effectiveness, established by (1) through (5) of this paragraph, is the
order of the relative weight to be given to any particular source. With
respect to clinical studies, only those reports and articles containing
scientifically valid data and published in the refereed medical and
scientific literature shall be considered as meeting the requirements of
reliable evidence. Specifically not included in the meaning of reliable
evidence are reports, articles, or statements by providers or groups of
providers containing only abstracts, anecdotal evidence or personal
professional opinions. Also not included in the meaning of reliable
evidence is the fact that a provider or a number of providers have
elected to adopt a drug, device, or medical treatment or procedure as
their personal treatment or procedure of choice or standard of practice.
Representative. Any person who has been appointed by a party to the
initial determination as counsel or advisor and who is otherwise
eligible to serve as the counsel or advisor of the party to the initial
determination, particularly in connection with a hearing.
Reservist. A person who is under an active duty call or order to one
of the Uniformed Services for a period of 30 days or less or is on
inactive training.
Resident (medical). A graduate physician or dentist who has an M.D.
or D.O. degree, or D.D.S. or D.M.D. degree, respectively, is licensed to
practice, and who choose to remain on the house
[[Page 93]]
staff of a hospital to get further training that will qualify him or her
for a medical or dental specialty.
Residential treatment center (RTC). A facility (or distinct part of
a facility) which meets the criteria in Sec. 199.6(b)(4)(vii).
Respite care. Respite care is short-term care for a patient in order
to provide rest and change for those who have been caring for the
patient at home, usually the patient's family.
Retired category. Retirees and their family members who are
beneficiaries covered by 10 U.S.C. 1086(c), other than Medicare-eligible
beneficiaries as described in 10 U.S.C. 1086(d).
Retiree. For ease of reference in this part only, and except as
otherwise specified in this part, the term means a member or former
member of a Uniformed Service who is entitled to retired, retainer, or
equivalent pay based on duty in a Uniformed Service.
Routine eye examinations. The services rendered in order to
determine the refractive state of the eyes.
Sanction. For purpose of Sec. 199.9, ``sanction'' means a provider
exclusion, suspension, or termination.
Secondary payer. The plan or program whose medical benefits are
payable in double coverage situations only after the primary payer has
adjudicated the claim.
Semiprivate room. A room containing at least two beds. If a room is
designated publicly as a semiprivate accommodation by the hospital or
other authorized institutional provider and contains multiple beds, it
qualifies as a semiprivate room for the purposes of CHAMPUS.
Serious physical disability. Any physiological disorder or condition
or anatomical loss affecting one or more body systems which has lasted,
or with reasonable certainty is expected to last, for a minimum period
of 12 contiguous months, and which precludes the person with the
disorder, condition or anatomical loss from unaided performance of at
least one Major Life Activity as defined in this section.
Skilled nursing facility. An institution (or a distinct part of an
institution) that meets the criteria as set forth in Sec.
199.6(b)(4)(vi).
Skilled nursing services. Skilled nursing services includes
application of professional nursing services and skills by an RN, LPN,
or LVN, that are required to be performed under the general supervision/
direction of a TRICARE-authorized physician to ensure the safety of the
patient and achieve the medically desired result in accordance with
accepted standards of practice.
Sole community hospital (SCH). A hospital that is designated by CMS
as an SCH and meets the applicable requirements established by Sec.
199.6(b)(4)(xvii).
Spectacles, eyeglasses, and lenses. Lenses, including contact
lenses, that help to correct faulty vision.
Speech generating device (SGD). See Augmentative Communication
Device.
Sponsor. A member or former member of a Uniformed Service upon whose
status his or her dependents' eligibility for CHAMPUS is based. A
sponsor also includes a person who, while a member of the Uniformed
Services and after becoming eligible to be retired on the basis of years
of service, has his or her eligibility to receive retired pay terminated
as a result of misconduct involving abuse of a spouse or dependent
child. It also includes NATO members who are stationed in or passing
through the United States on official business when authorized. It also
includes individuals eligible for CHAMPUS under the Transitional
Assistance Management Program.
Spouse. A lawful husband or wife, who meets the criteria in Sec.
199.3 of this part, regardless of whether or not dependent upon the
member or former member for his or her own support.
State. For purposes of this part, any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, and each territory and possession of
the United States.
State victims of crime compensation programs. Benefits available to
victims of crime under the Violent Crime Control and Law Enforcement
Act.
Student status. A dependent of a member or former member of a
Uniformed Service who has not passed his or her 23rd birthday, and is
enrolled in a full-
[[Page 94]]
time course of study in an institution of higher learning.
Substance use disorder rehabilitation facility (SUDRF). A facility
or a distinct part of a facility that meets the criteria in Sec.
199.6(b)(4)(xiv).
Supervised mental health counselor. An extramedical individual
provider who meets the requirements outlined in Sec. 199.6.
Supplemental insurance plan. A health insurance policy or other
health benefit plan offered by a private entity to a CHAMPUS
beneficiary, that primarily is designed, advertised, marketed, or
otherwise held out as providing payment for expenses incurred for
services and items that are not reimbursed under CHAMPUS due to program
limitations, or beneficiary liabilities imposed by law. CHAMPUS
recognizes two types of supplemental plans, general indemnity plans, and
those offered through a direct service health maintenance organization
(HMO).
(1) An indemnity supplemental insurance plan must meet all of the
following criteria:
(i) It provides insurance coverage, regulated by state insurance
agencies, which is available only to beneficiaries of CHAMPUS.
(ii) It is premium based and all premiums relate only to the CHAMPUS
supplemental coverage.
(iii) Its benefits for all covered CHAMPUS beneficiaries are
predominantly limited to non-covered services, to the deductible and
cost-shared portions of the pre-determined allowable charges, and/or to
amounts exceeding the allowable charges for covered services.
(iv) It provides insurance reimbursement by making payment directly
to the CHAMPUS beneficiary or to the participating provider.
(v) It does not operate in a manner which results in lower
deductibles or cost-shares than those imposed by law, or that waives the
legally imposed deductibles or cost-shares.
(2) A supplemental insurance plan offered by a Health Maintenance
Organization (HMO) must meet all of the following criteria:
(i) The HMO must be authorized and must operate under relevant
provisions of state law.
(ii) The HMO supplemental plan must be premium based and all
premiums must relate only to CHAMPUS supplemental coverage.
(iii) The HMO's benefits, above those which are directly reimbursed
by CHAMPUS, must be limited predominantly to services not covered by
CHAMPUS and CHAMPUS deductible and cost-share amounts.
(iv) The HMO must provide services directly to CHAMPUS beneficiaries
through its affiliated providers who, in turn, are reimbursed by
CHAMPUS.
(v) The HMO's premium structure must be designed so that no overall
reduction in the amount of the beneficiary deductibles or cost-shares
will result.
Suppliers of portable X-ray services. A supplier that meets the
conditions of coverage of the Medicare program, set forth in the
Medicare regulations (42 CFR 405.1411 through 405.1416 (as amended)) or
the Medicaid program in the state in which the covered service is
provided.
Surgery. Medically appropriate operative procedures, including
related preoperative and postoperative care; reduction of fractures and
dislocations; injections and needling procedures of the joints; laser
surgery of the eye; and those certain procedures listed in Sec.
199.4(c)(2)(i) of this part.
Surgical assistant. A physician (or dentist or podiatrist) who
assists the operating surgeon in the performance of a covered surgical
service when such assistance is certified as necessary by the attending
surgeon, when the type of surgical procedure being performed is of such
complexity and seriousness as to require a surgical assistant, and when
interns, residents, or other house staff are not available to provide
the surgical assistance services in the specialty area required.
Suspension of claims processing. The temporary suspension of
processing (to protect the government's interests) of claims for care
furnished by a specific provider (whether the claims are submitted by
the provider or beneficiary) or claims submitted by or on behalf of a
specific CHAMPUS beneficiary pending action by the Director, OCHAMPUS,
or a designee, in a case of suspected fraud or abuse. The action
[[Page 95]]
may include the administrative remedies provided for in Sec. 199.9 or
any other Department of Defense issuance (e.g. DoD issuances
implementing the Program Fraud Civil Remedies Act), case development or
investigation by OCHAMPUS, or referral to the Department of Defense-
Inspector General or the Department of Justice for action within their
cognizant jurisdictions.
Teaching physician. A teaching physician is any physician whose
duties include providing medical training to physicians in training
within a hospital or other institutional provider setting.
Third-party billing agent. Any entity that acts on behalf of a
provider to prepare, submit and monitor claims, excluding those entities
that act solely as a collection agency.
Third-party payer. Third-payer means an entity that provides an
insurance, medical service, or health plan by contract or agreement,
including an automobile liability insurance or no fault insurance
carrier and a worker's compensation program or plan, and any other plan
or program (e.g., homeowners insurance) that is designed to provide
compensation or coverage for expenses incurred by a beneficiary for
medical services or supplies. For purposes of the definition of ``third-
party payer,'' an insurance, medical service, or health plan includes a
preferred provider organization, an insurance plan described as Medicare
supplemental insurance, and a personal injury protection plan or medical
payments benefit plan for personal injuries resulting from the operation
of a motor vehicle.
Note: TRICARE is secondary payer to all third-party payers. Under
limited circumstances described in Sec. 199.8(c)(2) of this part,
TRICARE payment may be authorized to be paid in advance of adjudication
of the claim by certain third-party payers. TRICARE advance payments
will not be made when a third-party provider is determined to be a
primary medical insurer under Sec. 199.8(c)(3) of this part.''
Timely filing. The filing of CHAMPUS claims within the prescribed
time limits as set forth in Sec. 199.7 of this part.
Transitional Assistance Management Program (TAMP). The program
established under 10 U.S.C. Sec. 1145(a) and Sec. 199.3(e) of this
part.
Treatment plan. A detailed description of the medical care being
rendered or expected to be rendered a CHAMPUS beneficiary seeking
approval for inpatient and other benefits for which preauthorization is
required as set forth in Sec. 199.4(b). Medical care described in the
plan must meet the requirements of medical and psychological necessity.
A treatment plan must include, at a minimum, a diagnosis (either current
International Statistical Classification of Diseases and Related Health
Problems (ICD) or current Diagnostic and Statistical Manual of Mental
Disorders (DSM)); detailed reports of prior treatment, medical history,
family history, social history, and physical examination; diagnostic
test results; consultant's reports (if any); proposed treatment by type
(such as surgical, medical, and psychiatric); a description of who is or
will be providing treatment (by discipline or specialty); anticipated
frequency, medications, and specific goals of treatment; type of
inpatient facility required and why (including length of time the
related inpatient stay will be required); and prognosis. If the
treatment plan involves the transfer of a CHAMPUS patient from a
hospital or another inpatient facility, medical records related to that
inpatient stay also are required as a part of the treatment plan
documentation.
TRICARE certified mental health counselor. An allied health
professional who meets the requirements outlined in Sec. 199.6.
TRICARE Extra. The preferred-provider option of the TRICARE program
made available prior to January 1, 2018, under which TRICARE Standard
beneficiaries may obtain discounts on cost sharing as a result of using
TRICARE network providers.
TRICARE for Life. The Medicare wraparound coverage option of the
TRICARE program made available to an eligible beneficiary by reason of
10 U.S.C. 1086(d).
TRICARE Hospital Outpatient Prospective Payment System (OPPS). OPPS
is a hospital outpatient prospective payment system, based on nationally
established APC payment amounts and standardized for geographic wage
differences that includes operating and
[[Page 96]]
capital-related costs that are directly related and integral to
performing a procedure or furnishing a service in a hospital outpatient
department.
TRICARE Prime. The managed care option of the TRICARE program
established under Sec. 199.17.
TRICARE program. The program established under Sec. 199.17.
TRICARE Reserve Select. The program established under 10 U.S.C.
1076d and Sec. 199.24 of this Part.
TRICARE Retired Reserve. The program established under 10 U.S.C.
1076e and Sec. 199.25.
TRICARE Select. The self-managed, preferred-provider network option
under the TRICARE Program established by 10 U.S.C. 1075 and Sec. 199.17
to replace TRICARE Extra and Standard after December 31, 2017.
TRICARE Standard. The TRICARE program made available prior to
January 1, 2018, covering health benefits contracted for under the
authority of 10 U.S.C. section 1079(a) or 1086(a) and subject to the
same rates and conditions as apply to persons covered under those
sections.
TRICARE Young Adult. The program authorized by and described in
Sec. 199.26 of this part.
Uniform HMO benefit. The health care benefit established by Sec.
199.18.
Uniformed Services. The Army, Navy, Air Force, Marine Corps, Coast
Guard, Commissioned Corps of the USPHS, and the Commissioned Corps of
the NOAA.
Veteran. A person who served in the active military, naval, or air
service, and who was discharged or released therefrom under conditions
other than dishonorable.
Note: Unless the veteran is eligible for ``retired pay,''
``retirement pay,'' or ``retainer pay,'' which refers to payments of a
continuing nature and are payable at fixed intervals from the government
for military service neither the veteran nor his or her dependents are
eligible for benefits under CHAMPUS.
Waiver of benefit limits. Extension of current benefit limitations
under the Case Management Program, of medical care, services, and/or
equipment, not otherwise a benefit under the TRICARE/CHAMPUS program.
Well-child care. A specific program of periodic health screening,
developmental assessment, and routine immunization for dependents under
six years of age.
Widow or Widower. A person who was a spouse at the time of death of
a member or former member and who has not remarried.
Worker's compensation benefits. Medical benefits available under any
worker's compensation law (including the Federal Employees Compensation
Act), occupational disease law, employers liability law, or any other
legislation of similar purpose, or under the maritime doctrine of
maintenance, wages, and cure.
X-ray services. An x-ray examination from which an x-ray film or
other image is produced, ordered by the attending physician when
necessary and rendered in connection with a medical or surgical
diagnosis or treatment of an illness or injury, or in connection with
maternity or well-baby care.
[51 FR 24008, July 1, 1986]
Editorial Note: For Federal Register citations affecting Sec.
199.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 199.3 Eligibility.
(a) General. This section sets forth those persons who, by the
provisions of 10 U.S.C. chapter 55, and the NATO Status of Forces
Agreement, are eligible for CHAMPUS benefits. A determination that a
person is eligible does not automatically entitle such a person to
CHAMPUS payments. Before any CHAMPUS benefits may be extended,
additional requirements, as set forth in other sections of this part,
must be met. Additionally, the use of CHAMPUS may be denied if a
Uniformed Service medical treatment facility capable of providing the
needed care is available. CHAMPUS relies primarily on the Defense
Enrollment Eligibility Reporting System (DEERS) for eligibility
verification.
(b) CHAMPUS eligibles--(1) Retiree. A member or former member of a
Uniformed Service who is entitled to retired, retainer, or equivalent
pay based on duty in a Uniformed Service.
[[Page 97]]
(2) Dependent. Individuals whose relationship to the sponsor leads
to entitlement to benefits. CHAMPUS eligible dependents include the
following:
(i) Spouse. A lawful husband or wife of a member or former member.
The spouse of a deceased member or retiree must not be remarried. A
former spouse also may qualify for benefits as a dependent spouse. A
former spouse is a spouse who was married to a military member, or
former member, but whose marriage has been terminated by a final decree
of divorce, dissolution or annulment. To be eligible for CHAMPUS
benefits, a former spouse must meet the criteria described in paragraphs
(b)(2)(i)(A) through (b)(2)(i)(E) of this section and must qualify under
the group defined in paragraph (b)(2)(i)(F)(1) or (b)(2)(i)(F)(2) of
this section.
(A) Must be unremarried; and
(B) Must not be covered by an employer-sponsored health plan; and
(C) Must have been married to a member or former member who
performed at least 20 years of service which can be credited in
determining the member's or former member's eligibility for retired or
retainer pay; and
(D) Must not be eligible for Part A of Title XVIII of the Social
Security Act (Medicare) except as provided in paragraphs (b)(3),
(f)(3)(vii), (f)(3)(viii), and (f)(3)(ix) of this section; and
(E) Must not be the dependent of a NATO member; and
(F) Must meet the requirements of paragraph (b)(2)(i)(F)(1) or
(b)(2)(i)(F)(2) of this section:
(1) The former spouse must have been married to the same member or
former member for at least 20 years, at least 20 of which were
creditable in determining the member's or former member's eligibility
for retired or retainer pay. Eligibility continues indefinitely unless
affected by any of the conditions of paragraphs (b)(2)(i)(A) through
(b)(2)(i)(E) of this section.
(i) If the date of the final decree of divorce, dissolution, or
annulment was before February 1, 1983, the former spouse is eligible for
CHAMPUS coverage of health care received on or after January 1, 1985.
(ii) If the date of the final decree of the divorce, dissolution, or
annulment was on or after February 1, 1983, the former spouse is
eligible for CHAMPUS coverage of health care which is received on or
after the date of the divorce, dissolution, or annulment.
(2) The former spouse must have been married to the same member or
former member for at least 20 years, and at least 15, but less than 20
of those married years were creditable in determining the member's or
former member's eligibility for retired or retainer pay.
(i) If the date of the final decree of divorce, dissolution, or
annulment is before April 1, 1985, the former spouse is eligible only
for care received on or after January 1, 1985, or the date of the
divorce, dissolution, or annulment, whichever is later. Eligibility
continues indefinitely unless affected by any of the conditions of
paragraphs (b)(2)(i)(A) through (b)(2)(i)(E) of this section.
(ii) If the date of the final decree of divorce, dissolution or
annulment is on or after April 1, 1985, but before September 29, 1988,
the former spouse is eligible only for care received from the date of
the decree of divorce, dissolution, or annulment until December 31,
1988, or for two years from the date of the divorce, dissolution, or
annulment, whichever is later.
(iii) If the date of the final decree of divorce, dissolution, or
annulment is on or after September 29, 1988, the former spouse is
eligible only for care received within the 365 days (366 days in the
case of a leap year) immediately following the date of the divorce,
dissolution, or annulment.
(ii) Child. A dependent child is an unmarried child of a member or
former member who has not reached his or her twenty-first (21st)
birthday, except an incapacitated adopted child meeting the requirements
of paragraph (b)(2)(ii)(H)(2) of this section, and who bears one of the
following relationships to a member or former member of one of the
Uniformed Services:
(A) A legitimate child; or
(B) An adopted child whose adoption has been legally completed on or
before the child's twenty-first (21st) birthday; or
(C) A legitimate stepchild; or
[[Page 98]]
(D) An illegitimate child of a member or former member whose
paternity/maternity has been determined judicially, and the member or
former member directed to support the child; or
(E) An illegitimate child of a member or former member whose
paternity/maternity has not been determined judicially, who resides with
or in the home provided by the member or former member, and is or
continues to be dependent upon the member or former member for over one-
half of his or her support, or who was so dependent on the former member
at the time of the former member's death; or
(F) An illegitimate child of a spouse of a member who resides with
or in a home provided by the member and is, and continues to be
dependent upon the member for over one-half of his or her support; or
(G) An illegitimate child of a spouse of a former member who resides
with or in a home provided by a former member or the former member's
spouse at the time of death of the former member, and is, or continues
to be, or was, dependent upon the former member for more than one-half
of his or her support at the time of death; or
(H) An individual who falls into one of the following classes:
(1) A student. A child determined to be a member of one of the
classes in paragraphs (b)(2)(ii)(A) through (b)(2)(ii)(G) of this
section, who is not married, has passed his or her 21st birthday but has
not passed his or her 23rd birthday, is dependent upon the member or
former member for over 50 percent of his or her support or was dependent
upon the member or former member for over 50 percent of his or her
support on the date of the member's or former member's death, and is
pursuing a full-time course of education in an institution of higher
learning approved by the Secretary of Defense or the Department of
Education (as appropriate) or by a state agency under 38 U.S.C. chapters
34 and 35.
Note: Courses of education offered by institutions listed in the
``Education Directory,'' ``Higher Education'' or ``Accredited Higher
Institutions'' issued periodically by the Department of Education meet
the criteria approved by the Administering Secretary or the Secretary of
Education. For determination of approval of courses offered by a foreign
institution, by an institution not listed in either of the above
directories, or by an institution not approved by a state agency
pursuant to 38 U.S.C. chapters 34 and 35, a statement may be obtained
from the Department of Education, Washington, D.C. 20202.
(2) An incapacitated child. A child determined to be a member of one
of the classes in paragraphs (b)(2)(ii)(A) through (b)(2)(ii)(G) of this
section, who is not married and is incapable of self-support because of
a mental or physical disability that:
(i) Existed before the child's twenty-first (21st) birthday; or
(ii) Occurred between the ages of 21 and 23 while the child was
enrolled in a full-time course of study in an institution of higher
learning approved by the Administering Secretary or the Department of
Education (see NOTE to paragraph (b)(2)(ii)(H)(2)(iii) of this section),
and is or was at the time of the member's or former member's death
dependent on the member or former member for over one-half of his or her
support; and
(iii) The incapacity is continuous. (If the incapacity significantly
improves or ceases at any time, CHAMPUS eligibility cannot be reinstated
on the basis of the incapacity, unless the incapacity recurs and the
beneficiary is under age 21, or is under age 23 and is enrolled as a
full-time student under paragraph (b)(2)(ii)(H)(2)(ii) of this section.
If the child was not incapacitated after that date, no CHAMPUS
eligibility exists on the basis of the incapacity. However,
incapacitated children who marry and who subsequently become unmarried
through divorce, annulment, or death of spouse, may be reinstated as
long as they still meet all other requirements).
Note: An institution of higher learning is a college, university, or
similar institution, including a technical or business school, offering
post-secondary level academic instruction that leads to an associate or
higher degree, if the school is empowered by the appropriate State
education authority under State law to grant an associate, or higher,
degree. When there is no State law to authorize the granting of a
degree, the school may be recognized as an institution of higher
learning if it is accredited for degree programs by a recognized
accrediting agency.
[[Page 99]]
The term also shall include a hospital offering educational programs at
the post-secondary level regardless of whether the hospital grants a
post-secondary degree. The term also shall include an educational
institution that is not located in a State, that offers a course leading
to a standard college degree, or the equivalent, and that is recognized
as such by the Secretary of Education (or comparable official) of the
country, or other jurisdiction, in which the institution is located (38
U.S.C. chapter 34, section 1661, and chapter 35, section 1701.
Courses of education offered by institutions listed in the
``Education Directory,'' ``Higher Education'' or ``Accredited Higher
Institutions'' issued periodically by the Department of Education meet
the criteria approved by the Administering Secretary or the Secretary of
Education. For determination of approval of courses offered by a foreign
institution, by an institution not listed in either of the above
directories, or by an institution not approved by a state agency
pursuant to chapters 34 and 35 of 38 U.S.C., a statement may be obtained
from the Department of Education, Washington, D.C. 20202.
(3) A child of a deceased reservist. A child, who is determined to
be a member of one of the classes in paragraphs (b)(2)(ii)(A) through
(b)(2)(ii)(G) of this section, of a reservist in a Uniformed Service who
incurs or aggravates an injury, illness, or disease, during, or on the
way to or from, active duty training for a period of 30 days or less or
inactive duty training, and the reservist dies as a result of that
specific injury, illness or disease.
(4) An unmarried person. An unmarried person placed in the home of a
member or former member prior to adoption. To be a dependent child, the
unmarried person must not have reached the age of 21 (or otherwise meets
the requirements of a student or incapacitated child set out in
paragraphs (b)(2)(ii)(H)(1) or (b)(2)(ii)(H)(2) of this section) and has
been placed in the home of the member or former member by a recognized
placement agency or by any other source authorized by State or local law
to provide adoption placement, in anticipation of legal adoption by the
member or former member.
(iii) Abused dependents--(A) Categories of abused dependents. An
abused dependent may be either a spouse or a child. Eligibility for
either class of abused dependent results from being either:
(1) The spouse (including a former spouse) or child of a member who
has received a dishonorable or bad-conduct discharge, or dismissal from
a Uniformed Service as a result of a court-martial conviction for an
offense involving physical or emotional abuse of the spouse or child, or
was administratively discharged as a result of such an offense. Until
October 17, 1998, Medical benefits are limited to care related to the
physical or emotional abuse and for a period of 12 months following the
member's separation from the Uniformed Service. On or after October 17,
1998, medical benefits can include all under the Basic Program and under
the Extended Care Health Option for the period that the spouse or child
is in receipt of transitional compensation under section 1059 of title
10 U.S.C.
(2) The spouse (including a former spouse) or child of a member or
former member who while a member and as a result of misconduct involving
abuse of the spouse or child has eligibility to receive retired pay on
the basis of years of service terminated.
(B) Requirements for categories of abused dependents--(1) Abused
spouse. As long as the spouse is receiving payments from the DoD
Military Retirement Fund under court order, the spouse is eligible for
health care under the same conditions as any spouse of a retired member.
The abused spouse must:
(i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a lawful
husband or wife or a former spouse of the member; or
(ii) Under paragraph (b)(2)(iii)(A)(2) of this section, be a lawful
husband or wife or a former spouse of the member or former member, and
the spouse is receiving payments from the Department of Defense Military
Retirement Fund under 10 U.S.C. 1408(h) pursuant to a court order; and
(A) Be a victim of the abuse; and
(B) Have been married to the member or former member at the time of
the abuse; or
(C) Be the natural or adoptive parent of a dependent child of the
member or former member who was the victim of the abuse.
(2) Abused child. The abused child must:
[[Page 100]]
(i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a
dependent child of the member or former member.
(ii) Under paragraph (b)(2)(iii)(A)(2) of this section,
(A) Have been a member of the household where the abuse occurred;
and
(B) Be an unmarried legitimate child, including an adopted child or
stepchild of the member or former member; and
(C) Be under the age of 18; or
(D) Be incapable of self support because of a mental or physical
incapacity that existed before becoming 18 years of age and be dependent
on the member or former member for over one-half of his or her support;
or
(E) If enrolled in a full-time course of study in an institution of
higher learning recognized by the Secretary of Defense (for the purposed
of 10 U.S.C. 1408(h)), be under 23 years of age and be dependent on the
member or former member for over one-half of his or her support.
(F) The dependent child is eligible for health care, regardless of
whether any court order exists, under the same conditions as any
dependent of a retired member.
(3) TAMP eligibles. A former member, including his or her
dependents, who is eligible under the provisions of the Transitional
Assistance Management Program as described in paragraph (e) of this
Sec. 199.3.
(iv) An unmarried person who is placed in the legal custody of a
member or former member by a court of competent jurisdiction in the
United States (or possession of the United States) for a period of at
least 12 consecutive months. The unmarried person shall be considered a
dependent of the member or former member under this section provided he
or she otherwise meets the following qualifications:
(A) Has not reached the age of 21 unless he or she otherwise meets
the requirements of a student set out in paragraph (b)(2)(ii)(H)(1) of
this section or the requirements for being incapacitated as set out in
paragraph (b)(2)(ii)(H)(2) of this section and the incapacitation
occurred while he or she was a dependent of the member or former member
through court ordered legal custody;
(B) Is dependent on the member or former member for over one-half of
the person's support;
(C) Resides with the member or former member unless separated by the
necessity of military service or to receive institutional care as a
result of disability or incapacitation or under such other authorized
circumstances; and,
(D) Is not a dependent of a member or former member under any other
provision of law or regulation.
(3) Eligibility under TRICARE Senior Pharmacy Program. Section 711
of the National Defense Authorization Act for Fiscal Year 2001 (Public
Law 106-398, 114 Stat. 1654) established the TRICARE Senior Pharmacy
Program effective April 1, 2001. To be eligible for this program, a
person is required to be:
(i) Medicare eligible, who is:
(A) 65 years of age or older; and
(B) Entitled to Medicare Part A; and
(C) Enrolled in Medicare Part B, except for a person who attained
age 65 prior to April 1, 2001, is not required to enroll in Part B; and
(ii) Otherwise qualified under one of the following categories:
(A) A retired uniformed service member who is entitled to retired or
retainer pay, or equivalent pay including survivors who are annuitants;
or
(B) A dependent of a member of the uniformed services described in
one of the following:
(1) A member who is on active duty for a period of more than 30 days
or died while on such duty; or
(2) A member who died from an injury, illness, or disease incurred
or aggravated while the member was:
(i) On active duty under a call or order to active duty of 30 days
or less, on active duty for training, or on inactive duty training; or
(ii) Traveling to or from the place at which the member was to
perform or had performed such active duty, active duty for training, or
inactive duty training.
Note to paragraph (b)(3)(ii)(B): Dependent under Section 711 of the
National Defense Authorization Act for Fiscal Year 2001 includes spouse,
unremarried widow/widower, child, parent/parent-in-law, unremarried
former spouse, and unmarried person in the
[[Page 101]]
legal custody of a member or former member, as those terms of dependency
are defined and periods of eligibility are set forth in 10 U.S.C.
1072(2).
(4) Medal of Honor recipients. (i) A former member of the armed
forces who is a Medal of Honor recipient and who is not otherwise
entitled to medical and dental benefits has the same CHAMPUS eligibility
as does a retiree.
(ii) Immediate dependents. CHAMPUS eligible dependents of a Medal of
Honor Recipient are those identified in paragraphs (b)(2)(i) of this
section (except for former spouses) and (b)(2)(ii) of this section
(except for a child placed in legal custody of a Medal of Honor
recipient under (b)(2)(ii)(H)(4) of this section).
(iii) Effective date. The CHAMPUS eligibility established by
paragraphs (b)(4)(i) and (ii) of this section is applicable to health
care services provided on or after October 30, 2000.
(5) Reserve Component Members issued delayed-effective-date orders--
(i) Member. A member of a reserve component of the armed forces who is
ordered to active duty for a period of more than 30 consecutive days in
support of a contingency operation under a provision of law referred to
in section 101(a)(13)(B) of Title 10, United States Code, that provides
for active-duty service to begin on a date after the date of the
issuance of the order.
(ii) Dependents. CHAMPUS eligible dependents under this paragraph
(b)(5) are those identified in paragraphs (b)(2)(i) (except former
spouses) and (b)(2)(ii) of this section.
(iii) Effective date. The eligibility established by paragraphs
(b)(5)(i) and (ii) of this section shall begin on or after November 6,
2003, and shall be effective on the later of the date that is:
(A) The date of issuance of the order referred to in paragraph
(b)(5)(i) of this section; or
(B) 180 days before the date on which the period of active duty is
to begin.
(iv) Termination date. The eligibility established by paragraphs
(b)(5)(i) and (ii) of this section ends upon entry of the member onto
active duty (at which time CHAMPUS eligibility for the dependents of the
member is established under paragraph (b)(2) of this section) or upon
cancellation or amendment of the orders referred to in paragraph
(b)(5)(i) of this section such that they no longer meet the requirements
of that paragraph (b)(5)(i).
(c) Beginning dates of eligibility. (1) Beginning dates of
eligibility depend on the class to which the individual belongs and the
date the individual became a member of the class. Those who join after
the class became eligible attain individual eligibility on the date they
join.
(2) Beginning dates of eligibility for each class of spouse
(excluding spouses who are victims of abuse and eligible spouses of
certain deceased reservists) are as follows:
(i) A spouse of a member for:
(A) Medical benefits authorized by the Dependents' Medical Care Act
of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1,
1966;
(C) Inpatient medical benefits under the Basic Program and benefits
under the Extended Care Health Option, January 1, 1967;
(ii) A spouse of a former member:
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Extended Care Health Option.
(iii) A former spouse:
(A) For medical benefits under the Basic Program, dates of beginning
eligibility are as indicated for each category of eligible former spouse
identified within paragraph (b)(2)(i) of this section.
(B) Ineligible for benefits under the Extended Care Health Option.
(3) Beginning dates of eligibility for spouses who are victims of
abuse (excluding spouses who are victims of abuse of certain deceased
reservists) are as follows:
(i) An abused spouse meeting the requirements of paragraph
(b)(2)(iii)(A)(1) of this section, including an eligible former spouse:
(A) For medical and dental care for problems associated with the
physical or emotional abuse under the Basic Program for a period of up
to one year (12 months) following the person's separation from the
Uniformed Service, November 14, 1986.
[[Page 102]]
(B) For all medical and dental benefits under the Basic Program for
the period that the spouse is in receipt of transitional compensation
under section 1059 of title 10 U.S.C., October 17, 1998.
(C) For medical and dental care for problems associated with the
physical or emotional abuse under the Extended Care Health Option for a
period up to one year (12 months) following the person's separation from
the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5
for the period that the spouse is in receipt of transitional
compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused spouse meeting the requirements of paragraphs
(b)(2)(iii)(A)(2) of this section, including an eligible former spouse:
(A) For all benefits under the CHAMPUS Basic Program, October 23,
1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(4) Beginning dates of eligibility for spouses of certain deceased
reservists, including spouses who are victims of abuse of certain
deceased reservists, are as follows:
(i) A spouse meeting the requirements of paragraph (b)(2)(i) of this
section, including an eligible former spouse:
(A) For benefits under the Basic Program, November 14, 1986.
(B) Ineligible for benefits under the Extended Care Health Option.
(ii) An abused spouse of certain deceased reservists, meeting the
requirements of paragraphs (b)(2)(iii) of this section, including an
eligible former spouse, for the limited benefits and period of
eligibility described in paragraphs (b)(2)(iii) of this section:
(A) For benefits under the Basic Program, November 14, 1986.
(B) For benefits under the Extended Care Health Option, November 14,
1986.
(iii) An abused spouse of certain deceased reservists, including an
eligible former spouse, meeting the requirements of paragraphs
(b)(2)(iii) of this section:
(A) For benefits under the Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(5) Beginning dates of eligibility for each class of dependent
children, (excluding dependent children of certain deceased reservists,
abused children and incapacitated children whose incapacity occurred
between the ages of 21 and 23 while enrolled in a full-time course of
study in an institution of higher learning), are as follows:
(i) Legitimate child, adopted child, or legitimate stepchild of a
member, for:
(A) Medical benefits authorized by the Dependents' Medical Care Act
of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1,
1966;
(C) Inpatient medical benefits under the Basic Program and benefits
under the Extended Care Health Option, January 1, 1967;
(ii) Legitimate child, adopted child or legitimate stepchild of
former members:
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Extended Care Health Option.
(iii) Illegitimate child of a male or female member or former member
whose paternity/maternity has been determined judicially and the member
or former member has been directed to support the child, for:
(A) All benefits for which otherwise entitled, August 31, 1972.
(B) Extended Care Health Option benefits limited to dependent
children of members only, August 31, 1972.
(iv) Illegitimate child of:
(A) A male member or former member whose paternity has not been
determined judicially:
(B) A female member or former member who resides with, or in a home
provided by the member or former member, or who was residing in a home
provided by the member or former member at the time of the member's or
former member's death, and who is or continues to be dependent on the
member for over one-half of his or her support, or was so dependent on
the member or former member at the time of death;
(C) A spouse of a member or former member who resides with or in a
home
[[Page 103]]
provided by the member or former member, or the parent who is the spouse
of the member or former member or was the spouse of a member or former
member at the time of death, and who is and continues to be dependent
upon the member or former member for over one-half of his or her
support, or was so dependent on the member or former member at the time
of death; for:
(1) All benefits for which otherwise eligible, January 1, 1969.
(2) Extended Care Health Option limited to dependent children of
members only, January 1, 1969.
(6) Beginning dates of eligibility for children of certain deceased
reservists who meet the requirements of paragraph (b)(2)(ii)(H)(3) of
this section, excluding incapacitated children who meet the requirements
of paragraph (b)(2)(ii)(H)(2) of this section, for:
(i) Benefits under the Basic program, November 14, 1986.
(ii) Not eligible for benefits under the Extended Care Health
Option.
(7) Beginning dates of eligibility for children who are victims of
abuse, including incapacitated children who meet the requirements of
paragraph (b)(2)(ii)(H)(2) of this section are as follows:
(i) An abused child meeting the requirements of paragraph
(b)(2)(iii)(A)(1) of this section:
(A) Medical and dental care for problems associated with the
physical or emotional abuse under the Basic Program for a period of up
to one year (12 months) following the person's separation from the
Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for
the period that the child is in receipt of transitional compensation
under section 1059 of title 10 U.S.C., October 17, 1998.
(C) Medical and dental care for problems associated with the
physical or emotional abuse under the Extended Care Health Option for a
period up to one year (12 months) following the person's separation from
the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5
for the period that the child is in receipt of transitional compensation
under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused child meeting the requirements of paragraphs
(b)(2)(iii)(A)(2) of this section:
(A) For all benefits under the CHAMPUS Basic Program, October 23,
1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(8) Beginning dates of eligibility for incapacitated children who
meet the requirements of paragraph (b)(2)(ii)(H)(2) of this section,
whose incapacity occurred between the ages of 21 and 23 while enrolled
in a full-time course of study in an institution of higher learning
approved by the Administering Secretary or the Department of Education,
and, are or were at the time of the member's or former member's death,
dependent on the member or former member for over one-half of their
support, for:
(i) All benefits for which otherwise entitled, October 23, 1992.
(ii) Extended Care Health Option benefits limited to children of
members only, October 23, 1992.
(9) Beginning dates of eligibility for a child who meets the
requirements of paragraph (b)(2)(ii)(H)(4) and:
(i) Has been placed in custody by a court:
(A) All benefits for which entitled, July 1, 1994.
(B) Extended Care Health Option benefits limited to children of
members only, July 1, 1994.
(ii) Has been placed in custody by a recognized adoption agency:
(A) All benefits for which entitled, October 5, 1994.
(B) Extended Care Health Option benefits limited to children of
members only, October 5, 1994.
(iii) Has been placed in the home of a member by a placement agency
or by any other source authorized by State or local law to provide
adoption placement, in anticipation of the legal adoption of the member:
(A) All benefits for which entitled, January 6, 2006.
(B) Extended Care Health Option benefits limited to children of
members only, January 6, 2006.
[[Page 104]]
(10) Beginning dates of eligibility for a retiree for:
(i) Medical benefits under the Basic Program January 1, 1967.
(ii) Retirees and their dependents are not eligible for benefits
under the Extended Care Health Option.
(d) Dual eligibility. Dual eligibility occurs when a person is
entitled to benefits from two sources. For example, when an active duty
member is also the dependent of another active duty member, a retiree,
or a deceased active duty member or retiree, dual eligibility, that is,
entitlement to direct care from the Uniformed Services medical care
system and CHAMPUS is the result. Since the active duty status is
primary, and it is the intent that all medical care be provided an
active duty member through the Uniformed Services medical care system,
CHAMPUS eligibility is terminated as of 12:01 a.m. on the day following
the day the dual eligibility begins. However, any dependent children in
a marriage of two active duty persons or of an active duty member and a
retiree, are CHAMPUS eligible in the same manner as dependent children
of a marriage involving only one CHAMPUS sponsor. Should a spouse or
dependent who has dual eligibility leave active duty status, that
person's CHAMPUS eligibility is reinstated as of 12:01 a.m. of the day
active duty ends, if he or she otherwise is eligible as a dependent of a
CHAMPUS sponsor.
Note: No CHAMPUS eligibility arises as the result of the marriage of
two active duty members.
(e) Eligibility under the Transitional Assistance Management Program
(TAMP). (1) A member of the armed forces is eligible for transitional
health care if the member is:
(i) A member who is involuntarily separated from active duty.
(ii) A member of a Reserve component who is separated from active
duty to which called or ordered in support of a contingency operation if
the active duty is active duty for a period of more than 30 consecutive
days.
(iii) A member who is separated from active duty for which the
member is involuntarily retained under 10 U.S.C. 12305 in support of a
contingency operation; or
(iv) A member who is separated from active duty served pursuant to a
voluntary agreement of the member to remain on active duty for a period
of less than 1 year in support of a contingency operation.
(v) A member who receives a sole survivorship discharge (as defined
in section 1174(i) of this title).
(vi) A member who is separated from Active Duty who agrees to become
a member of the Selected Reserve of the Ready Reserve of a reserve
component.
(2) A spouse (as described in paragraph (b)(2)(i) of this section
except former spouses) and child (as described in paragraph (b)(2)(ii)
of this section) of a member described in paragraph (e)(1) of this
section is also eligible for TAMP benefits under TRICARE.
(3) TAMP benefits under TRICARE begin on the day after the member is
separated from active duty, and, if such separation occurred on or after
November 6, 2003, end 180 days after such date. TRICARE benefits
available to both the member and eligible family members are generally
those available to family members of members of the uniformed services
under this Part. However, during TAMP eligibility, a member of a Reserve
Component as described in paragraph (e)(1)(ii) of this section, is
entitled to dental care to which a member of the uniformed services on
active duty for more than 30 days is entitled. Each branch of service
will determine eligibility for its members and eligible family members
and provide data to DEERS.
(f) Changes in status which result in termination of CHAMPUS
eligibility. Changes in status which result in a loss of CHAMPUS
eligibility as of 12:01 a.m. of the day following the day the event
occurred, unless otherwise indicated, are as follows:
(1) Changes in the status of a member. (i) When an active duty
member's period of active duty ends, excluding retirement or death.
(ii) When an active duty member is placed on desertion status
(eligibility is reinstated when the active duty member is removed from
desertion status and returned to military control).
Note: A member serving a sentence of confinement in conjunction with
a sentence of
[[Page 105]]
punitive discharge is still considered on active duty until such time as
the discharge is executed.
(2) Changes in the status of a retiree. (i) When a retiree ceases to
be entitled to retired, retainer, or equivalent pay for any reason, the
retiree's dependents lose their eligibility unless the dependent is
otherwise eligible (e.g., some former spouses, some dependents who are
victims of abuse and some incapacitated children as outlined in
paragraph (b)(2)(ii)(H)(2) of this section).
(ii) A retiree also loses eligibility when no longer entitled to
retired, retainer, or equivalent pay.
Note: A retiree who waives his or her retired, retainer or
equivalent pay is still considered a retiree for the purposes of CHAMPUS
eligibility.
(iii) Attainment of entitlement to hospital insurance benefits (Part
A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii),
(f)(3)(viii) and (f)(3)(ix) of this section.
(3) Changes in the status of a dependent. (i) Divorce, except for
certain classes of former spouses as provided in paragraph (b)(2)(i) of
this section and the member or former member's own children (i.e.,
legitimate, adopted, and judicially determined illegitimate children).
Note: An unadopted stepchild loses eligibility as of 12:01 a.m. of
the day following the day the divorce becomes final.
(ii) Annulment, except for certain classes of former spouse as
provided in paragraph (b)(2)(i) of this section and the member or former
member's own children (i.e., legitimate, adopted, and judicially
determined illegitimate children).
Note: An unadopted stepchild loses eligibility as of 12:01 a.m. of
the day following the day the annulment becomes final.
(iii) Adoption, except for adoptions occurring after the death of a
member or former member.
(iv) Marriage of a child, except when the marriage is terminated by
death, divorce, or annulment before the child is 21 or 23 if an
incapacitated child as provided in paragraph (b)(2)(ii)(H)(2) of this
section.
(v) Marriage of a widow or widower, except for the child of the
widow or widower who was the stepchild of the deceased member or former
member at the time of death. The stepchild continues CHAMPUS eligibility
as other classes of dependent children.
(vi) Attainment of entitlement to hospital insurance benefits (Part
A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii),
(f)(3)(viii), and (f)(3)(ix) of this section. (This also applies to
individuals living outside the United States where Medicare benefits are
not available.)
(vii) Attainment of age 65, except for dependents of active duty
members, beneficiaries not entitled to part A of Medicare, beneficiaries
entitled to Part A of Medicare who have enrolled in Part B of Medicare,
and as provided in paragraph (b)(3) of this section. For those who do
not retain CHAMPUS, CHAMPUS eligibility is lost at 12:01 a.m. on the
first day of the month in which the beneficiary becomes entitled to
Medicare.
Note: If the person is not eligible for Part A of Medicare, he or
she must file a Social Security Administration, ``Notice of
Disallowance'' certifying to that fact with the Uniformed Service
responsible for the issuance of his or her identification card so a new
card showing CHAMPUS eligibility can be issued. Individuals entitled
only to supplementary medical insurance (Part B) of Medicare, but not
Part A, or Part A through the Premium HI provisions (provided for under
the 1972 Amendments to the Social Security Act) retain eligibility under
CHAMPUS (refer to Sec. 199.8 for additional information when a double
coverage situation is involved).
(viii) End stage renal disease. All beneficiaries, except dependents
of active duty members, lose their CHAMPUS eligibility when Medicare
coverage becomes available to a person because of chronic renal disease
unless the following conditions have been met. CHAMPUS eligibility will
continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions
of 42 U.S.C. 426-1(a);
(C) The individual is enrolled in Part B of Medicare; and
[[Page 106]]
(D) The individual has applied and qualified for continued CHAMPUS
eligibility through the Defense Enrollment Eligibility Reporting System
(DEERS).
(ix) Individuals with certain disabilities. Each case relating to
Medicare eligibility resulting from being disabled requires individual
investigation. All beneficiaries except dependents of active duty
members lose their CHAMPUS eligibility when Medicare coverage becomes
available to a disabled person unless the following conditions have been
met. CHAMPUS eligibility will continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions
of 42 U.S.C. 426(b)(2);
(C) The individual is enrolled in Part B of Medicare except that in
the case of a retroactive determination of entitlement to Medicare Part
A hospital insurance benefits for a person under 65 years of age there
is no requirement to enroll in Medicare Part B from the Medicare Part A
entitlement date until the issuance of such retroactive determination;
and
(D) The individual has applied and qualified for continued CHAMPUS
eligibility through the Defense Enrollment Eligibility Reporting System
(DEERS).
(x) Disabled students, that is children age 21 or 22, who are
pursuing a full-time course of higher education and who, either during
the school year or between semesters, suffer a disabling illness or
injury with resultant inability to resume attendance at the institution
remain eligible for CHAMPUS medical benefits for 6 months after the
disability is removed or until the student passes his or her 23rd
birthday, whichever occurs first. However, if recovery occurs before the
23rd birthday and there is resumption of a full-time course of higher
education, CHAMPUS benefits can be continued until the 23rd birthday.
The normal vacation periods during an established school year do not
change the eligibility status of a dependent child 21 or 22 years old in
a full time student status. Unless an incapacitating condition existed
before, and at the time of, a dependent child's 21st birthday, a
dependent child 21 or 22 years old in student status does not have
eligibility and may not qualify for eligibility under the requirements
related to mental or physical incapacity as described in paragraph
(b)(2)(ii)(H)(2) of this section.
(g) Reinstatement of CHAMPUS eligibility. Circumstances which result
in reinstatement of CHAMPUS eligibility are as follows:
(1) End Stage renal disease. Unless CHAMPUS eligibility has been
continued under paragraph (f)(3)(viii) of the section, when Medicare
eligibility ceases for end-stage renal disease patients, CHAMPUS
eligibility resumes if the person is otherwise still eligible. He or she
is required to take action to be reinstated as a CHAMPUS beneficiary and
to obtain a new identification card.
(2) Disability. Some disabilities are permanent, others temporary.
Each case must be reviewed individually. Unless CHAMPUS eligibility has
been continued under paragraph (f)(3)(ix) of this section, when
disability ends and Medicare eligibility ceases, CHAMPUS eligibility
resumes if the person is otherwise still eligible. Again, he or she is
required to take action to obtain a new CHAMPUS identification card.
(3) Enrollment in Medicare Part B. For individuals whose CHAMPUS
eligibility has terminated pursuant to paragraph (f)(2)(iii) or
(f)(3)(vi) of this section due to beneficiary action to decline Part B
of Medicare, CHAMPUS eligibility resumes, effective on the date Medicare
Part B coverage begins, if the person subsequently enrolls in Medicare
Part B and the person is otherwise still eligible.
(h) Determination of eligibility status. Determination of an
individual's eligibility as a CHAMPUS beneficiary is the primary
responsibility of the Uniformed Service in which the member or former
member is, or was, a member, or in the case of dependents of a NATO
military member, the Service that sponsors the NATO member. For the
purpose of program integrity, the appropriate Uniformed Service shall,
upon request of the Director, OCHAMPUS, review the eligibility of a
specific person when there is reason to question the eligibility status.
In such
[[Page 107]]
cases, a report on the results of the review and any action taken will
be submitted to the Director, OCHAMPUS, or a designee.
(i) Procedures for determination of eligibility. Procedures for the
determination of eligibility are prescribed within the Department of
Defense Instruction 1000.13 available at local military facilities
personnel offices.
(j) CHAMPUS procedures for verification of eligibility. (1)
Eligibility for CHAMPUS benefits will be verified through the Defense
Enrollment Eligibility Reporting System (DEERS) maintained by the
Uniformed Services, except for abused dependents as set forth in
paragraph (b)(2)(iii) of this section. It is the responsibility of the
CHAMPUS beneficiary, or parent, or legal representative, when
appropriate, to provide the necessary evidence required for entry into
the DEERS file to establish CHAMPUS eligibility and to ensure that all
changes in status that may affect eligibility be reported immediately to
the appropriate Uniformed Service for action.
(2) Ineligibility for CHAMPUS benefits may be presumed in the
absence of prescribed eligibility evidence in the DEERS file.
(3) The Director, OCHAMPUS, shall issue guidelines as necessary to
implement the provisions of this section.
[64 FR 46135, Aug. 24, 1999, as amended at 66 FR 9654, Feb. 9, 2001; 66
FR 16400, Mar. 26, 2001; 66 FR 40606, Aug. 3, 2001; 67 FR 15725, Apr. 3,
2002; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30, 2003; 69 FR
51564, Aug. 20, 2004; 69 FR 60554, Oct. 12, 2004; 70 FR 12802, Mar. 16,
2005; 72 FR 2447, Jan. 19, 2007; 75 FR 50883, Aug. 18, 2010; 76 FR
81367, Dec. 28, 2011; 77 FR 38176, June 27, 2012; 80 FR 55254, Sept. 15,
2015]
Sec. 199.4 Basic program benefits.
(a) General. The CHAMPUS Basic Program is essentially a supplemental
program to the Uniformed Services direct medical care system. The Basic
Program is similar to private insurance programs, and is designed to
provide financial assistance to CHAMPUS beneficiaries for certain
prescribed medical care obtained from civilian sources.
(1)(i) Scope of benefits. Subject to all applicable definitions,
conditions, limitations, or exclusions specified in this part, the
CHAMPUS Basic Program will pay for medically or psychologically
necessary services and supplies required in the diagnosis and treatment
of illness or injury, including maternity care and well-baby care.
Benefits include specified medical services and supplies provided to
eligible beneficiaries from authorized civilian sources such as
hospitals, other authorized institutional providers, physicians, other
authorized individual professional providers, and professional ambulance
service, prescription drugs, authorized medical supplies, and rental or
purchase of durable medical equipment.
(ii) Impact of TRICARE program. The basic program benefits set forth
in this section are applicable to the basic CHAMPUS program. In areas in
which the TRICARE program is implemented, certain provisions of Sec.
199.17 will apply instead of the provisions of this section. In those
areas, the provisions of Sec. 199.17 will take precedence over any
provisions of this section with which they conflict.
(2) Persons eligible for Basic Program benefits. Persons eligible to
receive the Basic Program benefits are set forth in Sec. 199.3 of this
part. Any person determined to be an eligible CHAMPUS beneficiary is
eligible for Basic Program benefits.
(3) Authority to act for CHAMPUS. The authority to make benefit
determinations and authorize the disbursement of funds under CHAMPUS is
restricted to the Director, OCHAMPUS; designated OCHAMPUS staff;
Director, OCHAMPUSEUR; or CHAMPUS fiscal intermediaries. No other
persons or agents (such as physicians, staff members of hospitals, or
CHAMPUS health benefits advisors) have such authority.
(4) Status of patient controlling for purposes of cost-sharing.
Benefits for covered services and supplies described in this section
will be extended either on an inpatient or outpatient cost-sharing basis
in accordance with the status of the patient at the time the covered
services and supplies were provided, unless otherwise specifically
designated (such as for ambulance service or maternity care). For cost-
sharing provisions, refer to paragraph (f) of this section.
[[Page 108]]
(5) Right to information. As a condition precedent to the provision
of benefits hereunder, OCHAMPUS or its CHAMPUS fiscal intermediaries
shall be entitled to receive information from a physician or hospital or
other person, institution, or organization (including a local, state, or
U.S. Government agency) providing services or supplies to the
beneficiary for which claims or requests for approval for benefits are
submitted. Such information and records may relate to the attendance,
testing, monitoring, or examination or diagnosis of, or treatment
rendered, or services and supplies furnished to a beneficiary, and shall
be necessary for the accurate and efficient administration of CHAMPUS
benefits. Before a determination will be made on a request for
preauthorization or claim of benefits, a beneficiary or sponsor must
provide particular additional information relevant to the requested
determination, when necessary. The recipient of such information shall
in every case hold such records confidential except when:
(i) Disclosure of such information is authorized specifically by the
beneficiary;
(ii) Disclosure is necessary to permit authorized governmental
officials to investigate and prosecute criminal actions, or
(iii) Disclosure is authorized or required specifically under the
terms of the Privacy Act or Freedom of Information Act (refer to Sec.
199.1(m) of this part).
For the purposes of determining the applicability of and implementing
the provisions of Sec. Sec. 199.8, 199.11, and 199.12, or any provision
of similar purpose of any other medical benefits coverage or
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries may release,
without consent or notice to any beneficiary or sponsor, to any person,
organization, government agency, provider, or other entity any
information with respect to any beneficiary when such release
constitutes a routine use published in the Federal Register in
accordance with DoD 5400.11-R (Privacy Act (5 U.S.C. 552a)). Before a
person's claim of benefits will be adjudicated, the person must furnish
to CHAMPUS information that reasonably may be expected to be in his or
her possession and that is necessary to make the benefit determination.
Failure to provide the requested information may result in denial of the
claim.
(6) Physical examinations. The Director, OCHAMPUS, or a designee,
may require a beneficiary to submit to one or more medical (including
psychiatric) examinations to determine the beneficiary's entitlement to
benefits for which application has been made or for otherwise authorized
medically necessary services and supplies required in the diagnosis or
treatment of an illness or injury (including maternity and well-baby
care). When a medical examination has been requested, CHAMPUS will
withhold payment of any pending claims or preauthorization requests on
that particular beneficiary. If the beneficiary refuses to agree to the
requested medical examination, or unless prevented by a medical reason
acceptable to OCHAMPUS, the examination is not performed within 90 days
of initial request, all pending claims for services and supplies will be
denied. A denial of payments for services or supplies provided before
(and related to) the request for a physical examination is not subject
to reconsideration. The medical examination and required beneficiary
travel related to performing the requested medical examination will be
at the expense of CHAMPUS. The medical examination may be performed by a
physician in a Uniformed Services medical facility or by an appropriate
civilian physician, as determined and selected by the Director,
OCHAMPUS, or a designee who is responsible for making such arrangements
as are necessary, including necessary travel arrangements.
(7) Claims filing deadline. For all services provided on or after
January 1, 1993, to be considered for benefits, all claims submitted for
benefits must, except as provided in Sec. 199.7, be filed with the
appropriate CHAMPUS contractor no later than one year after the services
are provided. Unless the requirement is waived, failure to file a claim
within this deadline waives all rights to benefits for such services or
supplies.
[[Page 109]]
(8) Double coverage and third party recoveries. CHAMPUS claims
involving double coverage or the possibility that the United States can
recover all or a part of its expenses from a third party, are
specifically subject to the provisions of Sec. 199.8 or Sec. 199.12 of
this part as appropriate.
(9) Nonavailability Statements within a 40-mile catchment area.
Unless required by action of the Assistant Secretary of Defense for
Health Affairs (ASD(HA)) under this paragraph (a)(9), nonavailability
statements are not required. If they are required by ASD(HA) action, in
some geographic locations, CHAMPUS beneficiaries not enrolled in TRICARE
Prime may be required to obtain a nonavailability statement from a
military medical treatment facility in order to receive specifically
identified health care services from a civilian provider. If the
required care cannot be provided through the Uniformed Service facility,
the hospital commander, or a designee, will issue a Nonavailability
Statement (NAS) (DD Form 1251). Failure to secure such a statement may
waive the beneficiary's rights to benefits under CHAMPUS/TRICARE.
(i) With the exception of maternity services, the ASD(HA) may
require an NAS prior to TRICARE cost-sharing for additional services
from civilian sources if such services are to be provided to a
beneficiary who lives within a 40-mile catchment area of an MTF where
such services are available and the ASD(HA):
(A) Demonstrates that significant costs would be avoided by
performing specific procedures at the affected MTF or MTFs; or
(B) Determines that a specific procedure must be provided at the
affected MTF or MTFs to ensure the proficiency levels of the
practitioners at the MTF or MTFs; or
(C) Determines that the lack of NAS data would significantly
interfere with TRICARE contract administration; and
(D) Provides notification of the ASD(HA)'s intent to require an NAS
under this authority to covered beneficiaries who receive care at the
MTF or MTFs that will be affected by the decision to require an NAS
under this authority; and
(E) Provides at least 60-day notification to the Committees on Armed
Services of the House of Representatives and the Senate of the ASD(HA)'s
intent to require an NAS under this authority, the reason for the NAS
requirement, and the date that an NAS will be required.
(ii) Rules in effect at the time civilian medical care is provided
apply. The applicable rules and regulations regarding Nonavailability
Statements in effect at the time the civilian care is rendered apply in
determining whether a NAS is required.
(iii) The Director, TMA is responsible for issuing the procedural
rules and regulations regarding Nonavailability Statements. Such rules
and regulations should address:
(A) When and for what services a NAS is required. However, a NAS may
not be required for services otherwise available at an MTF located
within a 40-mile radius of the beneficiary's residence when another
insurance plan or program provides the beneficiary's primary coverage
for the services. This requirement for an NAS does not apply to
beneficiaries enrolled in TRICARE Prime, even when those beneficiaries
use the point-of-service option under Sec. 199.17(n)(3) of this part;
and
(B) When and how notifications will be made to a beneficiary who is
not enrolled in TRICARE Prime as to whether or not he or she resides in
a geographic area that requires obtaining a NAS; and
(C) What information relating to claims submissions, including the
documentation, if any, that is required to document that a valid NAS was
issued. However, when documentation of a NAS is required, then that
documentation shall be valid for the adjudication of CHAMPUS claims for
all related care otherwise authorized by this part which is received
from a civilian source while the beneficiary resided within the
Uniformed Service facility catchment area which issued the NAS.
(iv) In the case of any service subject to a NAS requirement under
this paragraph (a)(9) and also subject to a preadmission (or other pre-
service) authorization requirement under Sec. 199.4 or Sec. 199.15 of
this part, the administrative
[[Page 110]]
processes for the NAS and pre-service authorization may be combined.
(10) [Reserved]
(11) Quality and Utilization Review Peer Review Organization
program. All benefits under the CHAMPUS program are subject to review
under the CHAMPUS Quality and Utilization Review Peer Review
Organization program pursuant to Sec 199.15.
(12) [Reserved]
(13) Implementing instructions. The Director, OCHAMPUS shall issue
policies, procedures, instructions, guidelines, standards and/or
criteria to implement this section.
(14) Confidentiality of substance use disorder treatment. Release of
any patient identifying information, including that required to
adjudicate a claim, must comply with the provisions of section 543 of
the Public Health Service Act, as amended, (42 U.S.C. 290dd-2), and
implementing regulations at 42 CFR part 2, which governs the release of
medical and other information from the records of patients undergoing
treatment of substance use disorder. If the patient refuses to authorize
the release of medical records which are, in the opinion of the
Director, Defense Health Agency, or a designee, necessary to determine
benefits on a claim for treatment of substance use disorder, the claim
will be denied.
(b) Institutional benefits--(1) General. Services and supplies
provided by an institutional provider authorized as set forth in Sec.
199.6 may be cost-shared only when such services or supplies: are
otherwise authorized by this part; are medically necessary; are ordered,
directed, prescribed, or delivered by an OCHAMPUS-authorized individual
professional provider as set forth in Sec. 199.6 or by an employee of
the authorized institutional provider who is otherwise eligible to be a
CHAMPUS authorized individual professional provider; are delivered in
accordance with generally accepted norms for clinical practice in the
United States; meet established quality standards; and comply with
applicable definitions, conditions, limitations, exceptions, or
exclusions as otherwise set forth in this part.
(i) Billing practices. To be considered for benefits under Sec.
199.4(b), covered services and supplies must be provided and billed for
by a hospital or other authorized institutional provider. Such billings
must be fully itemized and sufficiently descriptive to permit CHAMPUS to
determine whether benefits are authorized by this part. Depending on the
individual circumstances, teaching physician services may be considered
an institutional benefit in accordance with Sec. 199.4(b) or a
professional benefit under Sec. 199.4(c). See paragraph (c)(3)(xiii) of
this section for the CHAMPUS requirements regarding teaching physicians.
In the case of continuous care, claims shall be submitted to the
appropriate CHAMPUS fiscal intermediary at least every 30 days either by
the beneficiary or sponsor or, on a participating basis, directly by the
facility on behalf of the beneficiary (refer to Sec. 199.7).
(ii) Successive inpatient admissions. Successive inpatient
admissions shall be deemed one inpatient confinement for the purpose of
computing the active duty dependent's share of the inpatient
institutional charges, provided not more than 60 days have elapsed
between the successive admissions, except that successive inpatient
admissions related to a single maternity episode shall be considered one
confinement, regardless of the number of days between admissions. For
the purpose of applying benefits, successive admissions will be
determined separately for maternity admissions and admissions related to
an accidental injury (refer to Sec. 199.4(f)).
(iii) Related services and supplies. Covered services and supplies
must be rendered in connection with and related directly to a covered
diagnosis or definitive set of symptoms requiring otherwise authorized
medically necessary treatment.
(iv) Inpatient, appropriate level required. For purposes of
inpatient care, the level of institutional care for which Basic Program
benefits may be extended must be at the appropriate level required to
provide the medically necessary treatment except for patients requiring
skilled nursing facility care. For patients for whom skilled nursing
facility care is adequate, but is not available in the general locality,
benefits may be continued in the higher level care facility. General
locality
[[Page 111]]
means an area that includes all the skilled nursing facilities within 50
miles of the higher level facility, unless the higher level facility can
demonstrate that the skilled nursing facilities are inaccessible to its
patients. The decision as to whether a skilled nursing facility is
within the higher level facility's general locality, or the skilled
nursing facility is inaccessible to the higher level facility's patients
shall be a CHAMPUS contractor initial determination for the purposes of
appeal under Sec. 199.10 of this part. CHAMPUS institutional benefit
payments shall be limited to the allowable cost that would have been
incurred in the skilled nursing facility, as determined by the Director,
OCHAMPUS, or a designee. If it is determined that the institutional care
can be provided reasonably in the home setting, no CHAMPUS institutional
benefits are payable.
(v) General or special education not covered. Services and supplies
related to the provision of either regular or special education
generally are not covered. Such exclusion applies whether a separate
charge is made for education or whether it is included as a part of an
overall combined daily charge of an institution. In the latter instance,
that portion of the overall combined daily charge related to education
must be determined, based on the allowable costs of the educational
component, and deleted from the institution's charges before CHAMPUS
benefits can be extended. The only exception is when appropriate
education is not available from or not payable by the cognizant public
entity. Each case must be referred to the Director, OCHAMPUS, or a
designee, for review and a determination of the applicability of CHAMPUS
benefits.
(vi) Substance use disorder treatment exclusions. (A) The programmed
use of physical measures, such as electric shock, alcohol, or other
drugs as negative reinforcement (aversion therapy) is not covered, even
if recommended by a physician.
(B) Domiciliary settings. Domiciliary facilities generally referred
to as halfway or quarterway houses are not authorized providers and
charges for services provided by these facilities are not covered.
(2) Covered hospital services and supplies--(i) Room and board.
Includes special diets, laundry services, and other general housekeeping
support services (inpatient only).
(ii) General staff nursing services.
(iii) ICU. Includes specialized units, such as for respiratory
conditions, cardiac surgery, coronary care, burn care, or neurosurgery
(inpatient only).
(iv) Operating room, recovery room. Operating room and recovery
room, including other special treatment rooms and equipment, and
hyperbaric chamber.
(v) Drugs and medicines. Includes sera, biologicals, and
pharmaceutical preparations (including insulin) that are listed in the
official formularies of the institution or facility at the time of use.
(To be considered as an inpatient supply, drugs and medicines must be
consumed during the specific period the beneficiary is a registered
inpatient. Drugs and medicines prescribed for use outside the hospital,
even though prescribed and obtained while still a registered inpatient,
will be considered outpatient supplies and the provisions of paragraph
(d) of this section will apply.)
(vi) Durable medical equipment, medical supplies, and dressings.
Includes durable medical equipment, medical supplies essential to a
surgical procedure (such as artificial heart valve and artificial ball
and socket joint), sterile trays, casts, and orthopedic hardware. Use of
durable medical equipment is restricted to an inpatient basis.
Note: If durable medical equipment is to be used on an outpatient
basis or continued in outpatient status after use as an inpatient,
benefits will be provided as set forth in paragraph (d) of this section
and cost-sharing will be on an outpatient basis (refer to paragraph
(a)(4) of this section).
(vii) Diagnostic services. Includes clinical laboratory
examinations, x-ray examinations, pathological examinations, and machine
tests that produce hard-copy results. Also includes CT scanning under
certain limited conditions.
(viii) Anesthesia. Includes both the anesthetic agent and its
administration.
[[Page 112]]
(ix) Blood. Includes blood, plasma and its derivatives, including
equipment and supplies, and its administration.
(x) Radiation therapy. Includes radioisotopes.
(xi) Physical therapy.
(xii) Oxygen. Includes equipment for its administration.
(xiii) Intravenous injections. Includes solution.
(xiv) Shock therapy.
(xv) Chemotherapy.
(xvi) Renal and peritoneal dialysis.
(xvii) Psychological evaluation tests. When required by the
diagnosis.
(xviii) Other medical services. Includes such other medical services
as may be authorized by the Director, OCHAMPUS, or a designee, provided
they are related directly to the diagnosis or definitive set of symptoms
and rendered by a member of the institution's medical or professional
staff (either salaried or contractual) and billed for by the hospital.
(xix) Medication assisted treatment. Covered drugs and medicines for
the treatment of substance use disorder include the substitution of a
therapeutic drug, with addictive potential, for a drug addiction when
medically or psychologically necessary and appropriate medical care for
a beneficiary undergoing supervised treatment for a substance use
disorder.
(xx) Withdrawal management (detoxification). For a beneficiary
undergoing treatment for a substance use disorder, this includes
management of a patient's withdrawal symptoms (detoxification).
(3) Covered services and supplies provided by special medical
treatment institutions or facilities, other than hospitals or RTCs--(i)
Room and board. Includes special diets, laundry services, and other
general housekeeping support services (inpatient only).
(ii) General staff nursing services.
(iii) Drugs and medicines. Includes sera, biologicals, and
pharmaceutical preparations (including insulin) that are listed in the
official formularies of the institution or facility at the time of use.
(To be considered as an inpatient supply, drugs and medicines must be
consumed during the specific period the beneficiary is a registered
inpatient. Drugs and medicines prescribed for use outside the authorized
institutional provider, even though prescribed and obtained while still
a registered inpatient, will be considered outpatient supplies and the
provisions of paragraph (d) of this section will apply.).
(iv) Durable medical equipment, medical supplies, and dressings.
Includes durable medical equipment, sterile trays, casts, orthopedic
hardware and dressings. Use of durable medical equipment is restricted
to an inpatient basis.
Note: If the durable medical equipment is to be used on an
outpatient basis or continued in outpatient status after use as an
inpatient, benefits will be provided as set forth in paragraph (d) of
this section, and cost-sharing will be on an outpatient basis (refer to
paragraph (a)(4) of this section).
(v) Diagnostic services. Includes clinical laboratory examinations,
x-ray examinations, pathological examination, and machine tests that
produce hard-copy results.
(vi) Blood. Includes blood, plasma and its derivatives, including
equipment and supplies, and its administration.
(vii) Physical therapy.
(viii) Oxygen. Includes equipment for its administration.
(ix) Intravenous injections. Includes solution.
(x) Shock therapy.
(xi) Chemotherapy.
(xii) Psychological evaluation tests. When required by the
diagnosis.
(xiii) Renal and peritoneal dialysis.
(xiv) Skilled nursing facility (SNF) services. Covered services in
SNFs are the same as provided under Medicare under section 1861(h) and
(i) of the Social Security Act (42 U.S.C. 1395x(h) and (i)) and 42 CFR
part 409, subparts C and D, except that the Medicare limitation on the
number of days of coverage under section 1812(a) and (b) of the Social
Security Act (42 U.S.C. 1395d(a) and (b)) and 42 CFR 409.61(b) shall not
be applicable under TRICARE. Skilled nursing facility care for each
spell of illness shall continue to be provided for as long as medically
necessary and appropriate. For a SNF admission to be covered under
TRICARE, the beneficiary must have a qualifying hospital stay meaning an
inpatient hospital stay of three consecutive days or more, not including
the hospital leave day. The beneficiary must enter the SNF within
[[Page 113]]
30 days of leaving the hospital, or within such time as it would be
medically appropriate to begin an active course of treatment, where the
individual's condition is such that SNF care would not be medically
appropriate within 30 days after discharge from a hospital. The skilled
services must be for a medical condition that was either treated during
the qualifying three-day hospital stay, or started while the beneficiary
was already receiving covered SNF care. Additionally, an individual
shall be deemed not to have been discharged from a SNF, if within 30
days after discharge from a SNF, the individual is again admitted to a
SNF. Adoption by TRICARE of most Medicare coverage standards does not
include Medicare coinsurance amounts. Extended care services furnished
to an inpatient of a SNF by such SNF (except as provided in paragraphs
(b)(3)(xiv)(C), (b)(3)(xiv)(F), and (b)(3)(xiv)(G) of this section)
include:
(A) Nursing care provided by or under the supervision of a
registered professional nurse;
(B) Bed and board in connection with the furnishing of such nursing
care;
(C) Physical or occupational therapy or speech-language pathology
services furnished by the SNF or by others under arrangements with them
by the facility;
(D) Medical social services;
(E) Such drugs, biological, supplies, appliances, and equipment,
furnished for use in the SNF, as are ordinarily furnished for the care
and treatment of inpatients;
(F) Medical services provided by an intern or resident-in-training
of a hospital with which the facility has such an agreement in effect;
and
(G) Such other services necessary to the health of the patients as
are generally provided by SNFs, or by others under arrangements with
them made by the facility.
(xv) Other medical services. Other medical services may be
authorized by the Director, OCHAMPUS, or a designee, provided they are
related directly to the diagnosis or definitive set of symptoms and
rendered by a member of the institution's medical or professional staff
(either salaried or contractual) and billed for by the authorized
institutional provider of care.
(xvi) Medication assisted treatment. Covered drugs and medicines for
the treatment of substance use disorder include the substitution of a
therapeutic drug, with addictive potential, for a drug addiction when
medically or psychologically necessary and appropriate medical care for
a beneficiary undergoing supervised treatment for a substance use
disorder.
(xvii) Withdrawal management (detoxification). For a beneficiary
undergoing treatment for a substance use disorder, this includes
management of a patient's withdrawal symptoms (detoxification).
(4) Services and supplies provided by RTCs--(i) Room and board.
Includes use of residential facilities such as food service (including
special diets), laundry services, supervised reasonable recreational and
social activity services, and other general services as considered
appropriate by the Director, OCHAMPUS, or a designee.
(ii) Patient assessment. Includes the assessment of each child or
adolescent accepted by the RTC, including clinical consideration of each
of his or her fundamental needs, that is, physical, psychological,
chronological age, developmental level, family, educational, social,
environmental, and recreational.
(iii) Diagnostic services. Includes clinical laboratory
examinations, x-ray examinations, pathological examinations, and machine
tests that produce hard-copy results.
(iv) Psychological evaluation tests.
(v) Treatment of mental disorders. Services and supplies that are
medically or psychologically necessary to diagnose and treat the mental
disorder for which the patient was admitted to the RTC. Covered services
and requirements for qualifications of providers are as listed in
paragraph (c)(3)(ix) of this section.
(vi) Other necessary medical care. Emergency medical services or
other authorized medical care may be rendered by the RTC provided it is
professionally capable of rendering such services and meets standards
required by the Director, OCHAMPUS. It is intended, however, that
CHAMPUS payments to an RTC should primarily
[[Page 114]]
cover those services and supplies directly related to the treatment of
mental disorders that require residential care.
(vii) Criteria for determining medical or psychological necessity.
In determining the medical or psychological necessity of services and
supplies provided by RTCs, the evaluation conducted by the Director,
OCHAMPUS (or designee) shall consider the appropriate level of care for
the patient, the intensity of services required by the patient, and the
availability of that care. In addition to the criteria set forth in this
paragraph (b)(4) of this section, additional evaluation standards,
consistent with such criteria, may be adopted by the Director, OCHAMPUS
(or designee). RTC services and supplies shall not be considered
medically or psychologically necessary unless, at a minimum, all the
following criteria are clinically determined in the evaluation to be
fully met:
(A) Patient has a diagnosable psychiatric disorder.
(B) Patient exhibits patterns of disruptive behavior with evidence
of disturbances in family functioning or social relationships and
persistent psychological and/or emotional disturbances.
(C) RTC services involve active clinical treatment under an
individualized treatment plan that provides for:
(1) Specific level of care, and measurable goals/objectives relevant
to each of the problems identified;
(2) Skilled interventions by qualified mental health professionals
to assist the patient and/or family;
(3) Time frames for achieving proposed outcomes; and
(4) Evaluation of treatment progress to include timely reviews and
updates as appropriate of the patient's treatment plan that reflects
alterations in the treatment regimen, the measurable goals/objectives,
and the level of care required for each of the patient's problems, and
explanations of any failure to achieve the treatment goals/objectives.
(D) Unless therapeutically contraindicated, the family and/or
guardian must actively participate in the continuing care of the patient
either through direct involvement at the facility or geographically
distant family therapy. (In the latter case, the treatment center must
document that there has been collaboration with the family and/or
guardian in all reviews.)
(5) Extent of institutional benefits--(i) Inpatient room
accommodations--(A) Semiprivate. The allowable costs for room and board
furnished an individual patient are payable for semiprivate
accommodations in a hospital or other authorized institution, subject to
appropriate cost-sharing provisions (refer to paragraph (f) of this
section). A semiprivate accommodation is a room containing at least two
beds. Therefore, if a room publicly is designated by the institution as
a semiprivate accommodation and contains multiple beds, it qualifies as
semiprivate for the purpose of CHAMPUS.
(B) Private. A room with one bed that is designated as a private
room by the hospital or other authorized institutional provider. The
allowable cost of a private room accommodation is covered only under the
following conditions:
(1) When its use is required medically and when the attending
physician certifies that a private room is necessary medically for the
proper care and treatment of a patient; or
(2) When a patient's medical condition requires isolation; or
(3) When a patient (in need of immediate inpatient care but not
requiring a private room) is admitted to a hospital or other authorized
institution that has semiprivate accommodations, but at the time of
admission, such accommodations are occupied; or
(4) When a patient is admitted to an acute care hospital (general or
special) without semiprivate rooms.
(C) Duration of private room stay. The allowable cost of private
accommodations is covered under the circumstances described in paragraph
(b)(5)(i)(B) of this section until the patient's condition no longer
requires the private room for medical reasons or medical isolation; or,
in the case of the patient not requiring a private room, when a
semiprivate accommodation becomes available; or, in the case of an acute
care hospital (general or special) which does not have semiprivate
[[Page 115]]
rooms, for the duration of an otherwise covered inpatient stay.
(D) Hospital (except an acute care hospital, general or special) or
other authorized institutional provider without semiprivate
accommodations. When a beneficiary is admitted to a hospital (except an
acute care hospital, general or special) or other institution that has
no semiprivate accommodations, for any inpatient day when the patient
qualifies for use of a private room (as set forth in paragraphs
(b)(5)(i)(B) (1) and (2) of this section) the allowable cost of private
accommodations is covered. For any inpatient day in such a hospital or
other authorized institution when the patient does not require medically
the private room, the allowable cost of semiprivate accommodations is
covered, such allowable costs to be determined by the Director,
OCHAMPUS, or a designee.
(ii) General staff nursing services. General staff nursing services
cover all nursing care (other than that provided by private duty nurses)
including, but not limited to, general duty nursing, emergency room
nursing, recovery room nursing, intensive nursing care, and group
nursing arrangements. Only nursing services provided by nursing
personnel on the payroll of the hospital or other authorized institution
are eligible under paragraph (b) of this section. If a nurse who is not
on the payroll of the hospital or other authorized institution is called
in specifically to care for a single patient (individual nursing) or
more than one patient (group nursing), whether the patient is billed for
the nursing services directly or through the hospital or other
institution, such services constitute private duty (special) nursing
services and are not eligible for benefits under this paragraph (the
provisions of paragraph (c)(2)(xv) of this section would apply).
(iii) ICU. An ICU is a special segregated unit of a hospital in
which patients are concentrated, by reason of serious illness, usually
without regard to diagnosis. Special lifesaving techniques and equipment
are available regularly and immediately within the unit, and patients
are under continuous observation by a nursing staff specially trained
and selected for the care of this type of patient. The unit is
maintained on a continuing, rather than an intermittent or temporary,
basis. It is not a postoperative recovery room or a postanesthesia room.
In some large or highly specialized hospitals, the ICUs may be refined
further for special purposes, such as for respiratory conditions,
cardiac surgery, coronary care, burn care, or neurosurgery. For purposes
of CHAMPUS, these specialized units would be considered ICUs if they
otherwise conformed to the definition of an ICU.
(iv) Treatment rooms. Standard treatment rooms include emergency
rooms, operating rooms, recovery rooms, special treatment rooms, and
hyperbaric chambers and all related necessary medical staff and
equipment. To be recognized for purposes of CHAMPUS, treatment rooms
must be so designated and maintained by the hospital or other authorized
institutions on a continuing basis. A treatment room set up on an
intermittent or temporary basis would not be so recognized.
(v) Drugs and medicines. Drugs and medicines are included as a
supply of a hospital or other authorized institution only under the
following conditions:
(A) They represent a cost to the facility rendering treatment;
(B) They are furnished to a patient receiving treatment, and are
related directly to that treatment; and
(C) They are ordinarily furnished by the facility for the care and
treatment of inpatients.
(vi) Durable medical equipment, medical supplies, and dressings.
Durable medical equipment, medical supplies, and dressings are included
as a supply of a hospital or other authorized institution only under the
following conditions:
(A) If ordinarily furnished by the facility for the care and
treatment of patients; and
(B) If specifically related to, and in connection with, the
condition for which the patient is being treated; and
(C) If ordinarily furnished to a patient for use in the hospital or
other authorized institution (except in the case of a temporary or
disposable item); and
(D) Use of durable medical equipment is limited to those items
provided
[[Page 116]]
while the patient is an inpatient. If such equipment is provided for use
on an outpatient basis, the provisions of paragraph (d) of this section
apply.
(vii) Transitional use items. Under certain circumstances, a
temporary or disposable item may be provided for use beyond an inpatient
stay, when such item is necessary medically to permit or facilitate the
patient's departure from the hospital or other authorized institution,
or which may be required until such time as the patient can obtain a
continuing supply; or it would be unreasonable or impossible from a
medical standpoint to discontinue the patient's use of the item at the
time of termination of his or her stay as an inpatient.
(viii) Anesthetics and oxygen. Anesthetics and oxygen and their
administration are considered a service or supply if furnished by the
hospital or other authorized institution, or by others under
arrangements made by the facility under which the billing for such
services is made through the facility.
(6) Inpatient mental health services. Inpatient mental health
services are those services furnished by institutional and professional
providers for treatment of a nervous or mental disorder (as defined in
Sec. 199.2) to a patient admitted to a CHAMPUS-authorized acute care
general hospital; a psychiatric hospital; or, unless otherwise exempted,
a special institutional provider.
(i) Criteria for determining medical or psychological necessity. In
determining the medical or psychological necessity of acute inpatient
mental health services, the evaluation conducted by the Director,
OCHAMPUS (or designee) shall consider the appropriate level of care for
the patient, the intensity of services required by the patient, and the
availability of that care. The purpose of such acute inpatient care is
to stabilize a life-threatening or severely disabling condition within
the context of a brief, intensive model of inpatient care in order to
permit management of the patient's condition at a less intensive level
of care. Such care is appropriate only if the patient requires services
of an intensity and nature that are generally recognized as being
effectively and safely provided only in an acute inpatient hospital
setting. In addition to the criteria set forth in this paragraph (b)(6)
of this section, additional evaluation standards, consistent with such
criteria, may be adopted by the Director, OCHAMPUS (or designee). Acute
inpatient care shall not be considered necessary unless the patient
needs to be observed and assessed on a 24-hour basis by skilled nursing
staff, and/or requires continued intervention by a multidisciplinary
treatment team; and in addition, at least one of the following criteria
is determined to be met:
(A) Patient poses a serious risk of harm to self and/or others.
(B) Patient is in need of high dosage, intensive medication or
somatic and/or psychological treatment, with potentially serious side
effects.
(C) Patient has acute disturbances of mood, behavior, or thinking.
(ii) Emergency admissions. Admission to an acute inpatient hospital
setting may be on an emergency or on a non-emergency basis. In order for
an admission to qualify as an emergency, the following criteria, in
addition to those in paragraph (b)(6)(i) of this section, must be met:
(A) The patient must be at immediate risk of serious harm to self
and or others based on a psychiatric evaluation performed by a physician
(or other qualified mental health professional with hospital admission
authority); and
(B) The patient requires immediate continuous skilled observation
and treatment at the acute psychiatric level of care.
(iii)-(iv)[Reserved]
(7) Emergency inpatient hospital services. In the case of a medical
emergency, benefits can be extended for medically necessary inpatient
services and supplies provided to a beneficiary by a hospital, including
hospitals that do not meet CHAMPUS standards or comply with the
nondiscrimination requirements under title VI of the Civil Rights Act
and other nondiscrimination laws applicable to recipients of federal
financial assistance, or satisfy other conditions herein set forth. In a
medical emergency, medically necessary inpatient services and supplies
[[Page 117]]
are those that are necessary to prevent the death or serious impairment
of the health of the patient, and that, because of the threat to the
life or health of the patient, necessitate, the use of the most
accessible hospital available and equipped to furnish such services.
Emergency services are covered when medically necessary for the active
medical treatment of the acute phases of substance withdrawal
(detoxification), for stabilization and for treatment of medical
complications for substance use disorder. The availability of benefits
depends upon the following three separate findings and continues only as
long as the emergency exists, as determined by medical review. If the
case qualified as an emergency at the time of admission to an
unauthorized institutional provider and the emergency subsequently is
determined no longer to exist, benefits will be extended up through the
date of notice to the beneficiary and provider that CHAMPUS benefits no
longer are payable in that hospital.
(i) Existence of medical emergency. A determination that a medical
emergency existed with regard to the patient's condition;
(ii) Immediate admission required. A determination that the
condition causing the medical emergency required immediate admission to
a hospital to provide the emergency care; and
(iii) Closest hospital utilized. A determination that diagnosis or
treatment was received at the most accessible (closest) hospital
available and equipped to furnish the medically necessary care.
(8) Residential treatment for substance use disorder--(i) In
general. Rehabilitative care, to include withdrawal management
(detoxification), in an inpatient residential setting of an authorized
hospital or substance use disorder rehabilitative facility, whether
free-standing or hospital-based, is covered on a residential basis. The
medical necessity for the management of withdrawal symptoms must be
documented. Any withdrawal management (detoxification) services provided
by the substance use disorder rehabilitation facility must be under
general medical supervision.
(ii) Criteria for determining medical or psychological necessity of
residential treatment for substance use disorder. Residential treatment
for substance use disorder will be considered necessary only if all of
the following conditions are present:
(A) The patient has been diagnosed with a substance use disorder.
(B) The patient is experiencing withdrawal symptoms or potential
symptoms severe enough to require inpatient care and physician
management, or who have less severe symptoms that require 24-hour
inpatient monitoring or the patient's addiction-related symptoms, or
concomitant physical and emotional/behavioral problems reflect
persistent dysfunction in several major life areas.
(iii) Services and supplies. The following services and supplies are
included in the per diem rate approved for an authorized residential
treatment for substance use disorder.
(A) Room and board. Includes use of the residential treatment
program facilities such as food service (including special diets),
laundry services, supervised therapeutically constructed recreational
and social activities, and other general services as considered
appropriate by the Director, or a designee.
(B) Patient assessment. Includes the assessment of each individual
accepted by the facility, and must, at a minimum, consist of a physical
examination; psychiatric examination; psychological assessment;
assessment of physiological, biological and cognitive processes; case
management assessment; developmental assessment; family history and
assessment; social history and assessment; educational or vocational
history and assessment; environmental assessment; and recreational/
activities assessment. Assessments conducted within 30 days prior to
admission to a residential treatment program for substance use disorder
(SUD) may be used if approved and deemed adequate to permit treatment
planning by the residential treatment program for SUD.
(C) Psychological testing. Psychological testing is provided based
on medical and psychological necessity.
[[Page 118]]
(D) Treatment services. All services, supplies, equipment and space
necessary to fulfill the requirements of each patient's individualized
diagnosis and treatment plan. All mental health services must be
provided by a TRICARE authorized individual professional provider of
mental health services. [Exception: Residential treatment programs that
employ individuals with master's or doctoral level degrees in a mental
health discipline who do not meet the licensure, certification, and
experience requirements for a qualified mental health provider but are
actively working toward licensure or certification may provide services
within the all-inclusive per diem rate, but such individuals must work
under the clinical supervision of a fully qualified mental health
provider employed by the facility.]
(iv) Case management required. The facility must provide case
management that helps to assure arrangement of community based support
services, referral of suspected child or elder abuse or domestic
violence to the appropriate state agencies, and effective after care
arrangements, at a minimum.
(v) Professional mental health benefits. Professional mental health
benefits are billed separately from the residential treatment program
per diem rate only when rendered by an attending, TRICARE authorized
mental health professional who is not an employee of, or under contract
with, the program for purposes of providing clinical patient care.
(vi) Non-mental health related medical services. Separate billing
will be allowed for otherwise covered non-mental health related
services.
(9) Psychiatric and substance use disorder partial hospitalization
services--(i) In general. Partial hospitalization services are those
services furnished by a TRICARE authorized partial hospitalization
program and authorized mental health providers for the active treatment
of a mental disorder. All services must follow a medical model and vest
patient care under the general direction of a licensed TRICARE
authorized physician employed by the partial hospitalization program to
ensure medication and physical needs of all the patients are considered.
The primary or attending provider must be a TRICARE authorized mental
health provider (see paragraph (c)(3)(ix) of this section), operating
within the scope of his/her license. These categories include
physicians, clinical psychologists, certified psychiatric nurse
specialists, clinical social workers, marriage and family counselors,
TRICARE certified mental health counselors, pastoral counselors, and
supervised mental health counselors. All categories practice
independently except pastoral counselors and supervised mental health
counselors who must practice under the supervision of TRICARE authorized
physicians. Partial hospitalization services and interventions are
provided at a high degree of intensity and restrictiveness of care, with
medical supervision and medication management. Partial hospitalization
services are covered as a basic program benefit only if they are
provided in accordance with paragraph (b)(9) of this section. Such
programs must enter into a participation agreement with TRICARE; and be
accredited and in substantial compliance with the specified standards of
an accreditation organization approved by the Director.
(ii) Criteria for determining medical or psychological necessity of
psychiatric and SUD partial hospitalization services. Partial
hospitalization services will be considered necessary only if all of the
following conditions are present:
(A) The patient is suffering significant impairment from a mental
disorder (as defined in Sec. 199.2) which interferes with age
appropriate functioning or the patient is in need of rehabilitative
services for the management of withdrawal symptoms from alcohol,
sedative-hypnotics, opioids, or stimulants that require medically-
monitored ambulatory detoxification, with direct access to medical
services and clinically intensive programming of rehabilitative care
based on individual treatment plans.
(B) The patient is unable to maintain himself or herself in the
community, with appropriate support, at a sufficient level of
functioning to permit an adequate course of therapy exclusively on an
outpatient basis, to include outpatient treatment program, outpatient
office visits, or intensive outpatient
[[Page 119]]
services (but is able, with appropriate support, to maintain a basic
level of functioning to permit partial hospitalization services and
presents no substantial imminent risk of harm to self or others). These
patients require medical support; however, they do not require a 24-hour
medical environment.
(C) The patient is in need of crisis stabilization, acute symptom
reduction, treatment of partially stabilized mental health disorders, or
services as a transition from an inpatient program.
(D) The admission into the partial hospitalization program is based
on the development of an individualized diagnosis and treatment plan
expected to be effective for that patient and permit treatment at a less
intensive level.
(iii) Services and supplies. The following services and supplies are
included in the per diem rate approved for an authorized partial
hospitalization program:
(A) Board. Includes use of the partial hospital facilities such as
food service, supervised therapeutically constructed recreational and
social activities, and other general services as considered appropriate
by the Director, or a designee.
(B) Patient assessment. Includes the assessment of each individual
accepted by the facility, and must, at a minimum, consist of a physical
examination; psychiatric examination; psychological assessment;
assessment of physiological, biological and cognitive processes; case
management assessment; developmental assessment; family history and
assessment; social history and assessment; educational or vocational
history and assessment; environmental assessment; and recreational/
activities assessment. Assessments conducted within 30 days prior to
admission to a partial program may be used if approved and deemed
adequate to permit treatment planning by the partial hospital program.
(C) Psychological testing. Treatment services. All services,
supplies, equipment and space necessary to fulfill the requirements of
each patient's individualized diagnosis and treatment plan. All mental
health services must be provided by a TRICARE authorized individual
professional provider of mental health services. [Exception: partial
hospitalization programs that employ individuals with master's or
doctoral level degrees in a mental health discipline who do not meet the
licensure, certification, and experience requirements for a qualified
mental health provider but are actively working toward licensure or
certification, may provide services within the all-inclusive per diem
rate, but such individuals must work under the clinical supervision of a
fully qualified mental health provider employed by the partial
hospitalization program.]
(iv) Case management required. The facility must provide case
management that helps to assure the patient appropriate living
arrangements after treatment hours, transportation to and from the
facility, arrangement of community based support services, referral of
suspected child or elder abuse or domestic violence to the appropriate
state agencies, and effective after care arrangements, at a minimum.
(v) Educational services required. Programs treating children and
adolescents must ensure the provision of a state certified educational
component which assures that patients do not fall behind in educational
placement while receiving partial hospital treatment. CHAMPUS will not
fund the cost of educational services separately from the per diem rate.
The hours devoted to education do not count toward the therapeutic
intensive outpatient program or full day program.
(vi) Family therapy required. The facility must ensure the provision
of an active family therapy treatment component, which assures that each
patient and family participate at least weekly in family therapy
provided by the institution and rendered by a TRICARE authorized
individual professional provider of mental health services. There is no
acceptable substitute for family therapy. An exception to this
requirement may be granted on a case-by-case basis by the Clinical
Director, or designee, only if family therapy is clinically
contraindicated.
(vii) Professional mental health benefits. Professional mental
health benefits are billed separately from the partial hospitalization
per diem rate only when rendered by an attending,
[[Page 120]]
TRICARE authorized mental health professional who is not an employee of,
or under contract with, the partial hospitalization program for purposes
of providing clinical patient care.
(viii) Non-mental health related medical services. Separate billing
will be allowed for otherwise covered, non-mental health related medical
services.
(10) Intensive psychiatric and substance use disorder outpatient
services--(i) In general. Intensive outpatient services are those
services furnished by a TRICARE authorized intensive outpatient program
and qualified mental health provider(s) for the active treatment of a
mental disorder, to include substance use disorder.
(ii) Criteria for determining medical or psychological necessity of
intensive outpatient services. In determining the medical or
psychological necessity of intensive outpatient services, the evaluation
conducted by the Director, or designee, shall consider the appropriate
level of care, based on the patient's clinical needs and characteristics
matched to a service's structure and intensity. In addition to the
criteria set for this paragraph (b)(10) of this section, additional
evaluation standards, consistent with such criteria, may be adopted by
the Director, or designee. Treatment in an intensive outpatient setting
shall not be considered necessary unless the patient requires care that
is more intensive than an outpatient treatment program or outpatient
office visits and less intensive than inpatient psychiatric care or a
partial hospital program. Intensive outpatient services will be
considered necessary only if the following conditions are present:
(A) The patient is suffering significant impairment from a mental
disorder, to include a substance use disorder (as defined in Sec.
199.2), which interferes with age appropriate functioning. Patients
receiving a higher intensity of treatment may be experiencing moderate
to severe instability, exacerbation of severe/persistent disorder, or
dangerousness with some risk of confinement. Patients receiving a lower
intensity of treatment may be experiencing mild instability with limited
dangerousness and low risk for confinement.
(B) The patient is unable to maintain himself or herself in the
community, with appropriate support, at a sufficient level of
functioning to permit an adequate course of therapy exclusively in an
outpatient treatment program or an outpatient office basis (but is able,
with appropriate support, to maintain a basic level of functioning to
permit a level of intensive outpatient treatment and presents no
substantial imminent risk of harm to self or others).
(C) The patient is in need of stabilization, symptom reduction, and
prevention of relapse for chronic mental illness. The goal of
maintenance of his or her functioning within the community cannot be met
by outpatient office visits, but requires active treatment in a stable,
staff-supported environment;
(D) The admission into the intensive outpatient program is based on
the development of an individualized diagnosis and treatment plan
expected to be effective for that patient and permit treatment at a less
intensive level.
(iii) Services and supplies. The following services and supplies are
included in the per diem rate approved for an authorized intensive
outpatient program.
(A) Patient assessment. Includes the assessment of each individual
accepted by the facility.
(B) Treatment services. All services, supplies, equipment, and space
necessary to fulfill the requirements of each patient's individualized
diagnosis and treatment plan. All mental health services must be
provided by a TRICARE authorized individual qualified mental health
provider. [Exception: Intensive outpatient programs that employ
individuals with master's or doctoral level degrees in a mental health
discipline who do not meet the licensure, certification, and experience
requirements for a qualified mental health provider but are actively
working toward licensure or certification, may provide services within
the all-inclusive per diem rate but such individuals must work under the
clinical supervision of a fully qualified mental health provider
employed by the facility.]
[[Page 121]]
(iv) Case management. When appropriate, and with the consent of the
person served, the facility should coordinate the care, treatment, or
services, including providing coordinated treatment with other services.
(v) Professional mental health benefits. Professional mental health
benefits are billed separately from the intensive outpatient per diem
rate only when rendered by an attending, TRICARE authorized qualified
mental health provider who is not an employee of, or under contract
with, the program for purposes of providing clinical patient care.
(vi) Non-mental health related medical services. Separate billing
will be allowed for otherwise covered, non-mental health related medical
services.
(11) Opioid treatment programs--(i) In general. Outpatient treatment
and management of withdrawal symptoms for substance use disorder
provided at a TRICARE authorized opioid treatment program are covered.
If the patient is medically in need of management of withdrawal
symptoms, but does not require the personnel or facilities of a general
hospital setting, services for management of withdrawal symptoms are
covered. The medical necessity for the management of withdrawal symptoms
must be documented. Any services to manage withdrawal symptoms provided
by the opioid treatment program must be under general medical
supervision.
(ii) Criteria for determining medical or psychological necessity of
an opioid treatment program are set forth in 42 CFR part 8.
(iii) Services and supplies. The following services and supplies are
included in the reimbursement approved for an authorized opioid
treatment program.
(A) Patient assessment. Includes the assessment of each individual
accepted by the facility.
(B) Treatment services. All services, supplies, equipment, and space
necessary to fulfill the requirements of each patient's individualized
diagnosis and treatment plan. All mental health services must be
provided by a TRICARE authorized individual professional provider of
mental health services. [Exception: opioid treatment programs that
employ individuals with degrees in a mental health discipline who do not
meet the licensure, certification, and experience requirements for a
qualified mental health provider but work under the clinical supervision
of a fully qualified mental health provider employed by the facility.]
(iv) Case management. Care, treatment, or services should be
coordinated among providers and between settings, independent of whether
they are provided directly by the organization or by an organization or
by an outside source, so that the individual's needs are addressed in a
seamless, synchronized, and timely manner.
(c) Professional services benefit--(1) General. Benefits may be
extended for those covered services described in paragraph (c) of this
section that are provided in accordance with good medical practice and
established standards of quality by physicians or other authorized
individual professional providers, as set forth in Sec. 199.6 of this
part. Such benefits are subject to all applicable definitions,
conditions, exceptions, limitations, or exclusions as maybe otherwise
set forth in this or other Sections of this part. Except as otherwise
specifically authorized, to be considered for benefits under paragraph
(c) of this section, the described services must be rendered by a
physician, or prescribed, ordered, and referred medically by a physician
to other authorized individual professional providers. Further, except
under specifically defined circumstances, there should be an attending
physician in any episode of care. (For example, certain services of a
clinical psychologist are exempt from this requirement. For these
exceptions, refer to Sec. 199.6.)
(i) Billing practices. To be considered for benefits under paragraph
(c) of this section, covered professional services must be performed
personally by the physician or other authorized individual professional
provider, who is other than a salaried or contractual staff member of a
hospital or other authorized institution, and who ordinarily and
customarily bills on a fee-for-service basis for professional services
rendered. Such billings must be
[[Page 122]]
itemized fully and be sufficiently descriptive to permit CHAMPUS to
determine whether benefits are authorized by this part. See paragraph
(c)(3)(xiii) of this section for the requirements regarding the special
circumstances for teaching physicians. For continuing professional care,
claims should be submitted to the appropriate CHAMPUS fiscal
intermediary at least every 30 days either by the beneficiary or
sponsor, or directly by the physician or other authorized individual
professional provider on behalf of a beneficiary (refer to Sec. 199.7).
(ii) Services must be related. Covered professional services must be
rendered in connection with and directly related to a covered diagnosis
or definitive set of symptoms requiring medically necessary treatment.
(iii) Telehealth services. Health care services covered by TRICARE
and provided through the use of telehealth modalities are covered
services to the same extent as if provided in person at the location of
the patient if those services are medically necessary and appropriate
for such modalities. The Director will establish special procedures for
payment for such services. Additionally, where appropriate, in order to
incentive the use of telehealth services, the Director may modify the
otherwise applicable beneficiary cost-sharing requirements in paragraph
(f) of this section which otherwise apply.
(2) Covered services of physicians and other authorized profession
providers.
(i) Surgery. Surgery means operative procedures, including related
preoperative and postoperative care; reduction of fractures and
dislocations; injection and needling procedures of the joints; laser
surgery of the eye; and the following procedures:
Bronchoscopy
Laryngoscopy
Thoracoscopy
Catheterization of the heart
Arteriograph thoracic lumbar
Esophagoscopy
Gastroscopy
Proctoscopy
Sigmoidoscopy
Peritoneoscopy
Cystoscopy
Colonscopy
Upper G.I. panendoscopy
Encephalograph
Myelography
Discography
Visualization of intracranial aneurysm by intracarotid injection of dye,
with exposure of carotid artery, unilateral
Ventriculography
Insufflation of uterus and fallopian tubes for determination of tubal
patency (Rubin's test of injection of radiopaque medium or for dilation)
Introduction of opaque media into the cranial arterial system,
preliminary to cerebral arteriography, or into vertebral and subclavian
systems
Intraspinal introduction of air preliminary to pneumoencephalography
Intraspinal introduction of opaque media preliminary to myelography
Intraventricular introduction of air preliminary to ventriculography
Note: The Director, OCHAMPUS, or a designee, shall determine such
additional procedures that may fall within the intent of this definition
of ``surgery.''
(ii) Surgical assistance.
(iii) Inpatient medical services.
(iv) Outpatient medical services.
(v) Psychiatric services.
(vi) Consultation services.
(vii) Anesthesia services.
(viii) Radiation therapy services.
(ix) X-ray services.
(x) Laboratory and pathological services.
(xi) Physical medicine services or physiatry services.
(xii) Maternity care.
(xiii) Well-child care.
(xiv) Other medical care. Other medical care includes, but is not
limited to, hemodialysis, inhalation therapy, shock therapy, and
chemotherapy. The Director, OCHAMPUS, or a designee, shall determine
those additional medical services for which benefits may be extended
under this paragraph.
Note: A separate professional charge for the oral administration of
approved antineoplastic drugs is not covered.
(xv) [Reserved]
(xvi) Routine eye examinations. Coverage for routine eye
examinations is limited to dependents of active duty members, to one
examination per calendar year per person, and to services rendered on or
after October 1, 1984, except as provided under paragraph (c)(3)(xi) of
this section.
(3) Extent of professional benefits--
(i) Multiple Surgery. In cases of multiple surgical procedures
performed
[[Page 123]]
during the same operative session, benefits shall be extended as
follows:
(A) One hundred (100) percent of the CHAMPUS-determined allowable
charge for the major surgical procedure (the procedure for which the
greatest amount is payable under the applicable reimbursement method);
and
(B) Fifty (50) percent of the CHAMPUS-determined allowable charge
for each of the other surgical procedures;
(C) Except that:
(1) If the multiple surgical procedures include an incidental
procedure, no benefits shall be allowed for the incidental procedure.
(2) If the multiple surgical procedures involve specific procedures
identified by the Director, OCHAMPUS, benefits shall be limited as set
forth in CHAMPUS instructions.
(ii) Different types of inpatient care, concurrent. If a beneficiary
receives inpatient medical care during the same admission in which he or
she also receives surgical care or maternity care, the beneficiary shall
be entitled to the greater of the CHAMPUS-determined allowable charge
for either the inpatient medical care or surgical or maternity care
received, as the case may be, but not both; except that the provisions
of this paragraph (c)(3)(ii) shall not apply if such inpatient medical
care is for a diagnosed condition requiring inpatient medical care not
related to the condition for which surgical care or maternity care is
received, and is received from a physician other than the one rendering
the surgical care or maternity care.
Note: This provision is not meant to imply that when extra time and
special effort are required due to postsurgical or postdelivery
complications, the attending physician may not request special
consideration for a higher than usual charge.
(iii) Need for surgical assistance. Surgical assistance is payable
only when the complexity of the procedure warrants a surgical assistant
(other than the surgical nurse or other such operating room personnel),
subject to utilization review. In order for benefits to be extended for
surgical assistance service, the primary surgeon may be required to
certify in writing to the nonavailability of a qualified intern,
resident, or other house physician. When a claim is received for a
surgical assistant involving the following circumstances, special review
is required to ascertain whether the surgical assistance service meets
the medical necessity and other requirements of paragraph (c) of this
section.
(A) If the surgical assistance occurred in a hospital that has a
residency program in a specialty appropriate to the surgery;
(B) If the surgery was performed by a team of surgeons;
(C) If there were multiple surgical assistants; or
(D) If the surgical assistant was a partner of or from the same
group of practicing physicians as the attending surgeon.
(iv) Aftercare following surgery. Except for those diagnostic
procedures classified as surgery in paragraph (c) of this section, and
injection and needling procedures involving the joints, the benefit
payments made for surgery (regardless of the setting in which it is
rendered) include normal aftercare, whether the aftercare is billed for
by the physician or other authorized individual professional provider on
a global, all-inclusive basis, or billed for separately.
(v) Cast and sutures, removal. The benefit payments made for the
application of a cast or of sutures normally covers the postoperative
care including the removal of the cast or sutures. When the application
is made in one geographical location and the removal of the cast or
sutures must be done in another geographical location, a separate
benefit payment may be provided for the removal. The intent of this
provision is to provide a separate benefit only when it is impracticable
for the beneficiary to use the services of the provider that applied the
cast originally. Benefits are not available for the services of a second
provider if those services reasonably could have been rendered by the
individual professional provider who applied the cast or sutures
initially.
(vi) Inpatient care, concurrent. Concurrent inpatient care by more
than one individual professional provider is covered if required because
of the severity and complexity of the beneficiary's
[[Page 124]]
condition or because the beneficiary has multiple conditions that
require treatment by providers of different specialties. Any claim for
concurrent care must be reviewed before extending benefits in order to
ascertain the condition of the beneficiary at the time the concurrent
care was rendered. In the absence of such determination, benefits are
payable only for inpatient care rendered by one attending physician or
other authorized individual professional provider.
(vii) Consultants who become the attending surgeon. A consultation
performed within 3 days of surgery by the attending physician is
considered a preoperative examination. Preoperative examinations are an
integral part of the surgery and a separate benefit is not payable for
the consultation. If more than 3 days elapse between the consultation
and surgery (performed by the same physician), benefits may be extended
for the consultation, subject to review.
(viii) Anesthesia administered by the attending physician. A
separate benefit is not payable for anesthesia administered by the
attending physician (surgeon or obstetrician) or dentist, or by the
surgical, obstetrical, or dental assistant.
(ix) Treatment of mental disorders, to include substance use
disorder. In order to qualify for CHAMPUS mental health benefits, the
patient must be diagnosed by a TRICARE authorized qualified mental
health professional practicing within the scope of his or her license to
be suffering from a mental disorder, as defined in Sec. 199.2
(A) Covered diagnostic and therapeutic services. CHAMPUS benefits
are payable for the following services when rendered in the diagnosis or
treatment of a covered mental disorder by a TRICARE authorized qualified
mental health provider practicing within the scope of his or her
license. Qualified mental health providers are: Psychiatrists or other
physicians; clinical psychologists, certified psychiatric nurse
specialists, certified clinical social workers, certified marriage and
family therapists, TRICARE certified mental health counselors, pastoral
counselors under a physician's supervision, and supervised mental health
counselors under a physician's supervision.
(1) Individual psychotherapy, adult or child. A covered individual
psychotherapy session is no more than 60 minutes in length. An
individual psychotherapy session of up to 120 minutes in length is
payable for crisis intervention.
(2) Group psychotherapy. A covered group psychotherapy session is no
more than 90 minutes in length.
(3) Family or conjoint psychotherapy. A covered family or conjoint
psychotherapy session is no more than 90 minutes in length. A family or
conjoint psychotherapy session of up to 180 minutes in length is payable
for crisis intervention.
(4) Psychoanalysis. Psychoanalysis is covered when provided by a
graduate or candidate of a psychoanalytic training institution
recognized by the American Psychoanalytic Association and when
preauthorized by the Director, or a designee.
(5) Psychological testing and assessment. Psychological testing and
assessment is covered when medically or psychologically necessary.
Psychological testing and assessment performed as part of an assessment
for academic placement are not covered.
(6) Administration of psychotropic drugs. When prescribed by an
authorized provider qualified by licensure to prescribe drugs.
(7) Electroconvulsive treatment. When provided in accordance with
guidelines issued by the Director.
(8) Collateral visits. Covered collateral visits are those that are
medically or psychologically necessary for the treatment of the patient.
(9) Medication assisted treatment. Medication assisted treatment,
combining pharmacotherapy and holistic care, to include provision in
office-based opioid treatment by an authorized TRICARE provider, is
covered. The practice of an individual physician in office-based
treatment is regulated by the Department of Health and Human Services'
42 CFR 8.12,the Center for Substance Abuse Treatment (CSAT), and the
Drug Enforcement Administration (DEA), along with individual state and
local regulations.
[[Page 125]]
(B) Therapeutic settings--(1) Outpatient psychotherapy. Outpatient
psychotherapy generally is covered for individual, family, conjoint,
collateral, and/or group sessions.
(2) Inpatient psychotherapy. Coverage of inpatient psychotherapy is
based on medical or psychological necessity for the services identified
in the patient's treatment plan.
(C) Covered ancillary therapies. Includes art, music, dance,
occupational, and other ancillary therapies, when included by the
attending provider in an approved inpatient, SUDRF, residential
treatment, partial hospital, or intensive outpatient program treatment
plan and under the clinical supervision of a qualified mental health
professional. These ancillary therapies are not separately reimbursed
professional services but are included within the institutional
reimbursement.
(D) Review of claims for treatment of mental disorder. The Director
shall establish and maintain procedures for review, including
professional review, of the services provided for the treatment of
mental disorders.
(x) Physical and occupational therapy. Assessment and treatment
services of a CHAMPUS-authorized physical or occupational therapist may
be cost-shared when:
(A) The services are prescribed and monitored by a physician,
certified physician assistant or certified nurse practitioner.
(B) The purpose of the prescription is to reduce the disabling
effects of an illness, injury, or neuromuscular disorder; and
(C) The prescribed treatment increases, stabilizes, or slows the
deterioration of the beneficiary's ability to perform specified
purposeful activity in the manner, or within the range considered
normal, for a human being.
(xi) Well-child care. Benefits routinely are covered for well-child
care from birth to under six years of age. These periodic health
examinations are designed for prevention, early detection and treatment
of disease and consist of screening procedures, immunizations and risk
counseling.
(A) The following services are covered when required as a part of
the specific well-child care program and when rendered by the attending
pediatrician, family physician, certified nurse practitioner, or
certified physician assistant.
(1) Newborn examination, heredity and metabolic screening, and
newborn circumcision.
(2) Periodic health supervision visits, in accordance with American
Academy of Pediatrics (AAP) guidelines, intended to promote the optimal
health for infants and children to include the following services:
(i) History and physical examination and mental health assessment.
(ii) Vision, hearing, and dental screening.
(iii) Developmental appraisal to include body measurement.
(iv) Immunizations as recommenced by the Centers for Disease Control
(CDC).
(v) Pediatric risk assessment for lead exposure and blood lead level
test.
(vi) Tuberculosis screening.
(vii) Blood pressure screening.
(viii) Measurement of hemoglobin and hematocrit for anemia.
(ix) Urinalysis.
(x) Health guidance and counseling, including breastfeeding and
nutrition counseling.
(B) Additional services or visits required because of specific
findings or because the particular circumstances of the individual case
are covered if medically necessary and otherwise authorized for benefits
under CHAMPUS.
(C) The Deputy Assistant Secretary of Defense, Health Services
Financing, will determine when such services are separately reimbursable
apart from the health supervision visit.
(xii) [Reserved]
(xiii) Physicians in a teaching setting.
(A) Teaching physicians.
(1) General. The services of teaching physicians may be reimbursed
on an allowable charge basis only when the teaching physician has
established an attending physician relationship between the teaching
physician and the patient or when the teaching physician provides
distinct, identifiable, personal services (e.g., services rendered as a
consultant, assistant surgeon, etc.). Attending physician services may
include both direct patient care services or direct supervision of care
provided
[[Page 126]]
by a physician in training. In order to be considered an attending
physician, the teaching physician must:
(i) Review the patient's history and the record of examinations and
tests in the institution, and make frequent reviews of the patient's
progress; and
(ii) Personally examine the patient; and
(iiii) Confirm or revise the diagnosis and determine the course of
treatment to be followed; and
(iv) Either perform the physician's services required by the patient
or supervise the treatment so as to assure that appropriate services are
provided by physicians in training and that the care meets a proper
quality level; and
(v) Be present and ready to perform any service performed by an
attending physician in a nonteaching setting when a major surgical
procedure or a complex or dangerous medical procedure is performed; and
(vi) Be personally responsible for the patient's care, at least
throughout the period of hospitalization.
(2) Direct supervision by an attending physician of care provided by
physicians in training. Payment on the basis of allowable charges may be
made for the professional services rendered to a beneficiary by his/her
attending physician when the attending physician provides personal and
identifiable direction to physicians in training who are participating
in the care of the patient. It is not necessary that the attending
physician be personally present for all services, but the attending
physician must be on the provider's premises and available to provide
immediate personal assistance and direction if needed.
(3) Individual, personal services. A teaching physician may be
reimbursed on an allowable charge basis for any individual, identifiable
service rendered to a CHAMPUS beneficiary, so long as the service is a
covered service and is normally reimbursed separately, and so long as
the patient records substantiate the service.
(4) Who may bill. The services of a teaching physician must be
billed by the institutional provider when the physician is employed by
the provider or a related entity or under a contract which provides for
payment to the physician by the provider or a related entity. Where the
teaching physician has no relationship with the provider (except for
standard physician privileges to admit patients) and generally treats
patients on a fee-for-service basis in the private sector, the teaching
physician may submit claims under his/her own provider number.
(B) Physicians in training. Physicians in training in an approved
teaching program are considered to be ``students'' and may not be
reimbursed directly by CHAMPUS for services rendered to a beneficiary
when their services are provided as part of their employment (either
salaried or contractual) by a hospital or other institutional provider.
Services of physicians in training may be reimbursed on an allowable
charge basis only if:
(1) The physician in training is fully licensed to practice medicine
by the state in which the services are performed, and
(2) The services are rendered outside the scope and requirements of
the approved training program to which the physician in training is
assigned.
(d) Other benefits--(1) General. Benefits may be extended for the
allowable charge of those other covered services and supplies described
in paragraph (d) of this section, which are provided in accordance with
good medical practice and established standards of quality by those
other authorized providers described in Sec. 199.6. Such benefits are
subject to all applicable definitions, conditions, limitations, or
exclusions as otherwise may be set forth in this or other chapters of
this Regulation. To be considered for benefits under paragraph (d) of
this section, the described services or supplies must be prescribed and
ordered by a physician. Other authorized individual professional
providers acting within their scope of licensure may also prescribe and
order these services and supplies unless otherwise specified in
paragraph (d) of this section.
(2) Billing practices. To be considered for benefits under paragraph
(d) of this section, covered services and supplies must be provided and
billed for by an authorized provider as set forth in Sec. 199.6 of this
part. Such billing must be itemized fully and described sufficiently,
even when CHAMPUS payment is determined under the CHAMPUS
[[Page 127]]
DRG-based payment system, so that CHAMPUS can determine whether benefits
are authorized by this part. Except for claims subject to the CHAMPUS
DRG-based payment system, whenever continuing charges are involved,
claims should be submitted to the appropriate CHAMPUS fiscal
intermediary at least every 30 days (monthly) either by the beneficiary
or sponsor or directly by the provider. For claims subject to the
CHAMPUS DRG-based payment system, claims may be submitted only after the
beneficiary has been discharged or transferred from the hospital.
(3) Other covered services and supplies--(i) Blood. If whole blood
or plasma (or its derivatives) are provided and billed for by an
authorized institution in connection with covered treatment, benefits
are extended as set forth in paragraph (b) of this section. If blood is
billed for directly to a beneficiary, benefits may be extended under
paragraph (d) in the same manner as a medical supply.
(ii) Durable equipment--(A) Scope of benefit. (1) Durable equipment,
which is for the specific use of the beneficiary and is ordered by an
authorized individual professional provider listed in Sec.
199.6(c)(3)(i), (ii) or (iii), acting within his or her scope of
licensure shall be covered if the durable equipment meets the definition
in Sec. 199.2 and--
(i) Provides the medically appropriate level of performance and
quality for the medical condition present and
(ii) Is not otherwise excluded by this part.
(2) Items that may be provided to a beneficiary as durable equipment
include:
(i) Durable medical equipment as defined in Sec. 199.2;
(ii) Wheelchairs. A wheelchair, which is medically appropriate to
provide basic mobility, including reasonable additional costs for
medically appropriate modifications to accommodate a particular
physiological or medical need, may be covered as durable equipment. An
electric wheelchair, or TRICARE approved alternative to an electric
wheelchair (e.g., scooter) may be provided in lieu of a manual
wheelchair when it is medically indicated and appropriate to provide
basic mobility. Luxury or deluxe wheelchairs, as described in paragraph
(d)(3)(ii)(A)(3) of this section, include features beyond those required
for basic mobility of a particular beneficiary are not authorized.
(iii) Iron lungs.
(iv) Hospital beds.
(v) Cardiorespiratory monitors under conditions specified in
paragraph (d)(3)(ii)(B) of this section.
(3) Whether a prescribed item of durable equipment provides the
medically appropriate level of performance and quality for the
beneficiary's condition must be supported by adequate documentation.
Luxury, deluxe, immaterial, or non- essential features, which increase
the cost of the item relative to a similar item without those features,
based on industry standards for a particular item at the time the
equipment is prescribed or replaced for a beneficiary, are not
authorized. Only the ``base'' or ``basic'' model of equipment (or more
cost- effective alternative equipment) shall be covered, unless
customization of the equipment, or any accessory or item of supply for
any durable medical equipment, is essential, as determined by the
Director (or designee), for--
(i) Achieving therapeutic benefit for the patient;
(ii) Making the equipment serviceable; or
(iii) Otherwise assuring the proper functioning of the equipment.
(B) Cardiorespiratory monitor exception. (1) When prescribed by a
physician who is otherwise eligible as a CHAMPUS individual professional
provider, or who is on active duty with a United States Uniformed
Service, an electronic cardiorespiratory monitor, including technical
support necessary for the proper use of the monitor, may be cost-shared
as durable medical equipment when supervised by the prescribing
physician for in-home use by:
(i) An infant beneficiary who has had an apparent life-threatening
event, as defined in guidelines issued by the Director, OCHAMPUS, or a
designee, or
(ii) An infant beneficiary who is a subsequent or multiple birth
biological sibling of a victim of sudden infant death syndrome (SIDS),
or
[[Page 128]]
(iii) An infant beneficiary whose birth weight was 1,500 grams or
less, or
(iv) An infant beneficiary who is a pre-term infant with pathologic
apnea, as defined in guidelines issued by the Director, OCHAMPUS, or a
designee, or
(v) Any beneficiary who has a condition or suspected condition
designated in guidelines issued by the Director, OCHAMPUS, or a
designee, for which the in-home use of the cardiorespiratory monitor
otherwise meets Basic Program requirements.
(2) The following types of services and items may be cost-shared
when provided in conjunction with an otherwise authorized
cardiorespiratory monitor:
(i) Trend-event recorder, including technical support necessary for
the proper use of the recorder.
(ii) Analysis of recorded physiological data associated with monitor
alarms.
(iii) Professional visits for services otherwise authorized by this
part, and for family training on how to respond to an apparent life
threatening event.
(iv) Diagnostic testing otherwise authorized by this part.
(C) Exclusions. Durable equipment, which is otherwise qualified as a
benefit is excluded from coverage under the following circumstances:
(1) Durable equipment for a beneficiary who is a patient in a type
of facility that ordinarily provides the same type of durable equipment
item to its patients at no additional charge in the usual course of
providing its services.
(2) Durable equipment, which is available to the beneficiary from a
Uniformed Services Medical Treatment Facility.
(D) Basis for reimbursement. (1) Durable equipment may be provided
on a rental or purchase basis. Coverage of durable equipment will be
based on the price most advantageous to the government taking into
consideration the anticipated duration of the medically necessary need
for the equipment and current price information for the type of item.
The cost analysis must include a comparison of the total price of the
item as a monthly rental charge, a lease-purchase price, and a lump-sum
purchase price and a provision for the time value of money at the rate
determined by the U.S. Department of Treasury. If a beneficiary wishes
to obtain an item of durable equipment with deluxe, luxury, immaterial
or non-essential features, the beneficiary may agree to accept TRICARE
coverage limited to the allowable amount that would have otherwise been
authorized for a similar item without those features. In that case, the
TRICARE coverage is based upon the allowable amount for the kind of
durable equipment normally used to meet the intended purpose (i.e., the
standard item least costly). The provider shall not hold the beneficiary
liable for deluxe, luxury, immaterial, or non- essential features that
cannot be considered in determining the TRICARE allowable costs.
However, the beneficiary shall be held liable if the provider has a
specific agreement in writing from the beneficiary (or his or her
representative) accepting liability for the itemized difference in costs
of the durable equipment with deluxe, luxury, or immaterial features and
the TRICARE allowable costs for an otherwise authorized item without
such features.
(2) In general, repairs of beneficiary owned durable equipment are
covered when necessary to make the equipment serviceable and replacement
of durable equipment is allowed when the durable equipment is not
serviceable because of normal wear, accidental damage or when
necessitated by a change in the beneficiary's condition. However,
repairs of durable equipment damaged while using the equipment in a
manner inconsistent with its common use, and replacement of lost or
stolen rental durable equipment are excluded from coverage. In addition,
repairs of deluxe, luxury, or immaterial features of durable equipment
are excluded from coverage.
(iii) Medical supplies and dressings (consumables)--(A) In general.
In general, medical supplies and dressings (consumables) are those that
do not withstand prolonged, repeated use. Such items must be related
directly to an appropriate and verified covered medical condition of the
specific beneficiary for whom the item was purchased and obtained from a
medical
[[Page 129]]
supply company, a pharmacy, or authorized institutional provider.
Examples of covered medical supplies and dressings are disposable
syringes for a known diabetic, colostomy sets, irrigation sets, and
elastic bandages. An external surgical garment specifically designed for
use follow a mastectomy is considered a medical supply item.
Note 1 to paragraph (d)(3)(iii)(A): Generally, the allowable charge
of a medical supply item will be under $100. Any item over this amount
must be reviewed to determine whether it would qualify as a DME item. If
it is, in fact, a medical supply item and does not represent an
excessive charge, it can be considered for benefits under paragraph
(d)(3)(iii) of this section.
(B) Medically necessary food and medical equipment and supplies
necessary to administer such food (other than durable medical equipment
and supplies) when prescribed for dietary management of a covered
disease or condition. (1) Medically necessary food, including a low
protein modified food product or an amino acid preparation product, may
be covered when:
(i) Furnished pursuant to the prescription, order, or recommendation
of a TRICARE authorized provider acting within the provider's scope of
license/certificate of practice, for the dietary management of a covered
disease or condition;
(ii) Is a specifically formulated and processed product (as opposed
to a naturally occurring foodstuff used in its natural state) for the
partial or exclusive feeding of an individual by means of oral intake or
enteral feeding by tube;
(iii) Is intended for the dietary management of an individual who,
because of therapeutic or chronic medical needs, has limited or impaired
capacity to ingest, digest, absorb, or metabolize ordinary foodstuffs or
certain nutrients, or who has other special medically determined
nutrient requirements, the dietary management of which cannot be
achieved by the modification of the normal diet alone;
(iv) Is intended to be used under medical supervision, which may
include in a home setting; and
(v) Is intended only for an individual receiving active and ongoing
medical supervision under which the individual requires medical care on
a recurring basis for, among other things, instructions on the use of
the food.
(2) Medically necessary food does not include:
(i) Food taken as part of an overall diet designed to reduce the
risk of a disease or medical condition or as weight-loss products, even
if the food is recommended by a physician or other health care
professional;
(ii) Food marketed as gluten-free for the management of celiac
disease or non-celiac gluten sensitivity;
(iii) Food marketed for the management of diabetes; or
(iv) Such other products as the Director, Defense Health Agency
determines appropriate.
(3) Covered disease or condition under paragraph (d)(3)(iii)(B) of
this section means:
(i) Inborn errors of metabolism;
(ii) Medical conditions of malabsorption;
(iii) Pathologies of the alimentary tract or the gastrointestinal
tract;
(iv) A neurological or physiological condition; and
(v) Such other diseases or conditions the Director, Defense Health
Agency determines appropriate.
(iv) Oxygen. Oxygen and equipment for its administration are
covered. Benefits are limited to providing a tank unit at one location
with oxygen limited to a 30-day supply at any one time. Repair and
adjustment of CHAMPUS-purchased oxygen equipment also is covered.
(v) Ambulance. Civilian ambulance service is covered when medically
necessary in connection with otherwise covered services and supplies and
a covered medical condition. For the purpose of TRICARE payment,
ambulance service is an outpatient service (including in connection with
maternity care) with the exception of otherwise covered transfers
between hospitals which are cost-shared on an inpatient basis. Ambulance
transfers from a hospital based emergency room to another hospital more
capable of providing the required care will also be cost-shared on an
inpatient basis.
Note: The inpatient cost-sharing provisions for ambulance transfers
only apply to
[[Page 130]]
otherwise covered transfers between hospitals, i.e., acute care,
general, and special hospitals; psychiatric hospitals; and long-term
hospitals.
(A) Ambulance service cannot be used instead of taxi service and is
not payable when the patient's condition would have permitted use of
regular private transportation; nor is it payable when transport or
transfer of a patient is primarily for the purpose of having the patient
nearer to home, family, friends, or personal physician. Except as
described in paragraph (d)(3)(v)(C)(1) of this section transport must be
to the closest appropriate facility by the least costly means.
(B) Vehicles such as medicabs or ambicabs function primarily as
public passenger conveyances transporting patients to and from their
medical appointments. No actual medical care is provided to the patients
in transit. These types of vehicles do not qualify for benefits for the
purpose of CHAMPUS payment.
(C) Except as described in paragraph (d)(3)(v)(C)(1)(1) of this
section, ambulance services by other than land vehicles (such as a boat
or airplane) may be considered only when the pickup point is
inaccessible by a land vehicle, or when great distance or other
obstacles are involved in transporting the patient to the nearest
hospital with appropriate facilities and the patient's medical condition
warrants speedy admission or is such that transfer by other means is
contraindicated.
(1) Advanced life support air ambulance and certified advanced life
support attendant are covered services for solid organ and stem cell
transplant candidates.
(2) Advanced life support air ambulance and certified advanced life
support attendant shall be reimbursed subject to standard reimbursement
methodologies.
(vi) Drugs and medicines. Drugs and medicines that by United States
law require a prescription are also referred to as ``legend drugs.''
Legend drugs are covered when prescribed by a physician or other
authorized individual professional provider acting within the scope of
the provider's license and ordered or prescribed in connection with an
otherwise covered condition or treatment, and not otherwise excluded by
TRICARE. This includes Rh immune globulin.
(A) Drugs administered by a physician or other authorized individual
professional provider as an integral part of a procedure covered under
paragraph (b) or (c) of this section (such as chemotherapy) are not
covered under this subparagraph inasmuch as the benefit for the
institutional services or the professional services in connection with
the procedure itself also includes the drug used.
(B) CHAMPUS benefits may not be extended for drugs not approved by
the U.S. Food and Drug Administration for commercial marketing. Drugs
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be
covered under CHAMPUS as if FDA approved.
(C) Over-the-counter (OTC) drugs (drugs that by United States law do
not require a prescription), in general, are not covered. However,
insulin is covered for a known diabetic even in states that do not
require a prescription for its purchase. In addition, OTC drugs used for
smoking cessation are covered when all requirements under the TRICARE
smoking cessation program are met as provided in paragraph (e)(30) of
this section.
(D) Medically necessary vitamins used for the management of a
covered disease or condition pursuant to a prescription, order, or
recommendation of a TRICARE authorized provider acting within the
provider's scope of license/certificate of practice. For purposes of
this paragraph (d)(3)(vi)(D), the term ``covered disease or condition''
means:
(1) Inborn errors of metabolism;
(2) Medical conditions of malabsorption;
(3) Pathologies of the alimentary tract or the gastrointestinal
tract;
(4) A neurological or physiological condition;
(5) Pregnancy in relation to prenatal vitamins, with the limitation
the prenatal vitamins that require a prescription in the United States
may be covered for prenatal care only;
(6) Such other disease or conditions the Director, Defense Health
Agency determines appropriate.
(vii) Prosthetics, prosthetic devices, and prosthetic supplies, as
determined
[[Page 131]]
by the Secretary of Defense to be necessary because of significant
conditions resulting from trauma, congenital anomalies, or disease.
Additionally, the following are covered:
(A) Any accessory or item of supply that is used in conjunction with
the device for the purpose of achieving therapeutic benefit and proper
functioning;
(B) Services necessary to train the recipient of the device in the
use of the device;
(C) Repair of the device for normal wear and tear or damage;
(D) Replacement of the device if the device is lost or irreparably
damaged or the cost of repair would exceed 60 percent of the cost of
replacement.
(viii) Orthopedic braces and appliances. The purchase of leg braces
(including attached shoes), arm braces, back braces, and neck braces is
covered, orthopedic shoes, arch supports, shoe inserts, and other
supportive devices for the feet, including special-ordered, custom-made
built-up shoes or regular shoes subsequently built up, are not covered.
(ix) Diabetes Self-Management Training (DSMT). A training service or
program that educates diabetic patients about the successful self-
management of diabetes. It includes the following criteria: Education
about self-monitoring of blood glucose, diet, and exercise; an insulin
treatment plan developed specifically for the patient who is insulin-
dependent; and motivates the patient to use the skills for self-
management. The DSMT service or program must be accredited by the
American Diabetes Association.
Coverage limitations on the provision of this benefit will be as
determined by the Director, TRICARE Management Activity, or designee.
(e) Special benefit information--(1) General. There are certain
circumstances, conditions, or limitations that impact the extension of
benefits and that require special emphasis and explanation. This
paragraph (e) sets forth those benefits and limitations recognized to be
in this category. The benefits and limitations herein described also are
subject to all applicable definitions, conditions, limitations,
exceptions, and exclusions as set forth in this or other sections of
this part, except as otherwise may be provided specifically in this
paragraph (e).
(2) Abortion. The statute under which CHAMPUS operates prohibits
payment for abortions with one single exception--where the life of the
mother would be endangered if the fetus were carried to term. Covered
abortion services are limited to medical services and supplies only.
Physician certification is required attesting that the abortion was
performed because the mother's life would be endangered if the fetus
were carried to term. Abortions performed for suspected or confirmed
fetal abnormality (e.g., anencephalic) or for mental health reasons
(e.g., threatened suicide) do not fall within the exceptions permitted
within the language of the statute and are not authorized for payment
under CHAMPUS.
Note: Covered abortion services are limited to medical services or
supplies only for the single circumstance outlined above and do not
include abortion counseling or referral fees. Payment is not allowed for
any services involving preparation for, or normal followup to, a
noncovered abortion. The Director, OCHAMPUS, or a designee, shall issue
guidelines describing the policy on abortion.
(3) Family planning. The scope of the CHAMPUS family planning
benefit is as follows:
(i) Birth control (such as contraception)--(A) Benefits provided.
Benefits are available for services and supplies related to preventing
conception, including the following:
(1) Surgical inserting, removal, or replacement of intrauterine
devices.
(2) Measurement for, and purchase of, contraceptive diaphragms (and
later remeasurement and replacement).
(3) Prescription contraceptives.
(4) Surgical sterilization (either male or female).
(B) Exclusions. The family planning benefit does not include the
following:
(1) Prophylactics (condoms).
(2) Spermicidal foams, jellies, and sprays not requiring a
prescription.
(3) Services and supplies related to noncoital reproductive
technologies, including but not limited to artificial insemination
(including any costs related to donors or semen banks), in-vitro
fertilization and gamete intrafallopian transfer.
[[Page 132]]
(4) Reversal of a surgical sterilization procedure (male or female).
(ii) Genetic testing. Genetic testing essentially is preventive
rather than related to active medical treatment of an illness or injury.
However, under the family planning benefit, genetic testing is covered
when performed in certain high risk situations. For the purpose of
CHAMPUS, genetic testing includes to detect developmental abnormalities
as well as purely genetic defects.
(A) Benefits provided. Benefits may be extended for genetic testing
performed on a pregnant beneficiary under the following prescribed
circumstances. The tests must be appropriate to the specific risk
situation and must meet one of the following criteria:
(1) The mother-to-be is 35 years old or older; or
(2) The mother- or father-to-be has had a previous child born with a
congenital abnormality; or
(3) Either the mother- or father-to-be has a family history of
congenital abnormalities; or
(4) The mother-to-be contracted rubella during the first trimester
of the pregnancy; or
(5) Such other specific situations as may be determined by the
Director, OCHAMPUS, or a designee, to fall within the intent of
paragraph (e)(3)(ii) of this section.
(B) Exclusions. It is emphasized that routine or demand genetic
testing is not covered. Further, genetic testing does not include the
following:
(1) Tests performed to establish paternity of a child.
(2) Tests to determine the sex of an unborn child.
(4) [Reserved]
(5) Transplants. (i) Organ transplants. Basic Program benefits are
available for otherwise covered services or supplies in connection with
an organ transplant procedure, provided such transplant procedure is in
accordance with accepted professional medical standards and is not
considered unproven.
(A) General. (1) Benefits may be allowed for medically necessary
services and supplies related to an organ transplant for:
(i) Evaluation of potential candidate's suitability for an organ
transplant, whether or not the patient is ultimately accepted as a
candidate for transplant.
(ii) Pre- and post-transplant inpatient hospital and outpatient
services.
(iii) Pre- and post-operative services of the transplant team.
(iv) Blood and blood products.
(v) FDA approved immunosuppression drugs to include off-label uses
when determined to be medically necessary for the treatment of the
condition for which it is administered, according to accepted standards
of medical practice.
(vi) Complications of the transplant procedure, including inpatient
care, management of infection and rejection episodes.
(vii) Periodic evaluation and assessment of the successfully
transplanted patient.
(viii) The donor acquisition team, including the costs of
transportation to the location of the donor organ and transportation of
the team and the donated organ to the location of the transplant center.
(ix) The maintenance of the viability of the donor organ after all
existing legal requirements for excision of the donor organ have been
met.
(2) TRICARE benefits are payable for recipient costs when the
recipient of the transplant is a CHAMPUS beneficiary, whether or not the
donor is a CHAMPUS beneficiary.
(3) Donor costs are payable when:
(i) Both the donor and recipient are CHAMPUS beneficiaries.
(ii) The donor is a CHAMPUS beneficiary but the recipient is not.
(iii) The donor is the sponsor and the recipient is a CHAMPUS
beneficiary. (In such an event, donor costs are paid as a part of the
beneficiary and recipient costs.)
(iv) The donor is neither a CHAMPUS beneficiary nor a sponsor, if
the recipient is a CHAMPUS beneficiary. (Again, in such an event, donor
costs are paid as a part of the beneficiary and recipient costs.)
(4) If the donor is not a CHAMPUS beneficiary, TRICARE benefits for
[[Page 133]]
donor costs are limited to those directly related to the transplant
procedure itself and do not include any medical care costs related to
other treatment of the donor, including complications.
(5) TRICARE benefits will not be allowed for transportation of an
organ donor.
(B) [Reserved]
(ii) Stem cell transplants. TRICARE benefits are payable for
beneficiaries whose conditions are considered appropriate for stem cell
transplant according to guidelines adopted by the Executive Director,
TMA, or a designee.
(6) Eyeglasses, spectacles, contact lenses, or other optical
devices. Eyeglasses, spectacles, contact lenses, or other optical
devices are excluded under the Basic Program except under very limited
and specific circumstances.
(i) Exception to general exclusion. Benefits for glasses and lenses
may be extended only in connection with the following specified eye
conditions and circumstances:
(A) Eyeglasses or lenses that perform the function of the human
lens, lost as a result of intraocular surgery or ocular injury or
congenital absence.
Note: Notwithstanding the general requirement for U.S. Food and Drug
Administration approval of any surgical implant set forth in paragraph
(d)(3)(vii) of this section, intraocular lenses are authorized under
CHAMPUS if they are either approved for marketing by FDA or are subject
to an investigational device exemption.
(B) ``Pinhole'' glasses prescribed for use after surgery for
detached retina.
(C) Lenses prescribed as ``treatment'' instead of surgery for the
following conditions:
(1) Contract lenses used for treatment of infantile glaucoma.
(2) Corneal or scleral lenses prescribed in connection with
treatment of keratoconus.
(3) Scleral lenses prescribed to retain moisture when normal tearing
is not present or is inadequate.
(4) Corneal or scleral lenses prescribed to reduce a corneal
irregularity other than astigmatism.
(ii) Limitations. The specified benefits are limited further to one
set of lenses related to one of the qualifying eye conditions set forth
in paragraph (e)(6)(i) of this section. If there is a prescription
change requiring a new set of lenses (but still related to the
qualifying eye condition), benefits may be extended for a second set of
lenses, subject to specific medical review.
(7) [Reserved]
(8) Cosmetic, reconstructive, or plastic surgery. For the purposes
of CHAMPUS, cosmetic, reconstructive, or plastic surgery is surgery that
can be expected primarily to improve physical appearance or that is
performed primarily for psychological purposes or that restores form,
but does not correct or improve materially a bodily function.
Note: If a surgical procedure primarily restores function, whether
or not there is also a concomitant improvement in physical appearance,
the surgical procedure does not fall within the provisions set forth in
this paragraph (e)(8).
(i) Limited benefits under CHAMPUS. Benefits under the Basic Program
generally are not available for cosmetic, reconstructive, or plastic
surgery. However, under certain limited circumstances, benefits for
otherwise covered services and supplies may be provided in connection
with cosmetic, reconstructive, or plastic surgery as follows:
(A) Correction of a congenital anomaly; or
(B) Restoration of body form following an accidental injury; or
(C) Revision of disfiguring and extensive scars resulting from
neoplastic surgery.
(D) Reconstructive breast surgery following a medically necessary
mastectomy performed for the treatment of carcinoma, severe fibrocystic
disease, other nonmalignant tumors or traumatic injuries.
(E) Penile implants and testicular prostheses for conditions
resulting from organic origins (i.e., trauma, radical surgery, disease
process, for correction of congenital anomaly, etc.). Also, penile
implants for organic impotency.
Note: Organic impotence is defined as that which can be reasonably
expected to occur
[[Page 134]]
following certain diseases, surgical procedures, trauma, injury, or
congenital malformation. Impotence does not become organic because of
psychological or psychiatric reasons.
(F) Generally, benefits are limited to those cosmetic,
reconstructive, or plastic surgery procedures performed no later than
December 31 of the year following the year in which the related
accidental injury or surgical trauma occurred, except for authorized
postmastectomy breast reconstruction for which there is no time
limitation between mastectomy and reconstruction. Also, special
consideration for exception will be given to cases involving children
who may require a growth period.
(ii) General exclusions. (A) For purposes of CHAMPUS, dental
congenital anomalies such as absent tooth buds or malocclusion
specifically are excluded.
(B) Cosmetic, reconstructive, or plastic surgery procedures
performed primarily for psychological reasons or as a result of the
aging process also are excluded.
(C) Procedures performed for elective correction of minor
dermatological blemishes and marks or minor anatomical anomalies also
are excluded.
(D) Any procedures related to sex gender changes, except as provided
in paragraph (g)(29) of this section, are excluded.
(iii) Noncovered surgery, all related services and supplies
excluded. When it is determined that a cosmetic, reconstructive, or
plastic surgery procedure does not qualify for CHAMPUS benefits, all
related services and supplies are excluded, including any institutional
costs.
(iv) Example of noncovered cosmetic, reconstructive, or plastic
surgery procedures. The following is a partial list of cosmetic,
reconstructive, or plastic surgery procedures that do not qualify for
benefits under CHAMPUS. This list is for example purposes only and is
not to be construed as being all-inclusive.
(A) Any procedure performed for personal reasons to improve the
appearance of an obvious feature or part of the body that would be
considered by an average observer to be normal and acceptable for the
patient's age or ethnic or racial background.
(B) Cosmetic, reconstructive, or plastic surgical procedures that
are justified primarily on the basis of a psychological or psychiatric
need.
(C) Augmentation mammoplasties. Augmentation mammoplasties, except
for breast reconstruction following a covered mastectomy and those
specifically authorized in paragraph (e)(8)(i) of this section.
(D) Face lifts and other procedures related to the aging process.
(E) Reduction mammoplasties. Reduction mammoplasties (unless there
is medical documentation of intractable pain, not amenable to other
forms of treatment, resulting from large, pendulous breasts or unless
performed as an integral part of an authorized breast reconstruction
procedure under paragraph (e)(8)(i) of this section, including reduction
of the collateral breast for purposes of ensuring breast symmetry)
(F) Panniculectomy; body sculpture procedures.
(G) Repair of sagging eyelids (without demonstrated and medically
documented significant impairment of vision).
(H) Rhinoplasties (without evidence of accidental injury occurring
within the previous 6 months that resulted in significant obstruction of
breathing).
(I) Chemical peeling for facial wrinkles.
(J) Dermabrasion of the face.
(K) Elective correction of minor dermatological blemishes and marks
or minor anatomical anomalies.
(L) Revision of scars resulting from surgery or a disease process,
except disfiguring and extensive scars resulting from neoplastic
surgery.
(M) Removal of tattoos.
(N) Hair transplants.
(O) Electrolysis.
(P) [Reserved]
(Q)) Penile implant procedure for psychological impotency or as
related to sex gender changes, as prohibited by section 1079 of title
10, United States Code.
(R) Insertion of prosthetic testicles as related to sex gender
changes, as prohibited by section 1079 of title 10, United States Code.
(9) Care related to non-covered initial surgery or treatment. (i)
Benefits are
[[Page 135]]
available for otherwise covered services and supplies required in the
treatment of complications resulting from a non-covered incident of
treatment (such as nonadjunctive dental care or cosmetic surgery) but
only if the later complication represents a separate medical condition
such as a systemic infection, cardiac arrest, and acute drug reaction.
Benefits may not be extended for any later care or a procedure related
to the complication that essentially is similar to the initial non-
covered care. Examples of complications similar to the initial episode
of care (and thus not covered) would be repair of facial scarring
resulting from dermabrasion for acne.
(ii) Benefits are available for otherwise covered services and
supplies required in the treatment of complications (unfortunate
sequelae) and any necessary follow-on care resulting from a non-covered
incident of treatment provided in an MTF, when the initial non-covered
service has been authorized by the MTF Commander and the MTF is unable
to provide the necessary treatment of the complications or required
follow-on care, according to the guidelines adopted by the Director,
DHA, or a designee.
(iii) Benefits are available for otherwise covered services and
supplies required in the treatment of complications (unfortunate
sequelae) and any necessary follow-on care resulting from a non-covered
incident of treatment provided in the private sector pursuant to a
properly granted waiver under Sec. 199.16(f). The Director, DHA, or
designee, shall issue guidelines for implementing this provision.
(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. Under very limited circumstances, benefits are
available for dental services and supplies when the dental services are
adjunctive to otherwise covered medical treatment.
(i) Adjunctive dental care: Limited. Adjunctive dental care is
limited to those services and supplies provided under the following
conditions:
(A) Dental care which is medically necessary in the treatment of an
otherwise covered medical (not dental) condition, is an integral part of
the treatment of such medical condition and is essential to the control
of the primary medical condition. The following is a list of conditions
for which CHAMPUS benefits are payable under this provision:
(1) Intraoral abscesses which extend beyond the dental alveolus.
(2) Extraoral abscesses.
(3) Cellulitis and osteitis which is clearly exacerbating and
directly affecting a medical condition currently under treatment.
(4) Removal of teeth and tooth fragments in order to treat and
repair facial trauma resulting from an accidental injury.
(5) Myofacial Pain Dysfunction Syndrome.
(6) Total or complete ankyloglossia.
(7) Adjunctive dental and orthodontic support for cleft palate.
(8) The prosthetic replacement of either the maxilla or the mandible
due to the reduction of body tissues associated with traumatic injury
(e.g., impact, gun shot wound), in addition to services related to
treating neoplasms or iatrogenic dental trauma.
Note: The test of whether dental trauma is covered is whether the
trauma is solely dental trauma. Dental trauma, in order to be covered,
must be related to, and an integral part of medical trauma; or a result
of medically necessary treatment of an injury or disease.
(B) Dental care required in preparation for medical treatment of a
disease or disorder or required as the result of dental trauma caused by
the medically necessary treatment of an injury or disease (iatrogenic).
(1) Necessary dental care including prophylaxis and extractions when
performed in preparation for or as a result of in-line radiation therapy
for oral or facial cancer.
(2) Treatment of gingival hyperplasia, with or without periodontal
disease, as a direct result of prolonged therapy with Dilantin
(diphenylhydantoin) or related compounds.
[[Page 136]]
(C) Dental care is limited to the above and similar conditions
specifically prescribed by the Director, OCHAMPUS, as meeting the
requirements for coverage under the provisions of this section.
(ii) General exclusions. (A) Dental care which is routine,
preventative, restorative, prosthodontic, periodontic or emergency does
not qualify as adjunctive dental care for the purposes of CHAMPUS except
when performed in preparation for or as a result of dental trauma caused
by medically necessary treatment of an injury or disease.
(B) The adding or modifying of bridgework and dentures.
(C) Orthodontia, except when directly related to and an integral
part of the medical or surgical correction of a cleft palate or when
required in preparation for, or as a result of, trauma to the teeth and
supporting structures caused by medically necessary treatment of an
injury or disease.
(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. When adjunctive dental care involves a medical (not
dental) emergency (such as facial injuries resulting from an accident),
the requirement for preauthorization is waived. Such waiver, however, is
limited to the essential adjunctive dental care related to the medical
condition requiring the immediate emergency treatment. A complete
explanation, with supporting medical documentation, must be submitted
with claims for emergency adjunctive dental care.
(iv) Covered oral surgery. Notwithstanding the above limitations on
dental care, there are certain oral surgical procedures that are
performed by both physicians and dentists, and that are essentially
medical rather than dental care. For the purposes of CHAMPUS, the
following procedures, whether performed by a physician or dentist, are
considered to be in this category and benefits may be extended for
otherwise covered services and supplies without preauthorization:
(A) Excision of tumors and cysts of the jaws, cheeks, lips, tongue,
and roof and floor of the mouth, when such conditions require a
pathological (histological) examination.
(B) Surgical procedures required to correct accidental injuries of
the jaws, cheeks, lips, tongue, and roof and floor of the mouth.
(C) Treatment of oral or facial cancer.
(D) Treatment of fractures of facial bones.
(E) External (extra-oral) incision and drainage of cellulitis.
(F) Surgery of accessory sinuses, salivary glands, or ducts.
(G) Reduction of dislocations and the excision of the
temporomandibular joints, when surgery is a necessary part of the
reduction.
(H) Any oral surgical procedure that falls within the cosmetic,
reconstructive, or plastic surgery definition is subject to the
limitations and requirements set forth in paragraph (e)(8) of this
section.
Note: Extraction of unerupted or partially erupted, malposed or
impacted teeth, with or without the attached follicular or development
tissues, is not a covered oral surgery procedure except when the care is
indicated in preparation for medical treatment of a disease or disorder
or required as a result of dental trauma caused by the necessary medical
treatment of an injury or illness. Surgical preparation of the mouth for
dentures is not covered by CHAMPUS.
(v) Inpatient hospital stay in connection with non-adjunctive,
noncovered dental care. Institutional benefits specified in paragraph
(b) of this section may be extended for inpatient hospital stays related
to noncovered, nonadjunctive dental care when such inpatient stay is
medically necessary to safeguard the life of the patient from the
effects of dentistry because of the existence of a specific and serious
nondental organic impairment currently under active treatment.
(Hemophilia is an example of a condition that could be considered a
serious nondental impairment.) Preauthorization by the Director,
OCHAMPUS, or a designee, is required for such 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 the
[[Page 137]]
hospital admission is approved and thus qualifies for institutional
benefits, the professional service related to the nonadjunctive dental
care is not covered.
(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
Sec. 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.
(11) Drug abuse. Under the Basic Program, benefits may be extended
for medically necessary prescription drugs required in the treatment of
an illness or injury or in connection with maternity care (refer to
paragraph (d) of this section). However, TRICARE benefits cannot be
authorized to support or maintain an existing or potential drug abuse
situation whether or not the drugs (under other circumstances) are
eligible for benefit consideration and whether or not obtained by legal
means. Drugs, including the substitution of a therapeutic drug with
addictive potential for a drug of addiction, prescribed to beneficiaries
undergoing medically supervised treatment for a substance use disorder
as authorized under paragraphs (b) and (c) of this section are not
considered to be in support of, or to maintain, an existing or potential
drug abuse situation and are allowed. The Director may prescribe
appropriate policies to implement this prescription drug benefit for
those undergoing medically supervised treatment for a substance use
disorder.
(i) Limitations on who can prescribe drugs. CHAMPUS benefits are not
available for any drugs prescribed by a member of the beneficiary's
family or by a nonfamily member residing in the same household with the
beneficiary or sponsor.
(ii) [Reserved]
(iii) Kinds of prescription drugs that are monitored carefully by
CHAMPUS for possible abuse situations--(A) Narcotics. Examples are
Morphine and Demerol.
(B) Nonnarcotic analgesics. Examples are Talwin and Darvon.
(C) Tranquilizers. Examples are Valium, Librium, and Meprobamate.
(D) Barbiturates. Examples are Seconal and Nembuttal.
(E) Nonbarbituate hypnotics. Examples are Doriden and Chloral
Hydrate.
(F) Stimulants. Examples are amphetamines.
(iv) CHAMPUS fiscal intermediary responsibilities. CHAMPUS fiscal
intermediaries are responsible for implementing utilization control and
quality assurance procedures designed to identify possible drug abuse
situations. The CHAMPUS fiscal intermediary is directed to screen all
drug claims for potential overutilization and irrational prescribing of
drugs, and to subject any such cases to extensive review to establish
the necessity for the drugs and their appropriateness on the basis of
diagnosis or definitive symptoms.
(A) When a possible drug abuse situation is identified, all claims
for drugs for that specific beneficiary or provider will be suspended
pending the results of a review.
(B) If the review determines that a drug abuse situation does in
fact exist,
[[Page 138]]
all drug claims held in suspense will be denied.
(C) If the record indicates previously paid drug benefits, the prior
claims for that beneficiary or provider will be reopened and the
circumstances involved reviewed to determine whether or not drug abuse
also existed at the time the earlier claims were adjudicated. If drug
abuse is later ascertained, benefit payments made previously will be
considered to have been extended in error and the amounts so paid
recouped.
(D) Inpatient stays primarily for the purpose of obtaining drugs and
any other services and supplies related to drug abuse also are excluded.
(v) Unethical or illegal provider practices related to drugs. Any
such investigation into a possible drug abuse that uncovers unethical or
illegal drug dispensing practices on the part of an institution, a
pharmacy, or physician will be referred to the professional or
investigative agency having jurisdiction. CHAMPUS fiscal intermediaries
are directed to withhold payment of all CHAMPUS claims for services and
supplies rendered by a provider under active investigation for possible
unethical or illegal drug dispensing activities.
(vi) Detoxification. The above monitoring and control of drug abuse
situations shall in no way be construed to deny otherwise covered
medical services and supplies related to drug detoxification (including
newborn, addicted infants) when medical supervision is required.
(12) [Reserved]
(13) Domiciliary care. The statute under which CHAMPUS operates also
specifically excludes domiciliary care (refer to Sec. 199.2 of this
part for the definition of ``Domiciliary Care'').
(i) Examples of domiciliary care situations. The following are
examples of domiciliary care for which CHAMPUS benefits are not payable.
(A) Home care is not available. Institutionalization primarily
because parents work, or extension of a hospital stay beyond what is
medically necessary because the patient lives alone, are examples of
domiciliary care provided because there is no other family member or
other person available in the home.
(B) Home care is not suitable. Institutionalization of a child
because a parent (or parents) is unable to provide a safe and nurturing
environment due to a mental or substance use disorder, or because
someone in the home has a contagious disease, are examples of why
domiciliary care is being provided because the home setting is
unsuitable.
(C) Family unwilling to care for a person in the home. A child who
is difficult to manage may be placed in an institution, not because
institutional care is medically necessary, but because the family does
not want to handle him or her in the home. Such institutionalization
would represent domiciliary care, that is, the family being unwilling to
assume responsibility for the child.
(ii) Benefits available in connection with a domiciliary care case.
Should the beneficiary receive otherwise covered medical services or
supplies while also being in a domiciliary care situation, CHAMPUS
benefits are payable for those medical services or supplies, or both, in
the same manner as though the beneficiary resided in his or her own
home. Such benefits would be cost-shared as though rendered to an
outpatient.
(iii) General exclusion. Domiciliary care is institutionalization
essentially to provide a substitute home--not because it is medically
necessary for the beneficiary to be in the institution (although there
may be conditions present that have contributed to the fact that
domiciliary care is being rendered). CHAMPUS benefits are not payable
for any costs or charges related to the provision of domiciliary care.
While a substitute home or assistance may be necessary for the
beneficiary, domiciliary care does not represent the kind of care for
which CHAMPUS benefits can be provided.
(14) CT scanning--(i) Approved CT scan services. Benefits may be
extended for medically necessary CT scans of the head or other
anatomical regions of the body when all of the following conditions are
met:
(A) The patient is referred for the diagnostic procedure by a
physician.
(B) The CT scan procedure is consistent with the preliminary
diagnosis or symptoms.
[[Page 139]]
(C) Other noninvasive and less costly means of diagnosis have been
attempted or are not appropriate.
(D) The CT scan equipment is licensed or registered by the
appropriate state agency responsible for licensing or registering
medical equipment that emits ionizing radiation.
(E) The CT scan equipment is operated under the general supervision
and direction of a physician.
(F) The results of the CT scan diagnostic procedure are interpreted
by a physician.
(ii) Review guidelines and criteria. The Director, OCHAMPUS, or a
designee, will issue specific guidelines and criteria for CHAMPUS
coverage of medically necessary head and body part CT scans.
(15) Morbid obesity. The TRICARE morbid obesity benefit is limited
to those bariatric surgical procedures for which the safety and efficacy
has been proven comparable or superior to conventional therapies and is
consistent with the generally accepted norms for medical practice in the
United States medical community. (See the definition of reliable
evidence in Sec. 199.2 of this part for the procedures used in
determining if a medical treatment or procedure is unproven.)
(i) Conditions for coverage. (A) Payment for bariatric surgical
procedures is determined by the requirements specified in paragraph
(g)(15) of this section, and as defined in Sec. 199.2(b) of this part.
(B) Covered bariatric surgical procedures are payable only when the
patient has completed growth (18 years of age or documentation of
completion of bone growth) and has met one of the following selection
criteria:
(1) The patient has a BMI that is equal to or exceeds 40 kg/m\2\ and
has previously been unsuccessful with medical treatment for obesity.
(2) The patient has a BMI of 35 to 39.9 kg/m\2\, has at least one
high-risk co-morbid condition associated with morbid obesity, and has
previously been unsuccessful with medical treatment for obesity.
Note: The Director, TMA, shall issue guidelines for review of the
specific high-risk co-morbid conditions, exacerbated or caused by
obesity based on the Reliable Evidence Standard as defined in Sec.
199.2 of this part.
(ii) Treatment of complications. (A) Payment may be extended for
repeat bariatric surgery when medically necessary to correct or treat
complications from the initial covered bariatric surgery (a takedown).
For instance, the surgeon in many cases will do a gastric bypass or
gastroplasty to help the patient avoid regaining the weight that was
lost. In this situation, payment is authorized even though the patient's
condition technically may not meet the definition of morbid obesity
because of the weight that was already lost following the initial
surgery.
(B) Payment is authorized for otherwise covered medical services and
supplies directly related to complications of obesity when such services
and supplies are an integral and necessary part of the course of
treatment that was aggravated by the obesity.
(iii) Exclusions. CHAMPUS payment may not be extended for weight
control services, weight control/loss programs, dietary regimens and
supplements, appetite suppressants and other medications; food or food
supplements, exercise and exercise programs, or other programs and
equipment that are primarily intended to control weight or for the
purpose of weight reduction, regardless of the existence of co-morbid
conditions.
(16) Maternity care. (i) Benefit. The CHAMPUS Basic Program may
share the cost of medically necessary services and supplies associated
with maternity care which are not otherwise excluded by this part.
(ii) Cost-share. Maternity care cost-share shall be determined as
follows:
(A) Inpatient cost-share formula applies to maternity care ending in
childbirth in, or on the way to, a hospital inpatient childbirth unit,
and for maternity care ending in a non-birth outcome not otherwise
excluded by this part.
(B) Ambulatory surgery cost-share formula applies to maternity care
ending in childbirth in, or on the way to, a birthing center to which
the beneficiary is admitted and from which the beneficiary has received
prenatal care, or a hospital-based outpatient birthing room.
[[Page 140]]
(C) Outpatient cost-share formula applies to maternity care which
terminates in a planned childbirth at home.
(D) Otherwise covered medical services and supplies directly related
to ``Complications of pregnancy,'' as defined in Sec. 199.2 of this
part, will be cost-shared on the same basis as the related maternity
care for a period not to exceed 42 days following termination of the
pregnancy and thereafter cost-shared on the basis of the inpatient or
outpatient status of the beneficiary when medically necessary services
and supplies are received.
(17) Biofeedback Therapy. Biofeedback therapy is a technique by
which a person is taught to exercise control over a physiologic process
occurring within the body. By using modern biomedical instruments the
patient learns how a specific physiologic system within his body
operates and how to modify the performance of this particular system.
(i) Benefits Provided. CHAMPUS benefits are payable for services and
supplies in connection with electrothermal, electromyograph and
electrodermal biofeedback therapy when there is documentation that the
patient has undergone an appropriate medical evaluation, that their
present condition is not responding to or no longer responds to other
forms of conventional treatment, and only when provided as treatment for
the following conditions:
(A) Adjunctive treatment for Raynaud's Syndrome.
(B) Adjunctive treatment for muscle re-education of specific muscle
groups or for treating pathological muscle abnormalities of spasticity,
or incapacitating muscle spasm or weakness.
(ii) Limitations. Payable benefits include initial intake
evaluation. Treatment following the initial intake evaluation is limited
to a maximum of 20 inpatient and outpatient biofeedback treatments per
calendar year.
(iii) Exclusions. Benefits are excluded for biofeedback therapy for
the treatment of ordinary muscle tension states or for psychosomatic
conditions. Benefits are also excluded for the rental or purchase of
biofeedback equipment.
(iv) Provider Requirements. A provider of biofeedback therapy must
be a CHAMPUS-authorized provider. (Refer to Sec. 199.6, ``Authorized
Providers). If biofeedback treatment is provided by other than a
physician, the patient must be referred by a physician.
(v) Implementation Guidelines. The Director of OCHAMPUS shall issue
guidelines as are necessary to implement the provision of this
paragraph.
(18) Cardiac rehabilitation. Cardiac rehabilitation is the process
by which individuals are restored to their optimal physical, medical,
and psychological status, after a cardiac event. Cardiac rehabilitation
is often divided into three phases. Phase I begins during inpatient
hospitalization and is managed by the patient's personal physician.
Phase II is a medically supervised outpatient program which begins
following discharge. Phase III is a lifetime maintenance program
emphasizing continuation of physical fitness with periodic followup.
Each phase includes an exercise component, patient education, and risk
factor modification. There may be considerable variation in program
components, intensity, and duration.
(i) Benefits Provided. CHAMPUS benefits are available on an
inpatient or outpatient basis for services and supplies provided in
connection with a cardiac rehabilitation program when ordered by a
physician and provided as treatment for patients who have experienced
the following cardiac events within the preceding twelve (12) months:
(A) Myocardial Infarction.
(B) Coronary Artery Bypass Graft.
(C) Coronary Angioplasty.
(D) Percutaneous Transluminal Coronary Angioplasty
(E) Chronic Stable Angina (see limitations below).
(F) Heart valve surgery.
(G) Heart or Heart-lung Transplantation.
(ii) Limitations. Payable benefits include separate allowance for
the initial evaluation and testing. Outpatient treatment following the
initial intake evaluation and testing is limited to a maximum of thirty-
six (36) sessions per cardiac event, usually provided 3 sessions per
week for twelve (12) weeks. Patients diagnosed with chronic stable
angina are limited to one treatment episode (36 sessions) in a calendar
year.
[[Page 141]]
(iii) Exclusions. Phase III cardiac rehabilitation lifetime
maintenance programs performed at home or in medically unsupervised
settings are not covered.
(iv) Providers. A provider of cardiac rehabilitation services must
be a TRICARE authorized hospital (see Sec. 199.6 (b)(4)(i)) or a
freestanding cardiac rehabilitation facility that meets the requirements
of Sec. 199.6 (f). All cardiac rehabilitation services must be ordered
by a physician.
(v) Payment. Payment for outpatient treatment will be based on an
all inclusive allowable charge per session. Inpatient treatment will be
paid based upon the reimbursement system in place for the hospital where
the services are rendered.
(vi) Implementation Guidelines. The Director of OCHAMPUS shall issue
guidelines as are necessary to implement the provisions of this
paragraph.
(19) Hospice care. Hospice care is a program which provides an
integrated set of services and supplies designed to care for the
terminally ill. This type of care emphasizes palliative care and
supportive services, such as pain control and home care, rather than
cure-oriented services provided in institutions that are otherwise the
primary focus under CHAMPUS. The benefit provides coverage for a humane
and sensible approach to care during the last days of life for some
terminally ill patients.
(i) Benefit coverage. CHAMPUS beneficiaries who are terminally ill
(that is, a life expectancy of six months or less if the disease runs
its normal course) will be eligible for the following services and
supplies in lieu of most other CHAMPUS benefits:
(A) Physician services.
(B) Nursing care provided by or under the supervision of a
registered professional nurse.
(C) Medical social services provided by a social worker who has at
least a bachelor's degree from a school accredited or approved by the
Council on Social Work Education, and who is working under the direction
of a physician. Medical social services include, but are not limited to
the following:
(1) Assessment of social and emotional factors related to the
beneficiary's illness, need for care, response to treatment, and
adjustment to care.
(2) Assessment of the relationship of the beneficiary's medical and
nursing requirements to the individual's home situation, financial
resources, and availability of community resources.
(3) Appropriate action to obtain available community resources to
assist in resolving the beneficiary's problem.
(4) Counseling services that are required by the beneficiary.
(D) Counseling services provided to the terminally ill individual
and the family member or other persons caring for the individual at
home. Counseling, including dietary counseling, may be provided both for
the purpose of training the individual's family or other care-giver to
provide care, and for the purpose of helping the individual and those
caring for him or her to adjust to the individual's approaching death.
Bereavement counseling, which consists of counseling services provided
to the individual's family after the individual's death, is a required
hospice service but it is not reimbursable.
(E) Home health aide services furnished by qualified aides and
homemaker services. Home health aides may provide personal care
services. Aides also may perform household services to maintain a safe
and sanitary environment in areas of the home used by the patient.
Examples of such services are changing the bed or light cleaning and
laundering essential to the comfort and cleanliness of the patient. Aide
services must be provided under the general supervision of a registered
nurse. Homemaker services may include assistance in personal care,
maintenance of a safe and healthy environment, and services to enable
the individual to carry out the plan of care. Qualifications for home
health aides can be found in 42 CFR 484.36.
(F) Medical appliances and supplies, including drugs and
biologicals. Only drugs that are used primarily for the relief of pain
and symptom control related to the individual's terminal illness are
covered. Appliances may include covered durable medical equipment, as
well as other self-help and personal comfort items related to the
[[Page 142]]
palliation or management of the patient's condition while he or she is
under hospice care. Equipment is provided by the hospice for use in the
beneficiary's home while he or she is under hospice care. Medical
supplies include those that are part of the written plan of care.
Medical appliances and supplies are included within the hospice all-
inclusive rates.
(G) Physical therapy, occupational therapy and speech-language
pathology services provided for purposes of symptom control or to enable
the individual to maintain activities of daily living and basic
functional skills.
(H) Short-term inpatient care provided in a Medicare participating
hospice inpatient unit, or a Medicare participating hospital, skilled
nursing facility (SNF) or, in the case of respite care, a Medicaid-
certified nursing facility that additionally meets the special hospice
standards regarding staffing and patient areas. Services provided in an
inpatient setting must conform to the written plan of care. Inpatient
care may be required for procedures necessary for pain control or acute
or chronic symptom management. Inpatient care may also be furnished to
provide respite for the individual's family or other persons caring for
the individual at home. Respite care is the only type of inpatient care
that may be provided in a Medicaid-certified nursing facility. The
limitations on custodial care and personal comfort items applicable to
other CHAMPUS services are not applicable to hospice care.
(ii) Core services. The hospice must ensure that substantially all
core services are routinely provided directly by hospice employees;
i.e., physician services, nursing care, medical social services, and
counseling for individuals and care givers. Refer to paragraphs
(e)(19)(i)(A), (e)(19)(i)(B), (e)(19)(i)(C), and (e)(19)(i)(D) of this
section.
(iii) Non-core services. While non-core services (i.e., home health
aide services, medical appliances and supplies, drugs and biologicals,
physical therapy, occupational therapy, speech-language pathology and
short-term inpatient care) may be provided under arrangements with other
agencies or organizations, the hospice must maintain professional
management of the patient at all times and in all settings. Refer to
paragraphs (e)(19)(i)(E), (e)(19)(i)(F), (e)(19)(i)(G), and
(e)(19)(i)(H) of this section.
(iv) Availability of services. The hospice must make nursing
services, physician services, and drugs and biologicals routinely
available on a 24-hour basis. All other covered services must be made
available on a 24-hour basis to the extent necessary to meet the needs
of individuals for care that is reasonable and necessary for the
palliation and management of the terminal illness and related condition.
These services must be provided in a manner consistent with accepted
standards of practice.
(v) Periods of care. Hospice care is divided into distinct periods
of care. The periods of care that may be elected by the terminally ill
CHAMPUS beneficiary shall be as the Director, TRICARE determines to be
appropriate, but shall not be less than those offered under Medicare's
Hospice Program.
(vi) Conditions for coverage. The CHAMPUS beneficiary must meet the
following conditions/criteria in order to be eligible for the hospice
benefits and services referenced in paragraph (e)(19)(i) of this
section.
(A) There must be written certification in the medical record that
the CHAMPUS beneficiary is terminally ill with a life expectancy of six
months or less if the terminal illness runs its normal course.
(1) Timing of certification. The hospice must obtain written
certification of terminal illness for each of the election periods
described in paragraph (e)(19(vi)(B) of this section, even if a single
election continues in effect for two, three or four periods.
(i) Basic requirement. Except as provided in paragraph
(e)(19(vi)(A)(1)(ii) of this section the hospice must obtain the written
certification no later than two calendar days after the period begins.
(ii) Exception. For the initial 90-day period, if the hospice cannot
obtain the written certifications within two calendar days, it must
obtain oral certifications within two calendar days, and written
certifications no later than
[[Page 143]]
eight calendar days after the period begins.
(2) Sources of certification. Physician certification is required
for both initial and subsequent election periods.
(i) For the initial 90-day period, the hospice must obtain written
certification statements (and oral certification statements if required
under paragraph (e)(19(vi)(A)(i)(ii) of this section) from:
(A) The individual's attending physician if the individual has an
attending physician; and
(B) The medical director of the hospice or the physician member of
the hospice interdisciplinary group.
(ii) For subsequent periods, the only requirement is certification
by one of the physicians listed in paragraph (e)(19)(vi)(A)(2)(i)(B) of
this section.
(B) The terminally ill beneficiary must elect to receive hospice
care for each specified period of time; i.e., the two 90-day periods, a
subsequent 30-day period, and a final period of unlimited duration. If
the individual is found to be mentally incompetent, his or her
representative may file the election statement. Representative means an
individual who has been authorized under State law to terminate medical
care or to elect or revoke the election of hospice care on behalf of a
terminally ill individual who is found to be mentally incompetent.
(1) The episodes of care must be used consecutively; i.e., the two
90-day periods first, then the 30-day period, followed by the final
period. The periods of care may be elected separately at different
times.
(2) The initial election will continue through subsequent election
periods without a break in care as long as the individual remains in the
care of the hospice and does not revoke the election.
(3) The effective date of the election may begin on the first day of
hospice care or any subsequent day of care, but the effective date
cannot be made prior to the date that the election was made.
(4) The beneficiary or representative may revoke a hospice election
at any time, but in doing so, the remaining days of that particular
election period are forfeited and standard CHAMPUS coverage resumes. To
revoke the hospice benefit, the beneficiary or representative must file
a signed statement of revocation with the hospice. The statement must
provide the date that the revocation is to be effective. An individual
or representative may not designate an effective date earlier than the
date that the revocation is made.
(5) If an election of hospice benefits has been revoked, the
individual, or his or her representative may at any time file a hospice
election for any period of time still available to the individual, in
accordance with Sec. 199.4(e)(19)(vi)(B).
(6) A CHAMPUS beneficiary may change, once in each election period,
the designation of the particular hospice from which he or she elects to
receive hospice care. To change the designation of hospice programs the
individual or representative must file, with the hospice from which care
has been received and with the newly designated hospice, a statement
that includes the following information:
(i) The name of the hospice from which the individual has received
care and the name of the hospice from which he or she plans to receive
care.
(ii) The date the change is to be effective.
(7) Each hospice will design and print its own election statement to
include the following information:
(i) Identification of the particular hospice that will provide care
to the individual.
(ii) The individual's or representative's acknowledgment that he or
she has been given a full understanding of the palliative rather than
curative nature of hospice care, as it relates to the individual's
terminal illness.
(iii) The individual's or representative's acknowledgment that he or
she understands that certain other CHAMPUS services are waived by the
election.
(iv) The effective date of the election.
(v) The signature of the individual or representative, and the date
signed.
(8) The hospice must notify the CHAMPUS contractor of the
initiation, change or revocation of any election.
(C) The beneficiary must waive all rights to other CHAMPUS payments
for the duration of the election period for:
[[Page 144]]
(1) Care provided by any hospice program other than the elected
hospice unless provided under arrangements made by the elected hospice;
and
(2) Other CHAMPUS basic program services/benefits related to the
treatment of the terminal illness for which hospice care was elected, or
to a related condition, or that are equivalent to hospice care, except
for services provided by:
(i) The designated hospice;
(ii) Another hospice under arrangement made by the designated
hospice; or
(iii) An attending physician who is not employed by or under
contract with the hospice program.
(3) Basic CHAMPUS coverage will be reinstated upon revocation of the
hospice election.
(D) A written plan of care must be established by a member of the
basic interdisciplinary group assessing the patient's needs. This group
must have at least one physician, one registered professional nurse, one
social worker, and one pastoral or other counselor.
(1) In establishing the initial plan of care the member of the basic
interdisciplinary group who assesses the patient's needs must meet or
call at least one other group member before writing the initial plan of
care.
(2) At least one of the persons involved in developing the initial
plan must be a nurse or physician.
(3) The plan must be established on the same day as the assessment
if the day of assessment is to be a covered day of hospice care.
(4) The other two members of the basic interdisciplinary group--the
attending physician and the medical director or physician designee--must
review the initial plan of care and provide their input to the process
of establishing the plan of care within two calendar days following the
day of assessment. A meeting of group members is not required within
this 2-day period. Input may be provided by telephone.
(5) Hospice services must be consistent with the plan of care for
coverage to be extended.
(6) The plan must be reviewed and updated, at intervals specified in
the plan, by the attending physician, medical director or physician
designee and interdisciplinary group. These reviews must be documented
in the medical records.
(7) The hospice must designate a registered nurse to coordinate the
implementation of the plan of care for each patient.
(8) The plan must include an assessment of the individual's needs
and identification of the services, including the management of
discomfort and symptom relief. It must state in detail the scope and
frequency of services needed to meet the patient's and family's needs.
(E) Complete medical records and all supporting documentation must
be submitted to the CHAMPUS contractor within 30 days of the date of its
request. If records are not received within the designated time frame,
authorization of the hospice benefit will be denied and any prior
payments made will be recouped. A denial issued for this reason is not
an initial determination under Sec. 199.10, and is not appealable.
(vii) Appeal rights under hospice benefit. A beneficiary or provider
is entitled to appeal rights for cases involving a denial of benefits in
accordance with the provisions of this part and Sec. 199.10.
(20) [Reserved]
(21) Home health services. Home health services are covered when
furnished by, or under arrangement with, a home health agency (HHA) that
participates in the TRICARE program, and provides care on a visiting
basis in the beneficiary's home. Covered HHA services are the same as
those provided under Medicare under section 1861(m) of the Social
Security Act (42 U.S.C. 1395x(m)) and 42 CFR part 409, subpart E.
(i) Benefit coverage. Coverage will be extended for the following
home health services subject to the conditions of coverage prescribed in
paragraph (e)(21)(ii) of this section:
(A) Part-time or intermittent skilled nursing care furnished by a
registered nurse or a licensed practical (vocational) nurse under the
supervision of a registered nurse;
(B) Physical therapy, speech-language pathology, and occupational
therapy;
(C) Medical social services under the direction of a physician;
[[Page 145]]
(D) Part-time or intermittent services of a home health aide who has
successfully completed a state-established or other training program
that meets the requirements of 42 CFR Part 484;
(E) Medical supplies, a covered osteoporosis drug (as defined in the
Social Security Act 1861(kk), but excluding other drugs and biologicals)
and durable medical equipment;
(F) Medical services provided by an interim or resident-in-training
of a hospital, under an approved teaching program of the hospital in the
case of an HHA that is affiliated or under common control of a hospital;
and
(G) Services at hospitals, SNFs or rehabilitation centers when they
involve equipment too cumbersome to bring to the home but not including
transportation of the individual in connection with any such item or
service.
(ii) Conditions for Coverage. The following conditions/criteria must
be met in order to be eligible for the HHA benefits and services
referenced in paragraph (e)(21)(i) of this section:
(A) The person for whom the services are provided is an eligible
TRICARE beneficiary.
(B) The HHA that is providing the services to the beneficiary has in
effect a valid agreement to participate in the TRICARE program.
(C) Physician certifies the need for home health services because
the beneficiary is homebound.
(D) The services are provided under a plan of care established and
approved by a physician.
(1) The plan of care must contain all pertinent diagnoses, including
the patient's mental status, the types of services, supplies, and
equipment required, the frequency of visits to be made, prognosis,
rehabilitation potential, functional limitations, activities permitted,
nutritional requirements, all medications and treatments, safety
measures to protect against injury, instructions for timely discharge or
referral, and any additional items the HHA or physician chooses to
include.
(2) The orders on the plan of care must specify the type of services
to be provided to the beneficiary, both with respect to the professional
who will provide them and the nature of the individual services, as well
as the frequency of the services.
(E) The beneficiary must need skilled nursing care on an
intermittent basis or physical therapy or speech-language pathology
services, or have continued need for occupational therapy after the need
for skilled nursing care, physical therapy, or speech-language pathology
services has ceased.
(F) The beneficiary must receive, and an HHA must provide, a
patient-specific, comprehensive assessment that:
(1) Accurately reflects the patient's current health status and
includes information that may be used to demonstrate the patient's
progress toward achievement of desired outcomes;
(2) Identifies the beneficiary's continuing need for home care and
meets the beneficiary's medical, nursing, rehabilitative, social, and
discharge planning needs.
(3) Incorporates the use of the current version of the Outcome and
Assessment Information Set (OASIS) items, using the language and
groupings of the OASIS items, as specified by the Director, TRICARE
Management Activity.
(G) TRICARE is the appropriate payer.
(H) The services for which payment is claimed are not otherwise
excluded from payment.
(I) Any other conditions of coverage/participation that may be
required under Medicare's HHA benefit; i.e., coverage guidelines as
prescribed under Sections 1861(o) and 1891 of the Social Security Act
(42 U.S.C. 1395x(o) and 1395bbb), 42 CFR Part 409, Subpart E and 42 CFR
Part 484.
(22) Pulmonary rehabilitation. TRICARE benefits are payable for
beneficiaries whose conditions are considered appropriate for pulmonary
rehabilitation according to guidelines adopted by the Executive
Director, TMA, or a designee.
(23) A speech generating device (SGD) as defined in Sec. 199.2 of
this part is covered as a voice prosthesis. The prosthesis provisions
found in paragraph (d)(3)(vii) of this section apply.
(24) A hearing aid, but only for a dependent of a member of the
uniformed services on active duty and only if the dependent has a
profound hearing loss
[[Page 146]]
as defined in Sec. 199.2 of this part. Medically necessary and
appropriate services and supplies, including hearing examinations,
required in connection with this hearing aid benefit are covered.
(25) Rehabilitation therapy as defined in Sec. 199.2 of this part
to improve, restore, or maintain function, or to minimize or prevent
deterioration of function, of a patient when prescribed by a physician.
The rehabilitation therapy must be medically necessary and appropriate
medical care, rendered by an authorized provider, necessary to the
establishment of a safe and effective maintenance program in connection
with a specific medical condition, and must not be custodial care or
otherwise excluded from coverage.
(26) National Institutes of Health clinical trials. By law, the
general prohibition against CHAMPUS cost-sharing of unproven drugs,
devices, and medical treatments or procedures may be waived in
connection with clinical trials sponsored or approved by the National
Institutes of Health National Cancer Institute if it is determined that
such a waiver will promote access by covered beneficiaries to promising
new treatments and contribute to the development of such treatments. A
waiver shall only be exercised as authorized under this paragraph.
(i) Demonstration waiver. A waiver may be granted through a
demonstration project established in accordance with Sec. 199.1(o) of
this part.
(ii) Continuous waiver. (A) General. As a result of a demonstration
project under which a waiver has been granted in connection with a
National Institutes of Health National Cancer Institute clinical trial,
a determination may be made that it is in the best interest of the
government and CHAMPUS beneficiaries to end the demonstration and
continue to provide a waiver for CHAMPUS cost-sharing of the specific
clinical trial. Only those specified clinical trials identified under
paragraph (e)(26)(ii) of this section have been authorized a continuous
waiver under CHAMPUS.
(B) National Cancer Institute (NCI) sponsored cancer prevention,
screening, and early detection clinical trials. A continuous waiver
under paragraph (e)(26) of this regulation has been granted for CHAMPUS
cost-sharing for those CHAMPUS-eligible patients selected to participate
in NCI sponsored Phase II and Phase III studies for the prevention and
treatment of cancer. Additionally, Phase I studies may be approved on a
case by case basis when the requirements below are met.
(1) TRICARE will cost-share all medical care and testing required to
determine eligibility for an NCI-sponsored trial, including the
evaluation for eligibility at the institution conducting the NCI-
sponsored study. TRICARE will cost-share all medical care required as a
result of participation in NCI-sponsored studies. This includes
purchasing and administering all approved chemotherapy agents (except
for NCI-funded investigational drugs), all inpatient and outpatient
care, including diagnostic and laboratory services not otherwise
reimbursed under an NCI grant program if the following conditions are
met:
(i) The provider seeking treatment for a CHAMPUS-eligible patient in
an NCI approved protocol has obtained pre-authorization for the proposed
treatment before initial evaluation; and,
(ii) Such treatments are NCI sponsored Phase I, Phase II or Phase
III protocols; and
(iii) The patient continues to meet entry criteria for said
protocol; and,
(iv) The institutional and individual providers are CHAMPUS
authorized providers; and,
(v) The requirements for Phase I protocols in paragraph
(e)(26)(ii)(B)(2) of this section are met:
(2) Requirements for Phase I protocols are:
(i) Standard treatment has been or would be ineffective, does not
exist, or there is no superior non-investigational treatment
alternative; and,
(ii) The available clinical or preclinical data provide a reasonable
expectation that the treatment will be at least as effective as the non-
investigational alternative; and,
(iii) The facility and personnel providing the treatment are capable
of doing so by virtue of their experience, training, and volume of
patients treated to maintain expertise; and,
[[Page 147]]
(iv) The referring physician has concluded that the enrollee's
participation in such a trial would be appropriate based upon the
satisfaction of paragraphs (e)(26)(ii)(B)(2)(i) through (iii) of this
section.
(3) TRICARE will not provide reimbursement for care rendered in the
National Institutes of Health Clinical Center or costs associated with
non-treatment research activities associated with the clinical trials.
(4) Cost-shares and deductibles applicable to CHAMPUS will also
apply under the NCI-sponsored clinical trials.
(5) The Director, TRICARE (or designee), shall issue procedures and
guidelines establishing NCI-sponsorship of clinical trials and the
administrative process by which individual patients apply for and
receive cost-sharing under NCI-sponsored cancer clinical trials.
(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 sexually
transmitted disease and HIV, and medical services and supplies for
prevention of sexually transmitted diseases, HIV, pregnancy, and
counseling services.
(28) Preventive care. The following preventive services are covered:
(i) Cervical, breast, colon and prostate cancer screenings according
to standards issued by the Director, TRICARE Management Activity, based
on guidelines from the U.S. Department of Health and Human Services. The
standards may establish a specific schedule that includes frequency, age
specifications, and gender of the beneficiary, as appropriate.
(ii) Immunizations as recommended by the Centers for Disease Control
and Prevention (CDC).
(iii) Well-child visits for children under 6 years of age as
described in paragraph (c)(3)(xi) of this section.
(iv) Health promotion and disease prevention visits (which may
include all of the services provided pursuant to Sec. 199.17(f)(2)) for
beneficiaries 6 years of age or older may be provided in connection with
immunizations and cancer screening examinations authorized by paragraphs
(e)(28)(i) and (ii) of this section).
(v) Breastfeeding support, supplies (including breast pumps and
associated equipment), and counseling.
(29) Physical examinations. In addition to the health promotion and
disease prevention visits authorized in paragraph (e)(28)(iv) of this
section, the following physical examinations are specifically
authorized:
(i) Physical examinations for dependents of Active Duty military
personnel who are traveling outside the United States. The examination
must be required because of an Active Duty member's assignment and the
travel is being performed under orders issued by a Uniformed Service.
Any immunizations required for a dependent of an Active Duty member to
travel outside of the United States is covered as a preventive service
under paragraph (e)(28) of this section.
(ii) Physical examinations for beneficiaries ages 5-11 that are
required for school enrollment and that are provided on or after October
30, 2000.
(iii) Other types of physical examinations not listed above are
excluded including routine, annual, or employment-requested physical
examinations and routine screening procedures that are not part of
medically necessary care or treatment or otherwise specifically
authorized by statute.
(30) Smoking cessation program. The TRICARE smoking cessation
program is a behavioral modification program to assist eligible
beneficiaries who desire to quit smoking. The program consists of a
pharmaceutical benefit; smoking cessation counseling; access to a toll-
free quit line for non-medical assistance; and, access to print and
internet web-based tobacco cessation materials.
(i) Availability. The TRICARE smoking cessation program is available
to all TRICARE beneficiaries who reside in one of the 50 United States
or the District of Columbia who are not eligible for Medicare benefits
authorized
[[Page 148]]
under Title XVIII of the Social Security Act. In addition, pursuant to
Sec. 199.17, if authorized by the Assistant Secretary of Defense
(Health Affairs), the TRICARE smoking cessation program may be
implemented in whole or in part in areas outside the 50 states and the
District of Columbia for active duty members and their dependents who
are enrolled in TRICARE Prime (overseas Prime beneficiaries). In such
cases, the Assistant Secretary of Defense (Health Affairs) may also
authorize modifications to the TRICARE smoking cessation program rules
and procedures as may be appropriate to the overseas area involved.
Notice of the use of this authority, not otherwise mentioned in this
paragraph (e)(30), shall be published in the Federal Register.
(ii) Benefits. There is no requirement for an eligible beneficiary
to be diagnosed with a smoking related illness to access benefits under
this program. The specific benefits available under the TRICARE smoking
cessation program are:
(A) Pharmaceutical agents. Products available under this program are
identified through the DoD Pharmacy and Therapeutics Committee,
consistent with the DoD Uniform Formulary in Sec. 199.21. Smoking
cessation pharmaceutical agents, including FDA-approved over-the-counter
(OTC) pharmaceutical agents, are available through the TRICARE Mail
Order Pharmacy (TMOP) or the MTF at no cost to the beneficiary. Smoking
cessation pharmaceuticals through the TRICARE program will not be
available at any retail pharmacies. A prescription from a TRICARE-
authorized provider is required to obtain any pharmaceutical agent used
for smoking cessation, including OTC agents. For overseas Prime
beneficiaries, pharmaceutical agents may be provided either in the MTF
or through the TMOP where such facility or service is available.
(B) Face-to-face smoking cessation counseling. Both individual and
group smoking cessation counseling are covered. The number and mix of
face-to-face counseling sessions covered under this program shall be
determined by the Director, TMA; however, shall not exceed the limits
established in paragraph (e)(30)(iii) of this section. A TRICARE-
authorized provider listed in Sec. 199.6 must render all counseling
sessions.
(C) Toll-free quit line. Access to a non-medical toll-free quit line
7 days a week, 24 hours a day will be available. The quit line will be
staffed with smoking cessation counselors trained to assess a
beneficiary's readiness to quit, identify barriers to quitting, and
provide specific suggested actions and motivational counseling to
enhance the chances of a successful quit attempt. When appropriate, quit
line counselors will refer beneficiaries to a TRICARE-authorized
provider for medical intervention. The quit line may, at the discretion
of the Director, TMA, include the opportunity for the beneficiary to
request individual follow-up contact initiated by quit line personnel;
however, the beneficiary is not required to participate in the quit line
initiated follow-up. Printed educational materials on the effects of
tobacco use will be provided to the beneficiary upon request. This
benefit may be made available to overseas Prime beneficiaries should the
ASD(HA) exercise his authority to do so and provide appropriate notice
in the Federal Register.
(D) Web-based resources. Downloadable educational materials on the
effects of tobacco use will be available through the internet or other
electronic media. This service may be made available to overseas Prime
beneficiaries in all locations where web based resources are available.
There shall be no requirement to create web based resources in any
geographic area in order to make this service available.
(f) Beneficiary or sponsor liability--(1) General. As stated in the
introductory paragraph to this section, the Basic Program is essentially
a supplemental program to the Uniformed Services direct medical care
system. To encourage use of the Uniformed Services direct medical care
system wherever its facilities are available and appropriate, the Basic
Program benefits are designed so that it is to the financial advantage
of a CHAMPUS beneficiary or sponsor to use the direct medical care
system. When medical care is received from civilian sources, a CHAMPUS
beneficiary is responsible for payment
[[Page 149]]
of certain deductible and cost-sharing amounts in connection with
otherwise covered services and supplies. By statute, this joint
financial responsibility between the beneficiary or sponsor and CHAMPUS
is more favorable for dependents of members than for other classes of
beneficiaries.
(2) Dependents of members of the Uniformed Services. CHAMPUS
beneficiary or sponsor liability set forth for dependents of members is
as follows:
(i) Annual calendar year deductible for outpatient services and
supplies.
(A) For care rendered all eligible beneficiaries prior to April 1,
1991, or when the active duty sponsor's pay grade is E-4 or below,
regardless of the date of care:
(1) Individual Deductible: Each beneficiary is liable for the first
fifty dollars ($50.00) of the CHAMPUS-determined allowable amount on
claims for care provided in the same calendar year.
(2) Family Deductible: The total deductible amount for all members
of a family with the same sponsor during one calendar year shall not
exceed one hundred dollars ($100.00).
(B) For care rendered on or after April 1, 1991, for all CHAMPUS
beneficiaries except dependents of active duty sponsors in pay grades E-
4 or below.
(1) Individual Deductible: Each beneficiary is liable for the first
one hundred and fifty dollars ($150.00) of the CHAMPUS-determined
allowable amount on claims for care provided in the same calendar year.
(2) Family Deductible: The total deductible amount for all members
of a family with the same sponsor during one calendar year shall not
exceed three hundred dollars ($300.00).
(C) CHAMPUS-approved Ambulatory Surgical Centers or Birthing
Centers. No deductible shall be applied to allowable amounts for
services or items rendered to active duty for authorized NATO
dependents.
(D) Allowable Amount does not exceed Deductible Amount. If calendar
year allowable amounts for two or more beneficiary members of a family
total less than $100.00 ($300.00 if paragraph (f) (2)(i)(B)(2) of this
section applies), but more of the beneficiary members submit a claim for
over $50.00 ($150.00 if paragraph (f)(2)(i)(B)(1) of this section
applies), neither the family nor the individual deductible will have
been met and no CHAMPUS benefits are payable.
(E) For any family the outpatient deductible amounts will be applied
sequentially as the CHAMPUS claims are processed.
(F) If the calendar year outpatient deductible under either
paragraphs (f)(2)(i)(A) or (f)(2)(i)(B) of this section has been met by
a beneficiary or a family through the submission of a claim or claims to
a CHAMPUS fiscal intermediary in another geographic location from the
location where a current claim is being submitted, the beneficiary or
sponsor must obtain a deductible certificate from the CHAMPUS fiscal
intermediary where the applicable beneficiary or family calendar year
deductible was met. Such deductible certificate must be attached to the
current claim being submitted for benefits. Failure to obtain a
deductible certificate under such circumstances will result in a second
beneficiary or family calendar year deductible being applied. However,
this second deductible may be reimbursed once appropriate documentation,
as described in paragraph (f)(2)(i)(F) of this section, is supplied to
the CHAMPUS fiscal intermediary applying the second deductible.
(G) Notwithstanding the dates specified in paragraphs (f)(2)(i)(A)
and (f)(B)(2)(i) of this section in the case of dependents of active
duty members of rank E-5 or above with Persian Gulf Conflict service,
dependents of service members who were killed in the Gulf, or who died
subsequent to Gulf service, and of members who retired prior to October
1, 1991, after having served in the Gulf War, the deductible shall be
the amount specified in paragraph (f)(2)(i)(A) of this section for care
rendered prior to October 1, 1991, and the amount specified in paragraph
(f)(2)(i)(B) of this section for care rendered on or after October 1,
1991.
(H) The Director, TRICARE Management Activity, may waive the annual
individual or family calendar year deductible for dependents of a
Reserve Component member who is called or ordered to active duty for a
period of
[[Page 150]]
more than 30 days or a National Guard member who is called or ordered to
fulltime federal National Guard duty for a period of more than 30 days
in support of a contingency operation (as defined in 10 U.S.C.
101(a)(13)). For purposes of this paragraph, a dependent is a lawful
husband or wife of the member and a child is defined in paragraphs
(b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and (4) of Sec.
199.3.
(ii) Inpatient cost-sharing. Dependents of members of the Uniformed
Services are responsible for the payment of the first $25 of the
allowable institutional costs incurred with each covered inpatient
admission to a hospital or other authorized institutional provider
(refer to Sec. 199.6, including inpatient admission to a residential
treatment center, substance use disorder rehabilitation facility
residential treatment program, or skilled nursing facility), or the
amount the beneficiary or sponsor would have been charged had the
inpatient care been provided in a Uniformed Service hospital, whichever
is greater.
Note: The Secretary of Defense (after consulting with the Secretary
of Health and Human Services and the Secretary of Transportation)
prescribes the fair charges for inpatient hospital care provided through
Uniformed Services medical facilities. This determination is made each
calendar year.
(A) Inpatient cost-sharing payable with each separate inpatient
admission. A separate cost-sharing amount (as described in paragraph
(f)(2) of this section) is payable for each inpatient admission to a
hospital or other authorized institution, regardless of the purpose of
the admission (such as medical or surgical), regardless of the number of
times the beneficiary is admitted, and regardless of whether or not the
inpatient admissions are for the same or related conditions; except that
successive inpatient admissions shall be deemed one inpatient
confinement for the purpose of computing the inpatient cost-share
payable, provided not more than 60 days have elapsed between the
successive admissions. However, notwithstanding this provision, all
admissions related to a single maternity episode shall be considered one
confinement, regardless of the number of days between admissions (refer
to paragraph (b) of this section).
(B) Multiple family inpatient admissions. A separate cost-sharing
amount is payable for each inpatient admission, regardless of whether or
not two or more beneficiary members of a family are admitted at the same
time or from the same cause (such as an accident). A separate
beneficiary inpatient cost-sharing amount must be applied for each
separate admission on each beneficiary member of the family.
(C) Newborn patient in his or her own right. When a newborn infant
remains as an inpatient in his or her own right (usually after the
mother is discharged), the newborn child becomes the beneficiary and
patient and the extended inpatient stay becomes a separate inpatient
admission. In such a situation, a new, separate inpatient cost-sharing
amount is applied. If a multiple birth is involved (such as twins or
triplets) and two or more newborn infants become patients in their own
right, a separate inpatient cost-sharing amount must be applied to the
inpatient stay for each newborn child who has remained as an inpatient
in his or her own right.
(iii) Outpatient cost-sharing. Dependents of members of the
Uniformed Services are responsible for payment of 20 percent of the
CHAMPUS-determined allowable cost or charge beyond the annual calendar
year deductible amount (as described in paragraph (f)(2)(i) of this
section) for otherwise covered services or supplies provided on an
outpatient basis by authorized providers.
(iv) Ambulatory surgery. Notwithstanding the above provisions
pertaining to outpatient cost-sharing, dependents of members of the
Uniformed Services are responsible for payment of $25 for surgical care
that is authorized and received while in an outpatient status and that
has been designated in guidelines issued by the Director, OCHAMPUS, or a
designee.
(v) [Reserved]
(vi) Transitional Assistance Management Program (TAMP). Members of
the Armed Forces (and their family members) who are eligible for TAMP
under paragraph 199.3(e) of this Part are subject to the same
beneficiary or sponsor
[[Page 151]]
liability as family members of members of the uniformed services
described in this paragraph (f)(2).
(3) Former members and dependents of former members. CHAMPUS
beneficiary liability set forth for former members and dependents of
former members is as follows:
(i) Annual calendar year deductible for outpatient services or
supplies. The annual calendar year deductible for otherwise covered
outpatient services or supplies provided former members and dependents
of former members is the same as the annual calendar year outpatient
deductible applicable to dependents of active duty members of rank E-5
or above (refer to paragraph (f)(2)(i)(A) or (B) of this section).
(ii) Inpatient cost-sharing. Inpatient admissions to a hospital or
other authorized institutional provider (refer to Sec. 199.6, including
inpatient admission to a residential treatment center, substance use
disorder rehabilitation facility residential treatment program, or
skilled nursing facility) shall be cost-shared on an inpatient basis.
The cost-sharing for inpatient services subject to the TRICARE DRG-based
payment system and the TRICARE per diem system shall be the lesser of
the respective per diem copayment amount multiplied by the total number
of days in the hospital (except for the day of discharge under the DRG
payment system), or 25 percent of the hospital's billed charges. For
other inpatient services, the cost-share shall be 25% of the CHAMPUS-
determined allowable charges.
(iii) Outpatient cost-sharing. Former members and dependents of
former members are responsible for payment of 25 percent of the CHAMPUS-
determined allowable costs or charges beyond the annual calendar year
deductible amount (as described in paragraph (f)(2)(i) of this section)
for otherwise covered services or supplies provided on an outpatient
basis by authorized providers.
(4) Former spouses. CHAMPUS beneficiary liability for former spouses
eligible under the provisions set forth in Sec. 199.3 of this part is
as follows:
(i) Annual calendar year deductible for outpatient services or
supplies. An eligible former spouse is responsible for the payment of
the first $150.00 of the CHAMPUS-determined reasonable costs or charges
for otherwise covered outpatient services or supplies provided in any
one calendar year. (Except for services received prior to April 1, 1991,
the deductible amount is $50.00). The former spouse cannot contribute
to, nor benefit from, any family deductible of the member or former
member to whom the former spouse was married or of any CHAMPUS-eligible
children.
(ii) Inpatient cost-sharing. Eligible former spouses are responsible
for payment of cost-sharing amounts the same as those required for
former members and dependents of former members.
(iii) Outpatient cost-sharing. Eligible former spouses are
responsible for payment of 25 percent of the CHAMPUS-determined
reasonable costs or charges beyond the annual calendar year deductible
amount for otherwise covered services or supplies provided on an
outpatient basis by authorized providers.
(5) Cost-Sharing under the Military-Civilian Health Services
Partnership Program. Cost-sharing is dependent upon the type of
partnership program entered into, whether external or internal. (See
paragraph (p) of Sec. 199.1, for general requirements of the Military-
Civilian Health Services Partnership Program.)
(i) External Partnership Agreement. Authorized costs associated with
the use of the civilian facility will be financed through CHAMPUS under
the normal cost-sharing and reimbursement procedures applicable under
CHAMPUS.
(ii) Internal Partnership Agreement. Beneficiary cost-sharing under
internal agreements will be the same as charges prescribed for care in
military treatment facilities.
(6)-(7) [Reserved]
(8) Cost-sharing for services provided under special discount
arrangements--(i) General rule. With respect to services determined by
the Director, OCHAMPUS (or designee) to be covered by Sec. 199.14(e),
the Director, OCHAMPUS (or designee) has authority to establish, as an
exception to the cost-sharing amount normally required pursuant to this
section, a different cost-
[[Page 152]]
share amount that appropriately reflects the application of the
statutory cost-share to the discount arrangement.
(ii) Specific applications. The following are examples of
applications of the general rule; they are not all inclusive.
(A) In the case of services provided by individual health care
professionals and other noninstitutional providers, the cost-share shall
be the usual percentage of the CHAMPUS allowable charge determined under
Sec. 199.14(e).
(B) In the case of services provided by institutional providers
normally paid on the basis of a pre-set amount (such as DRG-based amount
under Sec. 199.14(a)(1) or per-diem amount under Sec. 199.14(a)(2)),
if the discount rate is lower than the pre-set rate, the cost-share
amount that would apply for a beneficiary other than an active duty
dependent pursuant to the normal pre-set rate would be reduced by the
same percentage by which the pre-set rate was reduced in setting the
discount rate.
(9) Waiver of deductible amounts or cost-sharing not allowed--(i)
General rule. Because deductible amounts and cost sharing are
statutorily mandated, except when specifically authorized by law (as
determined by the Director, OCHAMPUS), a provider may not waive or
forgive beneficiary liability for annual deductible amounts or inpatient
or outpatient cost sharing, as set forth in this section.
(ii) Exception for bad debts. This general rule is not violated in
cases in which a provider has made all reasonable attempts to effect
collection, without success, and determines in accordance with generally
accepted fiscal management standards that the beneficiary liability in a
particular case is an uncollectible bad debt.
(iii) Remedies for noncompliance. Potential remedies for
noncompliance with this requirement include:
(A) A claim for services regarding which the provider has waived the
beneficiary's liability may be disallowed in full, or, alternatively,
the amount payable for such a claim may be reduced by the amount of the
beneficiary liability waived.
(B) Repeated noncompliance with this requirement is a basis for
exclusion of a provider.
(10) Catastrophic loss protection for basic program benefits.
Calendar year limits, or catastrophic caps, on the amounts beneficiaries
are required to pay are established as follows:
(i) Dependents of active duty members. The maximum family liability
is $1,000 for deductibles and cost-shares based on allowable charges for
Basic Program services and supplies received in a calendar year.
(ii) All other beneficiaries. For all other categories of
beneficiary families (including those eligible under CHAMPVA) the
calendar year cap is $3,000.
(iii) Payment after cap is met. After a family has paid the maximum
cost-share and deductible amounts (dependents of active duty members
$1,000 and all others $3,000), for a calendar year, CHAMPUS will pay
allowable amounts for remaining covered services through the end of that
calendar year.
Note to paragraph (f)(10): Under the Defense Authorization Act for
Fiscal Year 2001, the cap for beneficiaries other than dependents of
active duty members was reduced from $7,500 to $3,000 effective October
30, 2000. Prior to this, the Defense Authorization Act for Fiscal Year
1993 reduced this cap from $10,000 to $7,500 on October 1, 1992. The cap
remains at $1,000 for dependents of active duty members.
(11) Beneficiary or sponsor liability under the Pharmacy Benefits
Program. Beneficiary or sponsor liability under the Pharmacy Benefits
Program is addressed in Sec. 199.21.
(12) Elimination of cost-sharing for certain preventive services.
(i) Effective for dates of service on or after October 14, 2008,
beneficiaries, subject to the limitation in paragraph (f)(12)(iii) of
this section, shall not pay any cost-share for preventive services
listed in paragraph (e)(28)(i) through (iv) of this section. The
beneficiary shall not be required to pay any portion of the cost of
these preventive services even if the beneficiary has not satisfied the
deductible for that year.
(ii) Beneficiaries who paid a cost-share for preventive services
listed in paragraph (e)(28)(i) through (iv) of this section on or after
October 14, 2008,
[[Page 153]]
may request reimbursement until January 28, 2013 according to procedures
established by the Director, TRICARE Management Activity.
(iii) This elimination of cost-sharing for preventive services does
not apply to any beneficiary who is a Medicare-eligible beneficiary. For
purposes of this section, the term ``Medicare-eligible'' beneficiary is
defined in 10 U.S.C. 1111(b) and refers to a person eligible for
Medicare Part A.
(iv) Appropriate copayments and deductibles will apply for all
services not listed in paragraph (e)(28) of this section, whether
considered preventive in nature or not.
(13) Special transition rule for the last quarter of calendar year
2017. In order to transition deductibles and catastrophic caps from a
fiscal year basis to a calendar year basis, the deductible amount and
the catastrophic cap amount specified in paragraph (f) of this section
will be applicable to the 15-month period of October 1, 2016 through
December 31, 2017.
(g) Exclusions and limitations. In addition to any definitions,
requirements, conditions, or limitations enumerated and described in
other sections of this part, the following specifically are excluded
from the Basic Program:
(1) Not medically or psychologically necessary. Services and
supplies that are not medically or psychologically necessary for the
diagnosis or treatment of a covered illness (including mental disorder,
to include substance use disorder) or injury, for the diagnosis and
treatment of pregnancy or well-baby care except as provided in the
following paragraph.
(2) Unnecessary diagnostic tests. X-ray, laboratory, and
pathological services and machine diagnostic tests not related to a
specific illness or injury or a definitive set of symptoms except for
cancer screening mammography and cancer screening papanicolaou (PAP)
tests provided under the terms and conditions contained in the
guidelines adopted by the Director, OCHAMPUS.
(3) Institutional level of care. Services and supplies related to
inpatient stays in hospitals or other authorized institutions above the
appropriate level required to provide necessary medical care.
(4) Diagnostic admission. Services and supplies related to an
inpatient admission primarily to perform diagnostic tests, examinations,
and procedures that could have been and are performed routinely on an
outpatient basis.
Note: If it is determined that the diagnostic x-ray, laboratory, and
pathological services and machine tests performed during such admission
were medically necessary and would have been covered if performed on an
outpatient basis, CHAMPUS benefits may be extended for such diagnostic
procedures only, but cost-sharing will be computed as if performed on an
outpatient basis.
(5) Unnecessary postpartum inpatient stay, mother or newborn.
Postpartum inpatient stay of a mother for purposes of staying with the
newborn infant (usually primarily for the purpose of breast feeding the
infant) when the infant (but not the mother) requires the extended stay;
or continued inpatient stay of a newborn infant primarily for purposes
of remaining with the mother when the mother (but not the newborn
infant) requires extended postpartum inpatient stay.
(6) Therapeutic absences. Therapeutic absences from an inpatient
facility, except when such absences are specifically included in a
treatment plan approved by the Director, OCHAMPUS, or a designee. For
cost-sharing provisions refer to Sec. 199.14, paragraph (f)(3).
(7) Custodial care. Custodial care as defined in Sec. 199.2.
(8) Domiciliary care. Domiciliary care as defined in Sec. 199.2.
(9) Rest or rest cures. Inpatient stays primarily for rest or rest
cures.
(10) Amounts above allowable costs or charges. Costs of services and
supplies to the extent amounts billed are over the CHAMPUS determined
allowable cost or charge, as provided for in Sec. 199.14.
(11) No legal obligation to pay, no charge would be made. Services
or supplies for which the beneficiary or sponsor has no legal obligation
to pay; or for which no charge would be made if the beneficiary or
sponsor was not eligible under CHAMPUS; or whenever CHAMPUS is a
secondary payer for claims subject to the CHAMPUS DRG-based payment
system, amounts, when combined with the primary payment, which would be
in excess of charges (or
[[Page 154]]
the amount the provider is obligated to accept as payment in full, if it
is less than the charges).
(12) Furnished without charge. Services or supplies furnished
without charge.
(13) Furnished by local, state, or Federal Government. Services and
supplies paid for, or eligible for payment, directly or indirectly by a
local, state, or Federal Government, except as provided under CHAMPUS,
or by government hospitals serving the general public, or medical care
provided by a Uniformed Service medical care facility, or benefits
provided under title XIX of the Social Security Act (Medicaid) (refer to
Sec. 199.8 of this part).
(14) Study, grant, or research programs. Services and supplies
provided as a part of or under a scientific or medical study, grant, or
research program.
(15) Unproven drugs, devices, and medical treatments or procedures.
By law, CHAMPUS can only cost-share medically necessary supplies and
services. Any drug, device, or medical treatment or procedure, the
safety and efficacy of which have not been established, as described in
this paragraph (g)(15), is unproved and cannot be cost-shared by CHAMPUS
except as authorized under paragraph 199.4(e)(26) of this part.
(i) A drug, device, or medical treatment or procedure is unproven:
(A) If the drug or device cannot be lawfully marketed without the
approval or clearance of the United States Food and Drug Administration
(FDA) and approval or clearance for marketing has not been given at the
time the drug or device is furnished to the patient.
Note: Although the use of drugs and medicines not approved by the
FDA for commercial marketing, that is for use by humans, (even though
permitted for testing on humans) is excluded from coverage as unproven,
drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938
may be covered by CHAMPUS as if FDA approved.
Certain cancer drugs, designated as Group C drugs (approved and
distributed by the National Cancer Institute) and Treatment
Investigational New Drugs (INDs), are not covered under CHAMPUS because
they are not approved for commercial marketing by the FDA. However,
medical care related to the use of Group C drugs and Treatment INDs can
be cost-shared under CHAMPUS when the patient's medical condition
warrants their administration and the care is provided in accordance
with generally accepted standards of medical practice.
CHAMPUS will consider coverage of off-label uses of drugs and
devices that meet the definition of Off-Label Use of a Drug or Device in
Sec. 199.2(b). Approval for reimbursement of off-label uses requires
review for medical necessity and also requires demonstrations from
medical literature, national organizations, or technology assessment
bodies that the off-label use of the drug or device is safe, effective,
and in accordance with nationally accepted standards of practice in the
medical community.
(B) If a medical device (as defined by 21 U.S.C. 321(h)) with an
Investigational Device Exemption (IDE) approved by the Food and Drug
Administration is categorized by the FDA as experimental/investigational
(FDA Category A).
Note: CHAMPUS will consider for coverage a device with an FDA-
approved IDE categorized by the FDA as non-experimental/investigational
(FDA Category B) for CHAMPUS beneficiaries participating in FDA approved
clinical trials. Coverage of any such Category B device is dependent on
its meeting all other requirements of the laws and rules governing
CHAMPUS and upon the beneficiary involved meeting the FDA-approved IDE
study protocols.
(C) Unless reliable evidence shows that any medical treatment or
procedure has been the subject of well-controlled studies of clinically
meaningful endpoints, which have determined its maximum tolerated dose,
its toxicity, its safety, and its efficacy as compared with standard
means of treatment or diagnosis. (See the definition of reliable
evidence in Sec. 199.2 of this part for the procedures used in
determining if a medical treatment or procedure is unproven.)
(D) If reliable evidence shows that the consensus among experts
regarding the medical treatment or procedure is that further studies or
clinical trials are necessary to determine its maximum tolerated doses,
its toxicity, its safety, or its effectiveness as compared with the
standard means of treatment or diagnosis (see the definition of reliable
evidence in Sec. 199.2 for the procedures used in determining if a
medical treatment or procedure is unproven).
(ii) CHAMPUS benefits for rare diseases are reviewed on a case-by-
case
[[Page 155]]
basis by the Director, Office of CHAMPUS, or a designee. In reviewing
the case, the Director, or a designee, may consult with any or all of
the following sources to determine if the proposed therapy is considered
safe and effective:
(A) Trials published in refereed medical literature.
(B) Formal technology assessments.
(C) National medical policy organization positions.
(D) National professional associations.
(E) National expert opinion organizations.
(iii) Care excluded. This exclusion from benefits includes all
services directly related to the unproven drug, device, or medical
treatment or procedure. However, CHAMPUS may cover services or supplies
when there is no logical or causal relationship between the unproven
drug, device or medical treatment or procedure and the treatment at
issue or where such a logical or causal relationship cannot be
established with a sufficient degree of certainty. This CHAMPUS coverage
is authorized in the following circumstances:
(A) Treatment that is not related to the unproven drug, device or
medical treatment or procedure; e.g., medically necessary in the absence
of the unproven treatment.
(B) Treatment which is necessary follow-up to the unproven drug,
device or medical treatment or procedure but which might have been
necessary in the absence of the unproven treatment.
(16) Immediate family, household. Services or supplies provided or
prescribed by a member of the beneficiary's immediate family, or a
person living in the beneficiary's or sponsor's household.
(17) Double coverage. Services and supplies that are (or are
eligible to be) payable under another medical insurance or program,
either private or governmental, such as coverage through employment or
Medicare (refer to Sec. 199.8 of this part).
(18) Nonavailability Statement required. Services and supplies
provided under circumstances or in geographic locations requiring a
Nonavailability Statement (DD Form 1251), when such a statement was not
obtained.
(19) Preauthorization required. Services or supplies which require
preauthorization if preauthorization was not obtained. Services and
supplies which were not provided according to the terms of the
preauthorization. The Director, OCHAMPUS, or a designee, may grant an
exception to the requirement for preauthorization if the services
otherwise would be payable except for the failure to obtain
preauthorization.
(20) Psychoanalysis or psychotherapy, part of education.
Psychoanalysis or psychotherapy provided to a beneficiary or any member
of the immediate family that is credited towards earning a degree or
furtherance of the education or training of a beneficiary or sponsor,
regardless of diagnosis or symptoms that may be present.
(21) Runaways. Inpatient stays primarily to control or detain a
runaway child, whether or not admission is to an authorized institution.
(22) Services or supplies ordered by a court or other government
agency. Services or supplies, including inpatient stays, directed or
agreed to by a court or other governmental agency. However, those
services and supplies (including inpatient stays) that otherwise are
medically or psychologically necessary for the diagnosis or treatment of
a covered condition and that otherwise meet all CHAMPUS requirements for
coverage are not excluded.
(23) Work-related (occupational) disease or injury. Services and
supplies required as a result of occupational disease or injury for
which any benefits are payable under a worker's compensation or similar
law, whether or not such benefits have been applied for or paid; except
if benefits provided under such laws are exhausted.
(24) Cosmetic, reconstructive, or plastic surgery. Services and
supplies in connection with cosmetic, reconstructive, or plastic surgery
except as specifically provided in paragraph (e)(8) of this section.
(25) Surgery, psychological reasons. Surgery performed primarily for
psychological reasons (such as psychogenic).
(26) Electrolysis.
[[Page 156]]
(27) Dental care. Dental care or oral surgery, except as
specifically provided in paragraph (e)(10) of this section.
(28) Obesity, weight reduction. Service and supplies related
``solely'' to obesity or weight reduction or weight control whether
surgical or nonsurgical; wiring of the jaw or any procedure of similar
purpose, regardless of the circumstances under which performed (except
as provided in paragraph (e)(15) of this section).
(29) Sex gender changes. Services and supplies related to sex gender
change, also referred to as sex reassignment surgery, as prohibited by
section 1079 of title 10, United States Code. This exclusion does not
apply to surgery and related medically necessary services performed to
correct sex gender confusion/intersex conditions (that is, ambiguous
genitalia) which has been documented to be present at birth.
(30) Therapy or counseling for sexual dysfunctions or sexual
inadequacies. Sex therapy, sexual advice, sexual counseling, sex
behavior modification, psychotherapy for mental disorders involving
sexual deviations (i.e., transvestic fetishm), or other similar
services, and any supplies provided in connection with therapy for
sexual dysfunctions or inadequacies.
(31) Corns, calluses, and toenails. Removal of corns or calluses or
trimming of toenails and other routine podiatry services, except those
required as a result of a diagnosed systemic medical disease affecting
the lower limbs, such as severe diabetes.
(32) Dyslexia.
(33) Surgical sterilization, reversal. Surgery to reverse surgical
sterilization procedures.
(34) Noncoital reproductive procedures including artifical
insemination, in-vitro fertilization, gamete intrafallopian transfer and
all other such reproductive technologies. Services and supplies related
to artificial insemination (including semen donors and semen banks), in-
vitro fertilization, gamete intrafallopian transfer and all other
noncoital reproductive technologies.
(35) Nonprescription contraceptives.
(36) Tests to determine paternity or sex of a child. Diagnostic
tests to establish paternity of a child; or tests to determine sex of an
unborn child.
(37) Preventive care. Except as stated in paragraph (e)(28) of this
section, preventive care, such as routine, annual, or employment-
requested physical examinations and routine screening procedures.
(38) Chiropractors and naturopaths. Services of chiropractors and
naturopaths whether or not such services would be eligible for benefits
if rendered by an authorized provider.
(39) Counseling. Educational, vocational, non-medical nutritional
counseling, counseling for socioeconomic purposes, stress management,
and/or lifestyle modification purposes, except the following are not
excluded:
(i) Services provided by a certified marriage and family therapist,
pastoral or mental health counselor in the treatment of a mental
disorder as specifically provided in paragraph (c)(3)(ix) of this
section and in Sec. 199.6.
(ii) Diabetes self-management training (DSMT) as specifically
provided in paragraph (d)(3)(ix) of this section.
(iii) Smoking cessation counseling and education as specifically
provided in paragraph (e)(30) of this section.
(iv) Services provided by alcoholism rehabilitation counselors only
when rendered in a CHAMPUS-authorized treatment setting and only when
the cost of those services is included in the facility's CHAMPUS-
determined allowable cost rate.
(v) Medical nutritional therapy (also referred to as medical
nutritional counseling) required in the administration of the medically
necessary foods, services and supplies authorized in paragraph
(d)(3)(iii)(B) of this section, medically necessary vitamins authorized
in paragraph (d)(3)(vi)(D) of this section, or when medically necessary
for other authorized covered services.
(40) Acupuncture. Acupuncture, whether used as a therapeutic agent
or as an anesthetic.
(41) Hair transplants, wigs/hair pieces/cranial prosthesis.
Note: In accordance with section 744 of the DoD Appropriation Act
for 1981 (Pub. L. 96-527), CHAMPUS coverage for wigs or hairpieces is
permitted effective December 15, 1980, under the conditions listed
below. Continued availability of benefits will depend on the language of
the annual DoD Appropriation Acts.
[[Page 157]]
(i) Benefits provided. Benefits may be extended, in accordance with
the CHAMPUS-determined allowable charge, for one wig or hairpiece per
beneficiary (lifetime maximum) when the attending physician certifies
that alopecia has resulted from treatment of a malignant disease and the
beneficiary certifies that a wig or hairpiece has not been obtained
previously through the U.S. Government (including the Veterans
Administration).
(ii) Exclusions. The wig or hairpiece benefit does not include
coverage for the following:
(A) Alopecia resulting from conditions other than treatment of
malignant disease.
(B) Maintenance, wig or hairpiece supplies, or replacement of the
wig or hairpiece.
(C) Hair transplants or any other surgical procedure involving the
attachment of hair or a wig or hairpiece to the scalp.
(D) Any diagnostic or therapeutic method or supply intended to
encourage hair regrowth.
(42) Education or training. Self-help, academic education or
vocational training services and supplies, unless the provisions of
Sec. 199.4, paragraph (b)(1)(v) relating to general or special
education, apply.
(43) Exercise/relaxation/comfort/sporting items or sporting devices.
Exercise equipment, to include items primarily and customarily designed
for use in sports or recreational activities, spas, whirlpools, hot
tubs, swimming pools health club memberships or other such charges or
items.
(44) Exercise. General exercise programs, even if recommended by a
physician and regardless of whether or not rendered by an authorized
provider. In addition, passive exercises and range of motion exercises
also are excluded, except when prescribed by a physician and rendered by
a physical therapist concurrent to, and as an integral part of, a
comprehensive program of physical therapy.
(45) [Reserved]
(46) Vision care. Eye exercises or visual training (orthoptics).
(47) Eye and hearing examinations. Eye and hearing examinations
except as specifically provided in paragraphs (c)(2)(xvi), (c)(3)(xi),
and (e)(24) of this section, or except when rendered in connection with
medical or surgical treatment of a covered illness or injury.
(48) Prosthetic devices. Prostheses other than those determined by
the Director, OCHAMPUS to be necessary because of significant conditions
resulting from trauma, congenital anomalies, or disease. All dental
prostheses are excluded, except for those specifically required in
connection with otherwise covered orthodontia directly related to the
surgical correction of a cleft palate anomaly.
(49) Orthopedic shoes. Orthopedic shoes, arch supports, shoe
inserts, and other supportive devices for the feet, including special-
ordered, custom-made built-up shoes, or regular shoes later built up.
(50) Eyeglasses. Eyeglasses, spectacles, contact lenses, or other
optical devices, except as specifically provided under paragraph (e)(6)
of this section.
(51) Hearing aids. Hearing aids or other auditory sensory enhancing
devices, except those allowed in paragraph (e)(24) of this section.
(52) Telephone services. Services or advice rendered by telephone
are excluded, except that a diagnostic or monitoring procedure which
incorporates electronic transmission of data or remote detection and
measurement of a condition, activity, or function (biotelemetry) is not
excluded when:
(i) The procedure without electronic transmission of data or
biotelemetry is otherwise an explicit or derived benefit of this
section; and
(ii) The addition of electronic transmission of data or biotelemetry
to the procedure is found by the Director, CHAMPUS, or designee, to be
medically necessary and appropriate medical care which usually improves
the efficiency of the management of a clinical condition in defined
circumstances; and
(iii) That each data transmission or biotelemetry device
incorporated into a procedure that is otherwise an explicit or derived
benefit of this section, has been classified by the U.S. Food and Drug
Administration, either separately or as a part of a system, for use
[[Page 158]]
consistent with the defined circumstances in paragraph (g)(52)(ii) of
this section.
(53) Air conditioners, humidifiers, dehumidifiers, and purifiers.
(54) Elevators or chair lifts.
(55) Alterations. Alterations to living spaces or permanent features
attached thereto, even when necessary to accommodate installation of
covered durable medical equipment or to facilitate entrance or exit.
(56) Clothing. Items of clothing or shoes, even if required by
virtue of an allergy (such as cotton fabric as against synthetic fabric
and vegetable-dyed shoes).
(57) Food, food substitutes. Food, food substitutes, vitamins, or
other nutritional supplements, including those related to prenatal care,
except as authorized in paragraphs (d)(3)(iii)(B) and (d)(3)(vi)(D) of
this section.
(58) Enuretic. Enuretic conditioning programs, but enuretic alarms
may be cost-shared when determined to be medically necessary in the
treatment of enuresis.
(59) Duplicate equipment. As defined in Sec. 199.2, duplicate
equipment is excluded.
(60) Autopsy and postmortem.
(61) Camping. All camping even though organized for a specific
therapeutic purpose (such as diabetic camp or a camp for emotionally
disturbed children), and even though offered as a part of an otherwise
covered treatment plan or offered through a CHAMPUS-approved facility.
(62) Housekeeper, companion. Housekeeping, homemaker, or attendant
services; sitter or companion.
(63) Non-covered condition/treatment, unauthorized provider. All
services and supplies (including inpatient institutional costs) related
to a non-covered condition or treatment, including any necessary follow-
on care or the treatment of complications, are excluded from coverage
except as provided under paragraph (e)(9) of this section. In addition,
all services and supplies provided by an unauthorized provider are
excluded.
(64) Comfort or convenience. Personal, comfort, or convenience items
such as beauty and barber services, radio, television, and telephone.
(65) [Reserved]
(66) Megavitamin psychiatric therapy, orthomolecular psychiatric
therapy.
(67) Transportation. All transportation except by ambulance, as
specifically provided under paragraph (d), and except as authorized in
paragraph (e)(5) of this section.
(68) Travel. All travel even though prescribed by a physician and
even if its purpose is to obtain medical care, except as specified in
paragraph (a)(6) of this section in connection with a CHAMPUS-required
physical examination and as specified in Sec. 199.17(n)(2)(vi).
(69) Institutions. Services and supplies provided by other than a
hospital, unless the institution has been approved specifically by
OCHAMPUS. Nursing homes, intermediate care facilities, halfway houses,
homes for the aged, or institutions of similar purpose are excluded from
consideration as approved facilities under the Basic Program.
Note: In order to be approved under CHAMPUS, an institution must, in
addition to meeting CHAMPUS standards, provide a level of care for which
CHAMPUS benefits are payable.
(70)-(71) [Reserved]
(72) [Reserved]
(73) Economic interest in connection with mental health admissions.
Inpatient mental health services (including both acute care and RTC
services) are excluded for care received when a patient is referred to a
provider of such services by a physician (or other health care
professional with authority to admit) who has an economic interest in
the facility to which the patient is referred, unless a waiver is
granted. Requests for waiver shall be considered under the same
procedure and based on the same criteria as used for obtaining
preadmission authorization (or continued stay authorization for
emergency admissions), with the only additional requirement being that
the economic interest be disclosed as part of the request. This
exclusion does not apply to services under the Extended Care Health
Option (ECHO) in Sec. 199.5 or provided as partial hospital care. If a
situation arises where a decision is made to exclude CHAMPUS payment
solely on the basis of the provider's economic interest, the normal
CHAMPUS appeals process will be available.
[[Page 159]]
(74) Not specifically listed. Services and supplies not specifically
listed as a benefit in this part. This exclusion is not intended to
preclude extending benefits for those services or supplies specifically
determined to be covered within the intent of this part by the Director,
OCHAMPUS, or a designee, even though not otherwise listed.
Note: The fact that a physician may prescribe, order, recommend, or
approve a service or supply does not, of itself, make it medically
necessary or make the charge an allowable expense, even though it is not
listed specifically as an exclusion.
(h) Payment and liability for certain potentially excludable
services under the Peer Review Organization program--(1) Applicability.
This subsection provides special rules that apply only to services
retrospectively determined under the Peer Review organization (PRO)
program (operated pursuant to Sec. 199.15) to be potentially excludable
(in whole or in part) from the basic program under paragraph (g) of this
section. Services may be excluded by reason of being not medically
necessary (paragraph (g)(1) of this section), at an inappropriate level
(paragraph (g)(3) of this section), custodial care (paragraph (g)(7) of
this section) or other reason relative to reasonableness, necessity or
appropriateness (which services shall throughout the remainder of this
subsection, be referred to as ``not medically necessary''). (Also
throughout the remainder of the subsection, ``services'' includes items
and ``provider'' includes supplier). This paragraph does not apply to
coverage determinations made by OCHAMPUS or the fiscal intermediaries
which are not based on medical necessity determinations made under the
PRO program.
(2) Payment for certain potentially excludable expenses. Services
determined under the PRO program to be potentially excludable by reason
of the exclusions in paragraph (g) of this section for not medically
necessary services will not be determined to be excludable if neither
the beneficiary to whom the services were provided nor the provider
(institutional or individual) who furnished the services knew, or could
reasonably have been expected to know, that the services were subject to
those exclusions. Payment may be made for such services as if the
exclusions did not apply.
(3) Liability for certain excludable services. In any case in which
items or services are determined excludable by the PRO program by reason
of being not medically necessary and payment may not be made under
paragraph (h)(2) of this section because the requirements of paragraph
(h)(2) of this section are not met, the beneficiary may not be held
liable (and shall be entitled to a full refund from the provider of the
amount excluded and any cost share amount already paid) if:
(i) The beneficiary did not know and could not reasonably have been
expected to know that the services were excludable by reason of being
not medically necessary; and
(ii) The provider knew or could reasonably have been expected to
know that the items or services were excludable by reason of being not
medically necessary.
(4) Criteria for determining that beneficiary knew or could
reasonably have been expected to have known that services were
excludable. A beneficiary who receives services excludable by reason of
being not medically necessary will be found to have known that the
services were excludable if the beneficiary has been given written
notice that the services were excludable or that similar or comparable
services provided on a previous occasion were excludable and that notice
was given by the OCHAMPUS, CHAMPUS PRO or fiscal intermediary, a group
or committee responsible for utilization review for the provider, or the
provider who provided the services.
(5) Criteria for determining that provider knew or could reasonably
have been expected to have known that services were excludable. An
institutional or individual provider will be found to have known or been
reasonably expected to have known that services were excludable under
this subsection under any one of the following circumstances:
(i) The PRO or fiscal intermediary had informed the provider that
the services provided were excludable or that similar or reasonably
comparable services were excludable.
[[Page 160]]
(ii) The utilization review group or committee for an institutional
provider or the beneficiary's attending physician had informed the
provider that the services provided were excludable.
(iii) The provider had informed the beneficiary that the services
were excludable.
(iv) The provider had received written materials, including notices,
manual issuances, bulletins, guides, directives or other materials,
providing notification of PRO screening criteria specific to the
condition of the beneficiary. Attending physicians who are members of
the medical staff of an institutional provider will be found to have
also received written materials provided to the institutional provider.
(v) The services that are at issue are the subject of what are
generally considered acceptable standards of practice by the local
medical community.
(vi) Preadmission authorization was available but not requested, or
concurrent review requirements were not followed.
[51 FR 24008, July 1, 1986]
Editorial Note: For Federal Register citations affecting Sec.
199.4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 199.5 TRICARE Extended Care Health Option (ECHO).
(a) General. (1) The TRICARE ECHO is essentially a supplemental
program to the TRICARE Basic Program. It does not provide acute care nor
benefits available through the TRICARE Basic Program.
(2) The purpose of the ECHO is to provide an additional financial
resource for an integrated set of services and supplies designed to
assist in the reduction of the disabling effects of the ECHO-eligible
dependent's qualifying condition. Services include those necessary to
maintain, minimize or prevent deterioration of function of an ECHO-
eligible dependent.
(3) The Government's cost-share for ECHO or ECHO home health
benefits during any program year is limited as stated in this section.
In order to transition the program year from a fiscal year to a calendar
year basis, the Government's annual cost-share limitation specified in
paragraph (f) of this section shall be prorated for the last quarter of
calendar year 2018 as authorized by 10 U.S.C. 1079(f)(2)(A).
(b) Eligibility. (1) The following categories of TRICARE/CHAMPUS
beneficiaries with a qualifying condition are ECHO-eligible dependents:
(i) A spouse, child, or unmarried person (as described in Sec.
199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a member of the Uniformed
Services on active duty for a period of more than 30 days.
(ii) An abused dependent as described in Sec. 199.3(b)(2)(iii).
(iii) A spouse, child, or unmarried person (as described in Sec.
199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)), of a member of the Uniformed
Services who dies while on active duty for a period of more than 30 days
and whose death occurs on or after October 7, 2001. In such case, an
eligible surviving spouse remains eligible for benefits under the ECHO
for a period of 3 years from the date the active duty sponsor dies. Any
other eligible surviving dependent remains eligible for benefits under
the ECHO for a period of three years from the date the active duty
sponsor dies or until the surviving eligible dependent:
(A) Attains 21 years of age, or
(B) Attains 23 years of age or ceases to pursue a full-time course
of study prior to attaining 23 years of age, if, at 21 years of age, the
eligible surviving dependent 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 Secretary of Defense and
was, at the time of the sponsor's death, in fact dependent on the member
for over one-half of such dependent's support.
(iv) A spouse, child, or unmarried person (as defined in paragraphs
Sec. 199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a deceased member of
the Uniformed Services who, at the time of the member's death was
receiving benefits under ECHO, and the member at the time of death was
eligible for receipt of hostile-fire pay, or died as a result of a
disease or injury incurred while eligible for such pay. In such a case,
the surviving dependent remains eligible
[[Page 161]]
for benefits under ECHO through midnight of the dependent's twenty-first
birthday.
(2) Qualifying condition. The following are qualifying conditions:
(i) Mental retardation. A diagnosis of moderate or severe mental
retardation made in accordance with the criteria of the current edition
of the ``Diagnostic and Statistical Manual of Mental Disorders''
published by the American Psychiatric Association.
(ii) Serious physical disability. A serious physical disability as
defined in Sec. 199.2.
(iii) Extraordinary physical or psychological condition. An
extraordinary physical or psychological condition as defined in Sec.
199.2.
(iv) Infant/toddler. Beneficiaries under the age of 3 years who are
diagnosed with a neuromuscular developmental condition or other
condition that is expected to precede a diagnosis of moderate or severe
mental retardation or a serious physical disability, shall be deemed to
have a qualifying condition for the ECHO. The Director, TRICARE
Management Activity or designee shall establish criteria for ECHO
eligibility in lieu of the requirements of paragraphs (b)(2)(i), (ii) or
(iii) of this section.
(v) Multiple disabilities. The cumulative effect of multiple
disabilities, as determined by the Director, TRICARE Management Activity
or designee shall be used in lieu of the requirements of paragraphs
(b)(2)(i), (ii) or (iii) of this section to determine a qualifying
condition when the beneficiary has two or more disabilities involving
separate body systems.
(3) Loss of ECHO eligibility. Eligibility for ECHO benefits ceases
as of 12:01 a.m. of the day following the day that:
(i) The sponsor ceases to be an active duty member for any reason
other than death; or
(ii) Eligibility based upon the abused dependent provisions of
paragraph (b)(1)(ii) of this section expires; or
(iii) Eligibility based upon the deceased sponsor provisions of
paragraphs (b)(1)(iii) or (iv) of this section expires; or
(iv) Eligibility based upon a beneficiary's participation in the
Transitional Assistance Management Program ends; or
(v) The Director, TRICARE Management Activity or designee determines
that the beneficiary no longer has a qualifying condition.
(c) ECHO benefit. Items and services that the Director, TRICARE
Management Activity or designee has determined are capable of
confirming, arresting, or reducing the severity of the disabling effects
of a qualifying condition, includes, but are not limited to:
(1) Diagnostic procedures to establish a qualifying condition or to
measure the extent of functional loss resulting from a qualifying
condition.
(2) Medical, habilitative, rehabilitative services and supplies,
durable equipment and assistive technology (AT) devices that assist in
the reduction of the disabling effects of a qualifying condition.
Benefits shall be provided in the beneficiary's home or another
environment, as appropriate. An AT device may be covered only if it is
recommended in a beneficiary's Individual Educational Program (IEP) or,
if the beneficiary is not eligible for an IEP, the AT device is an item
or educational learning device normally included in an IEP and is
preauthorized under ECHO as an integral component of the beneficiary's
individual comprehensive health care services plan (including
rehabilitation) as prescribed by a TRICARE authorized provider.
(i) An AT device may be covered under ECHO only if it is not
otherwise covered by TRICARE as durable equipment, a prosthetic,
augmentation communication device, or other benefits under Sec. 199.4.
(ii) An AT device may include an educational learning device
directly related to the beneficiary's qualifying condition when
recommended by an IEP and not otherwise provided by State or local
government programs. If an individual is not eligible for an IEP, an
educational learning device normally included in the IEP may be
authorized as if directly related to the beneficiary's qualifying
condition and prescribed by a TRICARE authorized provider as part of the
beneficiary's individual comprehensive health care services plan.
[[Page 162]]
(iii) Electronic learning devices may include the hardware and
software as appropriate. The Director, DHA, shall determine the types
and (or) platforms of electronic devices and the replacement lifecycle
of the hardware and its supporting software. All upgrades or
replacements shall require a recommendation from the individual's IEP or
the individual's comprehensive health care services plan.
(iv) Duplicative or redundant hardware platforms are not authorized.
Note to paragraph (c)(2)(iv): When one or more electronic platforms
such as a desktop computer, laptop, notebook or tablet can perform the
same functions in relation to the teaching or educational objective
directly related to the qualifying condition, it is the intent of this
provision to allow only one electronic platform that may be chosen by
the beneficiary. Duplicative or redundant platforms are not allowed;
however, a second platform may be obtained, if the individual's IEP
recommends one platform such as a computer for the majority of the
learning objectives, but there exists another objective, which cannot be
performed on that platform. In these limited circumstances, the
beneficiary may submit a request with the above justification to the
Director, TMA, who may authorize a second device.
(v) AT devices damaged through improper use of the device may not be
replaced until the device would next be eligible for a lifecycle
replacement.
(vi) AT devices do not include equipment or devices whose primary
purpose is to assist the individual to engage in sports or recreational
activities.
(3) Training that teaches the use of assistive technology devices or
to acquire skills that are necessary for the management of the
qualifying condition. Such training is also authorized for the
beneficiary's immediate family. Vocational training, in the
beneficiary's home or a facility providing such, is also allowed.
(4) Special education as provided by the Individuals with
Disabilities Education Act and defined at 34 CFR 300.26 and that is
specifically designed to accommodate the disabling effects of the
qualifying condition.
(5) Institutional care within a state, as defined in Sec. 199.2, in
private nonprofit, public, and state institutions and facilities, when
the severity of the qualifying condition requires protective custody or
training in a residential environment. For the purpose of this section
protective custody means residential care that is necessary when the
severity of the qualifying condition is such that the safety and well-
being of the beneficiary or those who come into contact with the
beneficiary may be in jeopardy without such care.
(6) Transportation of an ECHO beneficiary receiving benefits under
paragraph (c)(5), and a medical attendant when necessary to assure the
beneficiary's safety, to or from a facility or institution to receive
authorized ECHO services or items.
(7) Respite care. ECHO beneficiaries are eligible for 16 hours of
respite care per month in any month during which the beneficiary
otherwise receives an ECHO benefit(s). Respite care is defined in Sec.
199.2. Respite care services will be provided by a TRICARE-authorized
home health agency and will be designed to provide health care services
for the covered beneficiary, and not baby-sitting or child-care services
for other members of the family. The benefit will not be cumulative,
that is, any respite care hours not used in one month will not be
carried over or banked for use on another occasion.
(i) TRICARE-authorized home health agencies must provide and bill
for all authorized ECHO respite care services through established
TRICARE claims' mechanisms. No special billing arrangements will be
authorized in conjunction with coverage that may be provided by Medicaid
or other federal, state, community or private programs.
(ii) For authorized ECHO respite care, TRICARE will reimburse the
allowable charges or negotiated rates.
(iii) The Government's cost-share incurred for these services
accrues to the program year benefit limit of $36,000.
(8) Other services. (i) Assistive services. Services of qualified
personal assistants, such as an interpreter or translator for ECHO
beneficiaries who are deaf or mute and readers for ECHO beneficiaries
who are blind, when such services are necessary in order for the ECHO
beneficiary to receive authorized ECHO benefits.
(ii) Equipment adaptation. The allowable equipment and an AT device
purchase shall include such services and
[[Page 163]]
modifications to the equipment as necessary to make the equipment usable
for a particular ECHO beneficiary.
(iii) Equipment maintenance. Reasonable repairs and maintenance of
the beneficiary owned or rented DE or AT devices provided by this
section shall be allowed while a beneficiary is registered in the ECHO
Program. Repairs of DE and/or AT devices damaged while using the item in
a manner inconsistent with its common use, and replacement of lost or
stolen rental DE are not authorized coverage as an ECHO benefit. In
addition, repairs and maintenance of deluxe, luxury, or immaterial
features of DE or AT devices are not authorized coverage as an ECHO
benefit.
(d) ECHO Exclusions--(1) Basic Program. Benefits allowed under the
TRICARE Basic Program will not be provided through the ECHO.
(2) Inpatient care. Inpatient acute care for medical or surgical
treatment of an acute illness, or of an acute exacerbation of the
qualifying condition, is excluded.
(3) Structural alterations. Alterations to living space and
permanent fixtures attached thereto, including alterations necessary to
accommodate installation of equipment or AT devices to facilitate
entrance or exit, are excluded.
(4) Homemaker services. Services that predominantly provide
assistance with household chores are excluded.
(5) Dental care or orthodontic treatment. Both are excluded.
(6) Deluxe travel or accommodations. The difference between the
price for travel or accommodations that provide services or features
that exceed the requirements of the beneficiary's condition and the
price for travel or accommodations without those services or features is
excluded.
(7) Equipment. Purchase or rental of DE and AT devices otherwise
allowed by this section is excluded when:
(i) The beneficiary is a patient in an institution or facility that
ordinarily provides the same type of equipment or AT devices to its
patients at no additional charge in the usual course of providing
services; or
(ii) The item is available to the beneficiary from a Uniformed
Services Medical Treatment Facility; or
(iii) The item has deluxe, luxury, immaterial or nonessential
features that increase the cost to the Department relative to a similar
item without those features; or
(iv) The item is a duplicate DE or an AT device, as defined in Sec.
199.2.
(v) The item (or charge for access to such items through health club
membership or other activities) is exercise equipment including an item
primarily and customarily designed for use in sports or recreational
activities, spa, whirlpool, hot tub, swimming pool, an electronic device
used to locate or monitor the location of the beneficiary, or other
similar items or charges.
(8) Maintenance agreements. Maintenance agreements for beneficiary
owned or rented equipment or AT device are excluded.
(9) No obligation to pay. Services or items for which the
beneficiary or sponsor has no legal obligation to pay are excluded.
(10) Public facility or Federal government. Services or items paid
for, or eligible for payment, directly or indirectly by a public
facility, as defined in Sec. 199.2, or by the Federal government, other
than the Department of Defense, are excluded for training,
rehabilitation, special education, assistive technology devices,
institutional care in private nonprofit, public, and state institutions
and facilities, and if appropriate, transportation to and from such
institutions and facilities, except when such services or items are
eligible for payment under a state plan for medical assistance under
Title XIX of the Social Security Act (Medicaid). Rehabilitation and
assistive technology services or supplies may be available under the
TRICARE Basic Program.
(11) Study, grant, or research programs. Services and items provided
as a part of a scientific clinical study, grant, or research program are
excluded.
(12) Unproven status. Drugs, devices, medical treatments,
diagnostic, and therapeutic procedures for which the safety and efficacy
have not been established in accordance with Sec. 199.4 are excluded.
[[Page 164]]
(13) Immediate family or household. Services or items provided or
prescribed by a member of the beneficiary's immediate family, or a
person living in the beneficiary's or sponsor's household, are excluded.
(14) Court or agency ordered care. Services or items ordered by a
court or other government agency, which are not otherwise an allowable
ECHO benefit, are excluded.
(15) Excursions. Excursions are excluded regardless of whether or
not they are part of a program offered by a TRICARE-authorized provider.
The transportation benefit available under ECHO is specified elsewhere
in this section.
(16) Drugs and medicines. Drugs and medicines that do not meet the
requirements of Sec. 199.4 or Sec. 199.21 are excluded.
(17) Therapeutic absences. Therapeutic absences from an inpatient
facility or from home for a homebound beneficiary are excluded.
(18) Custodial care. Custodial care, as defined in Sec. 199.2 is
not a stand-alone benefit. Services generally rendered as custodial care
may be provided only as specifically set out in this section.
(19) Domiciliary care. Domiciliary care, as defined in Sec. 199.2,
is excluded.
(20) Respite care. Respite care for the purpose of covering primary
caregiver (as defined in Sec. 199.2) absences due to deployment,
employment, seeking of employment or to pursue education is excluded.
Authorized respite care covers only the ECHO beneficiary, not siblings
or others who may reside in or be visiting in the beneficiary's
residence.
(e) ECHO Home Health Care (EHHC). The EHHC benefit provides coverage
of home health care services and respite care services specified in this
section.
(1) Home health care. Covered ECHO home health care services are the
same as, and provided under the same conditions as those services
described in Sec. 199.4(e)(21)(i), except that they are not limited to
part-time or intermittent services. Custodial care services, as defined
in Sec. 199.2, may be provided to the extent such services are provided
in conjunction with authorized ECHO home health care services, including
the EHHC respite care benefit specified in this section. Beneficiaries
who are authorized EHHC will receive all home health care services under
EHHC and no portion will be provided under the Basic Program. TRICARE-
authorized home health agencies are not required to use the Outcome and
Assessment Information Set (OASIS) to assess beneficiaries who are
authorized EHHC.
(2) Respite care. EHHC beneficiaries whose plan of care includes
frequent interventions by the primary caregiver(s) are eligible for
respite care services in lieu of the ECHO general respite care benefit.
For the purpose of this section, the term ``frequent'' means ``more than
two interventions during the eight-hour period per day that the primary
caregiver would normally be sleeping.'' The services performed by the
primary caregiver are those that can be performed safely and effectively
by the average non-medical person without direct supervision of a health
care provider after the primary caregiver has been trained by
appropriate medical personnel. EHHC beneficiaries in this situation are
eligible for a maximum of eight hours per day, 5 days per week, of
respite care by a TRICARE-authorized home health agency. The home health
agency will provide the health care interventions or services for the
covered beneficiary so that the primary caregiver is relieved of the
responsibility to provide such interventions or services for the
duration of that period of respite care. The home health agency will not
provide baby-sitting or child care services for other members of the
family. The benefit is not cumulative, that is, any respite care hours
not used in a given day may not be carried over or banked for use on
another occasion. Additionally, the eight-hour respite care periods will
not be provided consecutively, that is, a respite care period on one
calendar day will not be immediately followed by a respite care period
the next calendar day. The Government's cost-share incurred for these
services accrue to the maximum yearly ECHO Home Health Care benefit.
(3) EHHC eligibility. The EHHC is authorized for beneficiaries who
meet all applicable ECHO eligibility requirements and who:
[[Page 165]]
(i) Physically reside within the 50 United States, the District of
Columbia, Puerto Rico, the Virgin Islands, or Guam; and
(ii) Are homebound, as defined in Sec. 199.2; and
(iii) Require medically necessary skilled services that exceed the
level of coverage provided under the Basic Program's home health care
benefit; and/or
(iv) Require frequent interventions by the primary caregiver(s) such
that respite care services are necessary to allow primary caregiver(s)
the opportunity to rest; and
(v) Are case managed to include a reassessment at least every 90
days, and receive services as outlined in a written plan of care; and
(vi) Receive all home health care services from a TRICARE-authorized
home health agency, as described in Sec. 199.6(b)(4)(xv), in the
beneficiary's primary residence.
(4) EHHC plan of care. A written plan of care is required prior to
authorizing ECHO home health care. The plan must include the type,
frequency, scope and duration of the care to be provided and support the
professional level of provider. Reimbursement will not be authorized for
a level of provider not identified in the plan of care.
(5) EHHC exclusions--(i) General. ECHO Home Health Care services and
supplies are excluded from those who are being provided continuing
coverage of home health care as participants of the former Individual
Case Management Program for Persons with Extraordinary Conditions (ICMP-
PEC) or previous case management demonstrations.
(ii) Respite care. Respite care for the purpose of covering primary
caregiver absences due to deployment, employment, seeking of employment
or to pursue education is excluded. Authorized respite care covers only
the ECHO beneficiary, not siblings or others who may reside in or be
visiting in the beneficiary's residence.
(f) Cost-share liability--(1) No deductible. ECHO benefits are not
subject to a deductible amount.
(2) Sponsor cost-share liability. (i) Regardless of the number of
family members receiving ECHO benefits or ECHO Home Health Care in a
given month, the sponsor's cost-share is according to the following
table:
Table 1--Monthly Cost-Share by Member's Pay Grade
------------------------------------------------------------------------
------------------------------------------------------------------------
E-1 through E-5................................................. $25
E-6............................................................. 30
E-7 and O-1..................................................... 35
E-8 and O-2..................................................... 40
E-9, W-1, W-2 and O-3........................................... 45
W-3, W-4 and O-4................................................ 50
W-5 and O-5..................................................... 65
O-6............................................................. 75
O-7............................................................. 100
O-8............................................................. 150
O-9............................................................. 200
O-10............................................................ 250
------------------------------------------------------------------------
(ii) The Sponsor's cost-share shown in Table 1 in paragraph
(f)(2)(i) of this section will be applied to the first allowed ECHO
charges in any given month. The Government's share will be paid, up to
the maximum amount specified in paragraph (f)(3) of this section, for
allowed charges after the sponsor's cost-share has been applied.
(iii) The provisions of Sec. 199.18(d)(1) and (e)(1) regarding
elimination of copayments for active duty family members enrolled in
TRICARE Prime do not eliminate, reduce, or otherwise affect the
sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this
section.
(iv) The sponsor's cost-share shown in Table 1 in paragraph
(f)(2)(i) of this section does not accrue to the Basic Program's
Catastrophic Loss Protection under 10 U.S.C. 1079(b)(5) as shown at
Sec. Sec. 199.4(f)(10) and 199.18(f).
(3) Government cost-share liability--(i) ECHO. The total Government
share of the cost of all ECHO benefits, except ECHO Home Health Care
(EHHC) and EHHC respite care, provided in a given program year to a
beneficiary, may not exceed $36,000 after application of the allowable
payment methodology.
(ii) ECHO home health care. (A) The maximum annual program year
Government cost-share per EHHC-eligible beneficiary for ECHO home health
care, including EHHC respite care may not exceed the local wage-adjusted
highest Medicare Resource Utilization Group (RUG-III) category cost for
care in a TRICARE-authorized skilled nursing facility.
[[Page 166]]
(B) When a beneficiary moves to a different locality within the 50
United States, the District of Columbia, Puerto Rico, the Virgin
Islands, or Guam, the annual program year cap will be recalculated to
reflect the maximum established under paragraph (f)(3)(ii)(A) of this
section for the beneficiary's new location and will apply to the EHHC
benefit for the remaining portion of that program year.
(g) Benefit payment--(1) Transportation. The allowable amount for
transportation of an ECHO beneficiary is limited to the actual cost of
the standard published fare plus any standard surcharge made to
accommodate any person with a similar disability or to the actual cost
of specialized medical transportation when non-specialized transport
cannot accommodate the beneficiary's qualifying condition related needs,
or when specialized transport is more economical than non-specialized
transport. When transport is by private vehicle, the allowable amount is
limited to the Federal government employee mileage reimbursement rate in
effect on the date the transportation is provided.
(2) Equipment. (i) The TRICARE allowable amount for DE or AT devices
shall be calculated in the same manner as DME allowable through section
199.4 of this title, and accrues to the program year benefit limit
specified in paragraph (f)(3) of this section.
(ii) Cost-share. A cost-share, as provided by paragraph (f)(2) of
this section, is required for each month in which equipment or an AT
device is purchased under this section. However, in no month shall a
sponsor be required to pay more than one cost-share regardless of the
number of benefits the sponsor's dependents received under this section.
(3) For-profit institutional care provider. Institutional care
provided by a for-profit entry may be allowed only when the care for a
specific ECHO beneficiary:
(i) Is contracted for by a public facility as a part of a publicly
funded long-term inpatient care program; and
(ii) Is provided based upon the ECHO beneficiary's being eligible
for the publicly funded program which has contracted for the care; and
(iii) Is authorized by the public facility as a part of a publicly
funded program; and
(iv) Would cause a cost-share liability in the absence of TRICARE
eligibility; and
(v) Produces an ECHO beneficiary cost-share liability that does not
exceed the maximum charge by the provider to the public facility for the
contracted level of care.
(4) ECHO home health care and EHHC respite care. (i) TRICARE-
authorized home health agencies must provide and bill for all authorized
home health care services through established TRICARE claims'
mechanisms. No special billing arrangements will be authorized in
conjunction with coverage that may be provided by Medicaid or other
federal, state, community or private programs.
(ii) For authorized ECHO home health care and respite care, TRICARE
will reimburse the allowable charges or negotiated rates.
(iii) The maximum monthly Government reimbursement for EHHC,
including EHHC respite care, will be based on the actual number of hours
of EHHC services rendered in the month, but in no case will it exceed
one-twelfth of the annual maximum Government cost-share as determined in
this section and adjusted according to the actual number of days in the
month the services were provided.
(h) Other Requirements--(1) Applicable part. All provisions of this
part, except the provisions of Sec. 199.4 unless otherwise provided by
this section or as directed by the Director, TRICARE Management Activity
or designee, apply to the ECHO.
(2) Registration. Active duty sponsors must register potential ECHO-
eligible beneficiaries through the Director, TRICARE Management
Activity, or designee prior to receiving ECHO benefits. The Director,
TRICARE Management Activity, or designee will determine ECHO eligibility
and update the Defense Enrollment Eligibility Reporting System
accordingly. Unless waived by the Director, TRICARE Management Activity
or designee, sponsors must provide evidence of enrollment in
[[Page 167]]
the Exceptional Family Member Program provided by their branch of
Service at the time they register their family member(s) for the ECHO.
(3) Benefit authorization. All ECHO benefits require authorization
by the Director, TRICARE Management Activity or designee prior to
receipt of such benefits.
(i) Documentation. The sponsor shall provide such documentation as
the Director, TRICARE Management Activity or designee requires as a
prerequisite to authorizing ECHO benefits. Such documentation shall
describe how the requested benefit will contribute to confirming,
arresting, or reducing the disabling effects of the qualifying
condition, including maintenance of function or prevention of further
deterioration of function, of the beneficiary.
(ii) Format. An authorization issued by the Director, TRICARE
Management Activity or designee shall specify such description, dates,
amounts, requirements, limitations or information as necessary for exact
identification of approved benefits and efficient adjudication of
resulting claims.
(iii) Valid period. An authorization for ECHO benefits shall be
valid until such time as the Director, TRICARE Management Activity or
designee determines that the authorized services are no longer
appropriate or required or the beneficiary is no longer eligible under
paragraph (b) of this section.
(iv) Authorization waiver. The Director, TRICARE Management Activity
or designee may waive the requirement for a written authorization for
rendered ECHO benefits that, except for the absence of the written
authorization, would be allowable as an ECHO benefit.
(v) Public facility use. (A) An ECHO beneficiary residing within a
state must demonstrate that a public facility is not available and
adequate to meet the needs of their qualifying condition. Such
requirements shall apply to beneficiaries who request authorization for
training, rehabilitation, special education, assistive technology, and
institutional care in private nonprofit, public, and state institutions
and facilities, and if appropriate for beneficiaries receiving
institutional care, transportation to and from such institutions and
facilities. The maximum Government cost-share for services that require
demonstration of public facility non-availability or inadequacy is
limited to $36,000 per program year per beneficiary. State-administered
plans for medical assistance under Title XIX of the Social Security Act
(Medicaid) are not considered available and adequate facilities for the
purpose of this section.
(B) The domicile of the beneficiary shall be the basis for the
determination of public facility availability when the sponsor and
beneficiary are separately domiciled due to the sponsor's move to a new
permanent duty station or due to legal custody requirements.
(C) Written certification, in accordance with information
requirements, formats, and procedures established by the director,
TRICARE Management Activity or designee that requested ECHO services or
items cannot be obtained from public facilities because the services or
items are not available and adequate, is a prerequisite for ECHO benefit
payment for training, rehabilitation, special education, assistive
technology, and institutional care in private nonprofit, public, and
state institutions and facilities, and if appropriate, transportation to
and from such institutions and facilities.
(1) An administrator or designee of a public facility may make such
certification for a beneficiary residing within the service area of that
public facility.
(2) The Director, TRICARE Management Activity or designee may
determine, on a case-by-case basis, that apparent public facility
availability or adequacy for a requested type of service or item cannot
be substantiated for a specific beneficiary's request for ECHO benefits
and therefore is not available.
(i) A case-specific determination shall be based upon a written
statement by the beneficiary (or sponsor or guardian acting on behalf of
the beneficiary) which details the circumstances wherein a specific
individual representing a specific public facility refused to provide a
public facility use certification, and such other information as the
Director, TRICARE
[[Page 168]]
Management Activity or designee determines to be material to the
determination.
(ii) A case-specific determination of public facility availability
by the Director, TRICARE Management Activity or designee is conclusive
and is not appealable under Sec. 199.10.
(4) Repair or maintenance of DE owned by the beneficiary or an AT
device is exempt from the public facility-use certification
requirements.
(5) The requirements of this paragraph (h)(3)(v)(A) notwithstanding,
no public facility use certification is required for services and items
that are provided under Part C of the Individuals with Disabilities
Education Act in accordance with the Individualized Family Services Plan
and that are otherwise allowable under the ECHO.
(i) Implementing instructions. The Director, TRICARE Management
Activity or designee shall issue TRICARE policies, instructions,
procedures, guidelines, standards, and criteria as may be necessary to
implement the intent of this section.
(j) Effective date. All changes to this section are effective as of
October 14, 2008, and claims for ECHO benefits provided on or after that
date will be reprocessed retroactively to that date as necessary.
[69 FR 51564, Aug. 20, 2004, as amended at 71 FR 47092, Aug. 16, 2006;
72 FR 2447, Jan. 19, 2007; 75 FR 47711, Aug. 9, 2010; 79 FR 78713, Dec.
31, 2014; 81 FR 27329, May 6, 2016; 82 FR 45447, Sept. 29, 2017]
Sec. 199.6 TRICARE--authorized providers.
(a) General. This section sets forth general policies and procedures
that are the basis for the CHAMPUS cost-sharing of medical services and
supplies provided by institutions, individuals, or other types of
providers. Providers seeking payment from the Federal Government through
programs such as CHAMPUS have a duty to familiarize themselves with, and
comply with, the program requirements.
(1) Listing of provider does not guarantee payment of benefits. The
fact that a type of provider is listed in this section is not to be
construed to mean that CHAMPUS will automatically pay a claim for
services or supplies provided by such a provider. The provider who
actually furnishes the service(s) must, in fact, meet all licensing and
other requirements established by this part to be an authorized
provider; the provider must not be the subject of sanction under Sec.
199.9; and, cost-sharing of the services must not otherwise be
prohibited by this part. In addition, the patient must in fact be an
eligible beneficiary and the services or supplies billed must be
authorized and medically necessary, regardless of the standing of the
provider.
(2) Outside the United States or emergency situations within the
United States. Outside the United States or within the United States and
Puerto Rico in emergency situations, the Director, OCHAMPUS, or a
designee, after review of the facts, may provide payment to or on behalf
of a beneficiary who receives otherwise covered services or supplies
from a provider of service that does not meet the standards described in
this part.
Note: Only the Secretary of Defense, the Secretary of Health and
Human Services, or the Secretary of Transportation, or their designees,
may authorize (in emergency situations) payment to civilian facilities
in the United States that are not in compliance with title VI of the
Civil Rights Act of 1964. For the purpose of the Civil Rights Act only,
the United States includes the 50 states, the District of Columbia,
Puerto Rico, Virgin Islands, American Samoa, Guam, Wake Island, Canal
Zone, and the territories and possessions of the United States.
(3) Dual compensation/Conflict of interest. Title 5, United States
Code, section 5536 prohibits medical personnel who are active duty
Uniformed Service members or civilian employees of the Government from
receiving additional Government compensation above their normal pay and
allowances for medical care furnished. In addition, Uniformed Service
members and civilian employees of the Government are generally
prohibited by law and agency regulations and policies from participating
in apparent or actual conflict of interest situations in which a
potential for personal gain exists or in which there is an appearance of
impropriety or incompatibility with the performance of their official
duties or responsibilities. The Departments of Defense, Health
[[Page 169]]
and Human Services, and Transportation have a responsibility, when
disbursing appropriated funds in the payment of CHAMPUS benefits, to
ensure that the laws and regulations are not violated. Therefore, active
duty Uniformed Service members (including a reserve member while on
active duty and civilian employees of the United States Government shall
not be authorized to be CHAMPUS providers. While individual employees of
the Government may be able to demonstrate that the furnishing of care to
CHAMPUS beneficiaries may not be incompatible with their official duties
and responsibilities, the processing of millions of CHAMPUS claims each
year does not enable Program administrators to efficiently review the
status of the provider on each claim to ensure that no conflict of
interest or dual compensation situation exists. The problem is further
complicated given the numerous interagency agreements (for example,
resource sharing arrangements between the Department of Defense and the
Veterans Administration in the provision of health care) and other
unique arrangements which exist at individual treatment facilities
around the country. While an individual provider may be prevented from
being an authorized CHAMPUS provider even though no conflict of interest
or dual compensation situation exists, it is essential for CHAMPUS to
have an easily administered, uniform rule which will ensure compliance
with the existing laws and regulations. Therefore, a provider who is an
active duty Uniformed Service member or civilian employee of the
Government shall not be an authorized CHAMPUS provider. In addition, a
provider shall certify on each CHAMPUS claim that he/she is not an
active duty Uniformed Service member or civilian employee of the
Government.
(4) [Reserved]
(5) Utilization review and quality assurance. Providers approved as
authorized CHAMPUS providers have certain obligations to provide
services and supplies under CHAMPUS which are (i) furnished at the
appropriate level and only when and to the extent medically necessary
under the criteria of this part; (ii) of a quality that meets
professionally recognized standards of health care; and, (iii) supported
by adequate medical documentation as may be reasonably required under
this part by the Director, OCHAMPUS, or designee, to evidence the
medical necessity and quality of services furnished, as well as the
appropriateness of the level of care. Therefore, the authorization of
CHAMPUS benefits is contingent upon the services and supplies furnished
by any provider being subject to pre-payment or post-payment utilization
and quality assurance review under professionally recognized standards,
norms, and criteria, as well as any standards or criteria issued by the
Director, OCHAMPUS, or a designee, pursuant to this part. (Refer to
Sec. Sec. 199.4, 199.5, and 199.7 of this part.)
(6) Exclusion of beneficiary liability. In connection with certain
utilization review, quality assurance and preauthorization requirements
of section 199.4 of this part, providers may not hold patients liable
for payment for certain services for which CHAMPUS payment is
disallowed. With respect to such services, providers may not seek
payment from the patient or the patient's family. Any such effort to
seek payment is a basis for termination of the provider's authorized
status.
(7) Provider required. In order to be considered for benefits, all
services and supplies shall be rendered by, prescribed by, or furnished
at the direction of, or on the order of a CHAMPUS-authorized provider
practicing within the scope of his or her license.
(8) Participating providers. A CHAMPUS-authorized provider is a
participating provider, as defined in Sec. 199.2 under the following
circumstances:
(i) Mandatory participation. (A) An institutional provider in Sec.
199.6(b), in order to be an authorized provider under TRICARE, must be a
participating provider for all claims.
(B) A SNF or a HHA, in order to be an authorized provider under
TRICARE, must enter into a participation agreement with TRICARE for all
claims.
(C) Corporate services providers authorized as CHAMPUS providers
under the provisions of paragraph (f) of this
[[Page 170]]
section must enter into a participation agreement as provided by the
Director, OCHAMPUS, or designee.
(ii) Voluntary participation--(A) Total claims participation: The
participating provider program. A CHAMPUS-authorized provider that is
not required to participate by this part may become a participating
provider by entering into an agreement or memorandum of understanding
(MOU) with the Director, OCHAMPUS, or designee, which includes, but is
not limited to, the provisions of paragraph (a)(13) of this section. The
Director, OCHAMPUS, or designee, may include in a participating provider
agreement/MOU provisions that establish between CHAMPUS and a class,
category, type, or specific provider, uniform procedures and conditions
which encourage provider participation while improving beneficiary
access to benefits and contributing to CHAMPUS efficiency. Such
provisions shall be otherwise allowed by this part or by DoD Directive
or DoD Instruction specifically pertaining to CHAMPUS claims
participation. Participating provider program provisions may be
incorporated into an agreement/MOU to establish a specific CHAMPUS-
provider relationship, such as a preferred provider arrangement.
(B) Claim-specific participation. A CHAMPUS-authorized provider that
is not required to participate and that has not entered into a
participation agreement pursuant to paragraph (a)(8)(ii)(A) of this
section may elect to be a participating provider on a claim-by-claim
basis by indicating ``accept assignment'' on each claim form for which
participation is elected.
(iii) Claim-by-claim participation. Individual providers that are
not participating providers pursuant to paragraph (a)(8)(ii) of this
section may elect to participate on a claim-by-claim basis. They may do
so by signing the appropriate space on the claims form and submitting it
to the appropriate TRICARE contractor on behalf of the beneficiary.
(9) Limitation to authorized institutional provider designation.
Authorized institutional provider status granted to a specific
institutional provider applicant does not extend to any institution-
affiliated provider, as defined in Sec. 199.2, of that specific
applicant.
(10) Authorized provider. A hospital or institutional provider,
physician, or other individual professional provider, or other provider
of services or supplies specifically authorized in this chapter to
provide benefits under CHAMPUS. In addition, to be an authorized CHAMPUS
provider, any hospital which is a CHAMPUS participating provider under
paragraph (a)(7) of this section, shall be a participating provider for
all care, services, or supplies furnished to an active duty member of
the uniformed services for which the active duty member is entitled
under 10 U.S.C. 1074(c). As a participating provider for active duty
members, the CHAMPUS authorized hospital shall provide such care,
services, and supplies in accordance with the payment rules of Sec.
199.16 of this part. The failure of any CHAMPUS participating hospital
to be a participating provider for any active duty member subjects the
hospital to termination of the hospital's status as a CHAMPUS authorized
provider for failure to meet the qualifications established by this
part.
(11) Balance billing limits--(i) In general. Individual providers
including providers salaried or under contract by an institutional
provider and other providers who are not participating providers may not
balance bill a beneficiary an amount that exceeds the applicable balance
billing limit. The balance billing limit shall be the same percentage as
the Medicare limiting charge percentage for nonparticipating
practitioners and suppliers.
(ii) Waiver. The balance billing limit may be waived by the
Director, OCHAMPUS on a case-by-case basis if requested by a CHAMPUS
beneficiary. A decision by the Director, OCHAMPUS to waive or not waive
the limit in any particular case is not subject to the appeal and
hearing procedures of Sec. 199.10.
(iii) Compliance. Failure to comply with the balance billing limit
shall be considered abuse and/or fraud and grounds of exclusion or
suspension of the provider under Sec. 199.9.
(12) Medical records. CHAMPUS-authorized provider organizations and
individuals providing clinical services
[[Page 171]]
shall maintain adequate clinical records to substantiate that specific
care was actually furnished, was medically necessary, and appropriate,
and identify(ies) the individual(s) who provided the care. This applies
whether the care is inpatient or outpatient. The minimum requirements
for medical record documentation are set forth by all of the following:
(i) The cognizant state licensing authority;
(ii) The Joint Commission on Accreditation of Healthcare
Organizations, or the appropriate Qualified Accreditation Organization
as defined in Sec. 199.2;
(iii) Standards of practice established by national medical
organizations; and
(iv) This part.
(13) Participation agreements. A participation agreement otherwise
required by this part shall include, in part, all of the following
provisions requiring that the provider shall:
(i) Not charge a beneficiary for the following:
(A) Services for which the provider is entitled to payment from
CHAMPUS;
(B) Services for which the beneficiary would be entitled to have
CHAMPUS payment made had the provider complied with certain procedural
requirements.
(C) Services not medically necessary and appropriate for the
clinical management of the presenting illness, injury, disorder or
maternity;
(D) Services for which a beneficiary would be entitled to payment
but for a reduction or denial in payment as a result of quality review;
and
(E) Services rendered during a period in which the provider was not
in compliance with one or more conditions of authorization;
(ii) Comply with the applicable provisions of this part and related
CHAMPUS administrative policy;
(iii) Accept the CHAMPUS determined allowable payment combined with
the cost-share, deductible, and other health insurance amounts payable
by, or on behalf of, the beneficiary, as full payment for CHAMPUS
allowed services;
(iv) Collect from the CHAMPUS beneficiary those amounts that the
beneficiary has a liability to pay for the CHAMPUS deductible and cost-
share;
(v) Permit access by the Director, OCHAMPUS, or designee, to the
clinical record of any CHAMPUS beneficiary, to the financial and
organizational records of the provider, and to reports of evaluations
and inspections conducted by state, private agencies or organizations;
(vi) Provide the Director, OCHAMPUS, or designee, prompt written
notification of the provider's employment of an individual who, at any
time during the twelve months preceding such employment, was employed in
a managerial, accounting, auditing, or similar capacity by an agency or
organization which is responsible, directly or indirectly for decisions
regarding Department of Defense payments to the provider;
(vii) Cooperate fully with a designated utilization and clinical
quality management organization which has a contract with the Department
of Defense for the geographic area in which the provider renders
services;
(viii) Obtain written authorization before rendering designated
services or items for which CHAMPUS cost-share may be expected;
(ix) Maintain clinical and other records related to individuals for
whom CHAMPUS payment was made for services rendered by the provider, or
otherwise under arrangement, for a period of 60 months from the date of
service;
(x) Maintain contemporaneous clinical records that substantiate the
clinical rationale for each course of treatment, periodic evaluation of
the efficacy of treatment, and the outcome at completion or
discontinuation of treatment;
(xi) Refer CHAMPUS beneficiaries only to providers with which the
referring provider does not have an economic interest, as defined in
Sec. 199.2; and
(xii) Limit services furnished under arrangement to those for which
receipt of payment by the CHAMPUS authorized provider discharges the
payment liability of the beneficiary.
(14) Implementing instructions. The Director, OCHAMPUS, or a
designee, shall issue CHAMPUS policies, instructions, procedures, and
guidelines, as may be necessary to implement the intent of this section.
[[Page 172]]
(15) Exclusion. Regardless of any provision in this section, a
provider who is suspended, excluded, or terminated under Sec. 199.9 of
this part is specifically excluded as an authorized CHAMPUS provider.
(b) Institutional providers--(1) General. Institutional providers
are those providers who bill for services in the name of an
organizational entity (such as hospital and skilled nursing facility),
rather than in the name of a person. The term ``institutional provider''
does not include professional corporations or associations qualifying as
a domestic corporation under Sec. 301.7701-5 of the Internal Revenue
Service Regulations nor does it include other corporations that provide
principally professional services. Institutional providers may provide
medical services and supplies on either an inpatient or outpatient
basis.
(i) Preauthorization. Preauthorization may be required by the
Director, OCHAMPUS for any health care service for which payment is
sought under CHAMPUS. (See Sec. Sec. 199.4 and 199.15 for further
information on preauthorization requirements.)
(ii) Billing practices.
(A) Each institutional billing, including those institutions subject
to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined
all-inclusive rate reimbursement method, must be itemized fully and
sufficiently descriptive for the CHAMPUS to make a determination of
benefits.
(B) Institutional claims subject to the CHAMPUS DRG-based
reimbursement method or a CHAMPUS-determined all-inclusive rate
reimbursement method, may be submitted only after the beneficiary has
been discharged or transferred from the institutional provider's
facility or program.
(C) Institutional claims for Residential Treatment Centers and all
other institutional providers, except those listed in (B) above, should
be submitted to the appropriate CHAMPUS fiscal intermediary at least
every 30 days.
(2) Nondiscrimination policy. Except as provided below, payment may
not be made for inpatient or outpatient care provided and billed by an
institutional provider found by the Federal Government to practice
discrimination in the admission of patients to its services on the basis
of race, color, or national origin. Reimbursement may not be made to a
beneficiary who pays for care provided by such a facility and submits a
claim for reimbursement. In the following circumstances, the Secretary
of Defense, or a designee, may authorize payment for care obtained in an
ineligible facility:
(i) Emergency care. Emergency inpatient or outpatient care.
(ii) Care rendered before finding of a violation. Care initiated
before a finding of a violation and which continues after such violation
when it is determined that a change in the treatment facility would be
detrimental to the health of the patient, and the attending physician so
certifies.
(iii) Other facility not available. Care provided in an ineligible
facility because an eligible facility is not available within a
reasonable distance.
(3) Procedures for qualifying as a CHAMPUS-approved institutional
provider. General and special hospitals otherwise meeting the
qualifications outlined in paragraphs (b)(4) (i), (ii), and (iii), of
this section are not required to request CHAMPUS approval formally.
(i) JCAH accreditation status. Each CHAMPUS fiscal intermediary
shall keep informed as to the current JCAH accreditation status of all
hospitals and skilled nursing facilities in its area; and the provider's
status under Medicare, particularly with regard to compliance with title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d(1)). The Director,
OCHAMPUS, or a designee, shall specifically approve all other authorized
institutional providers providing services to CHAMPUS beneficiaries. At
the discretion of the Director, OCHAMPUS, any facility that is certified
and participating as a provider of services under title XVIII of the
Social Security Act (Medicare), may be deemed to meet CHAMPUS
requirements. The facility must be providing a type and level of service
that is authorized by this part.
(ii) Required to comply with criteria. Facilities seeking CHAMPUS
approval will be expected to comply with appropriate criteria set forth
in paragraph
[[Page 173]]
(b)(4) of this section. They also are required to complete and submit
CHAMPUS Form 200, ``Required Information, Facility Determination
Instructions,'' and provide such additional information as may be
requested by OCHAMPUS. An onsite evaluation, either scheduled or
unscheduled, may be conducted at the discretion of the Director,
OCHAMPUS, or a designee. The final determination regarding approval,
reapproval, or disapproval of a facility will be provided in writing to
the facility and the appropriate CHAMPUS fiscal intermediary.
(iii) Notice of peer review rights. All health care facilities
subject to the DRG-based payment system shall provide CHAMPUS
beneficiaries, upon admission, with information about peer review
including their appeal rights. The notices shall be in a form specified
by the Director, OCHAMPUS.
(iv) Surveying of facilities. The surveying of newly established
institutional providers and the periodic resurveying of all authorized
institutional providers is a continuing process conducted by OCHAMPUS.
(v) Institutions not in compliance with CHAMPUS standards. If a
determination is made that an institution is not in compliance with one
or more of the standards applicable to its specific category of
institution, CHAMPUS shall take immediate steps to bring about
compliance or terminate the approval as an authorized institution in
accordance with Sec. 199.9(f)(2).
(vi) Participation agreements required for some hospitals which are
not Medicare-participating. Notwithstanding the provisions of this
paragraph (B)(3), a hospital which is subject to the CHAMPUS DRG-based
payment system but which is not a Medicare-participating hospital must
request and sign an agreement with OCHAMPUS. By signing the agreement,
the hospital agrees to participate on all CHAMPUS inpatient claims and
accept the requirements for a participating provider as contained in
paragraph (a)(8) of Sec. 199.6. Failure to sign such an agreement shall
disqualify such hospital as a CHAMPUS-approved institutional provider.
(4) Categories of institutional providers. The following categories
of institutional providers may be reimbursed by CHAMPUS for services
provided CHAMPUS beneficiaries subject to any and all definitions,
conditions, limitation, and exclusions specified or enumerated in this
part.
(i) Hospitals, acute care, general and special. An institution that
provides inpatient services, that also may provide outpatient services
(including clinical and ambulatory surgical services), and that:
(A) Is engaged primarily in providing to inpatients, by or under the
supervision of physicians, diagnostic and therapeutic services for the
medical or surgical diagnosis and treatment of illness, injury, or
bodily malfunction (including maternity).
(B) Maintains clinical records on all inpatients (and outpatients if
the facility operates an outpatient department or emergency room).
(C) Has bylaws in effect with respect to its operations and medical
staff.
(D) Has a requirement that every patient be under the care of a
physician.
(E) Provides 24-hour nursing service rendered or supervised by a
registered professional nurse, and has a licensed practical nurse or
registered professional nurse on duty at all times.
(F) Has in effect a hospital utilization review plan that is
operational and functioning.
(G) In the case of an institution in a state in which state or
applicable local law provides for the licensing of hospitals, the
hospital:
(1) Is licensed pursuant to such law, or
(2) Is approved by the agency of such state or locality responsible
for licensing hospitals as meeting the standards established for such
licensing.
(H) Has in effect an operating plan and budget.
(I) Is accredited by the JCAH or meets such other requirements as
the Secretary of Health and Human Services, the Secretary of
Transportation, or the Secretary of Defense finds necessary in the
interest of the health and safety of patients who are admitted to and
furnished services in the institution.
(ii) Organ transplant centers. To obtain TRICARE approval as an
organ transplant center, the center must be a
[[Page 174]]
Medicare approved transplant center or meet the criteria as established
by the Executive Director, TMA, or a designee.
(iii) Organ transplant consortia. TRICARE shall approve individual
pediatric organ transplant centers that meet the criteria established by
the Executive Director, TMA, or a designee.
(iv) Hospitals, psychiatric. A psychiatric hospital is an
institution which is engaged primarily in providing services to
inpatients for the diagnosis and treatment of mental disorders.
(A) There are two major categories of psychiatric hospitals:
(1) The private psychiatric hospital category includes both
proprietary and the not-for-profit nongovernmental institutions.
(2) The second category is those psychiatric hospitals that are
controlled, financed, and operated by departments or agencies of the
local, state, or Federal Government and always are operated on a not-
for-profit basis.
(B) In order for the services of a psychiatric hospital to be
covered, the hospital shall comply with the provisions outlined in
paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be
accredited under an accrediting organization approved by the Director,
in order for their services to be cost-shared under CHAMPUS. In the case
of those psychiatric hospitals that are not accredited because they have
not been in operation a sufficient period of time to be eligible to
request an accreditation survey, the Director, or a designee, may grant
temporary approval if the hospital is certified and participating under
Title XVIII of the Social Security Act (Medicare, Part A). This
temporary approval expires 12 months from the date on which the
psychiatric hospital first becomes eligible to request an accreditation
survey by an accrediting organization approved by the Director.
(C) Factors to be considered in determining whether CHAMPUS will
cost-share care provided in a psychiatric hospital include, but are not
limited to, the following considerations:
(1) Is the prognosis of the patient such that care provided will
lead to resolution or remission of the mental illness to the degree that
the patient is of no danger to others, can perform routine daily
activities, and can be expected to function reasonably outside the
inpatient setting?
(2) Can the services being provided be provided more economically in
another facility or on an outpatient basis?
(3) Are the charges reasonable?
(4) Is the care primarily custodial or domiciliary? (Custodial or
domiciliary care of the permanently mentally ill or retarded is not a
benefit under the Basic Program.)
(D) Although psychiatric hospitals are accredited under an
accrediting organization approved by Director, their medical records
must be maintained in accordance with accrediting organization's current
standards manual, along with the requirements set forth in Sec.
199.7(b)(3). The hospital is responsible for assuring that patient
services and all treatment are accurately documented and completed in a
timely manner.
(v) Long Term Care Hospital (LTCH). LTCHs must meet all the criteria
for classification as an LTCH under 42 CFR part 412, subpart O, as well
as all of the requirements of this part in order to be considered an
authorized LTCH under the TRICARE program.
(A) In order for the services of LTCHs to be covered, the hospitals
must comply with the provisions outlined in paragraph (b)(4)(i) of this
section. In addition, in order for services provided by such hospitals
to be covered by TRICARE, they must be primarily for the treatment of
the presenting illness.
(B) Custodial or domiciliary care is not coverable under TRICARE,
even if rendered in an otherwise authorized LTCH.
(C) The controlling factor in determining whether a beneficiary's
stay in a LTCH is coverable by TRICARE is the level of professional
care, supervision, and skilled nursing care that the beneficiary
requires, in addition to the diagnosis, type of condition, or degree of
functional limitations. The type and level of medical services required
or rendered is controlling for purposes of extending TRICARE benefits;
not the type of provider or condition of the beneficiary.
[[Page 175]]
(vi) Skilled nursing facility. A skilled nursing facility is an
institution (or a distinct part of an institution) that is engaged
primarily in providing to inpatients medically necessary skilled nursing
care, which is other than a nursing home or intermediate facility, and
which:
(A) Has policies that are developed with the advice of (and with
provisions for review on a periodic basis by) a group of professionals,
including one or more physicians and one or more registered nurses, to
govern the skilled nursing care and related medical services it
provides.
(B) Has a physician, a registered nurse, or a medical staff
responsible for the execution of such policies.
(C) Has a requirement that the medical care of each patient must be
under the supervision of a physician, and provides for having a
physician available to furnish necessary medical care in case of an
emergency.
(D) Maintains clinical records on all patients.
(E) Provides 24-hour skilled nursing service that is sufficient to
meet nursing needs in accordance with the policies developed as provided
in paragraph (b)(4)(iv)(A) of this section, and has at least one
registered professional nurse employed full-time.
(F) Provides appropriate methods and procedures for the dispensing
and administering of drugs and biologicals.
(G) Has in effect a utilization review plan that is operational and
functioning.
(H) In the case of an institution in a state in which state or
applicable local law provides for the licensing of this type facility,
the institution:
(1) Is licensed pursuant to such law, or
(2) Is approved by the agency of such state or locality responsible
for licensing such institutions as meeting the standards established for
such licensing.
(I) Has in effect an operating plan and budget.
(J) Meets such provisions of the most current edition of the Life
Safety Code \8\ as are applicable to nursing facilities; except that if
the Secretary of Health and Human Services has waived, for such periods,
as deemed appropriate, specific provisions of such code which, if
rigidly applied, would result in unreasonable hardship upon a nursing
facility.
---------------------------------------------------------------------------
\8\ Compiled and published by the National Fire Protection
Association, Batterymarch Park, Quincy, Massachusetts 02269.
---------------------------------------------------------------------------
(K) Is an authorized provider under the Medicare program, and meets
the requirements of Title 18 of the social Security Act, sections
1819(a), (b), (c), and (d) (42 U.S.C. 1395i-3(a)-(d)).
Note: If a pediatric SNF is certified by Medicaid, it will be
considered to meet the Medicare certification requirement in order to be
an authorized provider under TRICARE.
(vii) Residential treatment centers. This paragraph (b)(4)(vii)
establishes the definition of and eligibility standards and requirements
for residential treatment centers (RTCs).
(A) Organization and administration--(1) Definition. A Residential
Treatment Center (RTC) is a facility or a distinct part of a facility
that provides to beneficiaries under 21 years of age a medically
supervised, interdisciplinary program of mental health treatment. An RTC
is appropriate for patients whose predominant symptom presentation is
essentially stabilized, although not resolved, and who have persistent
dysfunction in major life areas. Residential treatment may be
complemented by family therapy and case management for community based
resources. Discharge planning should support transitional care for the
patient and family, to include resources available in the geographic
area where the patient will be residing. The extent and pervasiveness of
the patient's problems require a protected and highly structured
therapeutic environment. Residential treatment is differentiated from:
(i) Acute psychiatric care, which requires medical treatment and 24-
hour availability of a fullrange of diagnostic and therapeutic services
to establish and implement an effective plan of care which will reverse
life-threatening and/or severely incapacitating symptoms;
[[Page 176]]
(ii) Partial hospitalization, which provides a less than 24-hour-
per-day, seven-day-per-week treatment program for patients who continue
to exhibit psychiatric problems but can function with support in some of
the major life areas;
(iii) A group home, which is a professionally directed living
arrangement with the availability of psychiatric consultation and
treatment for patients with significant family dysfunction and/or
chronic but stable psychiatric disturbances;
(iv) Therapeutic school, which is an educational program
supplemented by psychological and psychiatric services;
(v) Facilities that treat patients with a primary diagnosis of
substance use disorder; and
(vi) Facilities providing care for patients with a primary diagnosis
of mental retardation or developmental disability.
(2) Eligibility. (i) In order to qualify as a TRICARE authorized
provider, every RTC must meet the minimum basic standards set forth in
paragraphs (b)(4)(vii)(A) through (C) of this section, and as well as
such additional elaborative criteria and standards as the Director
determines are necessary to implement the basic standards.
(ii) To qualify as a TRICARE authorized provider, the facility is
required to be licensed and operate in substantial compliance with state
and federal regulations.
(iii) The facility is currently accredited by an accrediting
organization approved by the Director.
(iv) The facility has a written participation agreement with
OCHAMPUS. The RTC is not a CHAMPUS-authorized provider and CHAMPUS
benefits are not paid for services provided until the date upon which a
participation agreement is signed by the Director.
(B) Participation agreement requirements. In addition to other
requirements set forth in this paragraph (b)(4)(vii), for the services
of an RTC to be authorized, the RTC shall have entered into a
Participation Agreement with OCHAMPUS. The period of a participation
agreement shall be specified in the agreement, and will generally be for
not more than five years. In addition to review of a facility's
application and supporting documentation, an on-site inspection by
OCHAMPUS authorized personnel may be required prior to signing a
Participation Agreement. Retroactive approval is not given. In addition,
the Participation Agreement shall include provisions that the RTC shall,
at a minimum:
(1) Render residential treatment center inpatient services to
eligible CHAMPUS beneficiaries in need of such services, in accordance
with the participation agreement and CHAMPUS regulation;
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14(f) or such other method as determined by the
Director;
(3) Accept the CHAMPUS all-inclusive per diem rate as payment in
full and collect from the CHAMPUS beneficiary or the family of the
CHAMPUS beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of CHAMPUS;
(4) Make all reasonable efforts acceptable to the Director, to
collect those amounts, which represents the beneficiary's liability, as
defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to CHAMPUS;
(6) Submit claims for services provided to CHAMPUS beneficiaries at
least every 30 days (except to the extent a delay is necessitated by
efforts to first collect from other health insurance). If claims are not
submitted at least every 30 days, the RTC agrees not to bill the
beneficiary or the beneficiary's family for any amounts disallowed by
CHAMPUS;
(7) Certify that:
(i) It is and will remain in compliance with the TRICARE standards
and provisions of paragraph (b)(4)(vii) of this section establishing
standards for Residential Treatment Centers; and
(ii) It will maintain compliance with the CHAMPUS Standards for
Residential Treatment Centers Serving Children and Adolescents with
Mental Disorders, as issued by the Director, except for any such
standards regarding
[[Page 177]]
which the facility notifies the Director that it is not in compliance.
(8) Designate an individual who will act as liaison for CHAMPUS
inquiries. The RTC shall inform OCHAMPUS in writing of the designated
individual;
(9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data
certified by an independent accounting firm or other agency as
authorized by the Director, OCHAMPUS;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning accreditation requirements,
preauthorization, concurrent care review, claims processing, beneficiary
liability, double coverage, utilization and quality review, and other
matters;
(11) Grant the Director, or designee, the right to conduct quality
assurance audits or accounting audits with full access to patients and
records (including records relating to patients who are not CHAMPUS
beneficiaries) to determine the quality and cost-effectiveness of care
rendered. The audits may be conducted on a scheduled or unscheduled
(unannounced) basis. This right to audit/review includes, but is not
limited to:
(i) Examination of fiscal and all other records of the RTC which
would confirm compliance with the participation agreement and
designation as a TRICARE authorized RTC;
(ii) Conducting such audits of RTC records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspections conducted by
federal, state and local government, and private agencies and
organizations;
(iv) Conducting on-site inspections of the facilities of the RTC and
interviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required;
(v) Audits conducted by the United States Government Accountability
Office.
(C) Other requirements applicable to RTCs. (1) Even though an RTC
may qualify as a TRICARE authorized provider and may have entered into a
participation agreement with CHAMPUS, payment by CHAMPUS for particular
services provided is contingent upon the RTC also meeting all conditions
set forth in Sec. 199.4 especially all requirements of Sec.
199.4(b)(4).
(2) The RTC shall provide inpatient services to CHAMPUS
beneficiaries in the same manner it provides inpatient services to all
other patients. The RTC may not discriminate against CHAMPUS
beneficiaries in any manner, including admission practices, placement in
special or separate wings or rooms, or provisions of special or limited
treatment.
(3) The RTC shall assure that all certifications and information
provided to the Director, incident to the process of obtaining and
retaining authorized provider status is accurate and that it has no
material errors or omissions. In the case of any misrepresentations,
whether by inaccurate information being provided or material facts
withheld, authorized status will be denied or terminated, and the RTC
will be ineligible for consideration for authorized provider status for
a two year period.
(viii) Christian Science sanatoriums. The services obtained in
Christian Science sanatoriums are covered by CHAMPUS as inpatient care.
To qualify for coverage, the sanatorium either must be operated by, or
be listed and certified by the First Church of Christ, Scientist.
(ix) Infirmaries. Infirmaries are facilities operated by student
health departments of colleges and universities to provide inpatient or
outpatient care to enrolled students. Charges for care provided by such
facilities will not be cost-shared by CHAMPUS if the student would not
be charged in the absence of CHAMPUS, or if student is covered by a
mandatory student health insurance plan, in which enrollment is required
as a part of the student's school registration and the charges by the
college or university include a premium for the student health insurance
coverage. CHAMPUS will cost-share only if enrollment in the student
health program or health insurance plan is voluntary.
[[Page 178]]
Note: An infirmary in a boarding school also may qualify under this
provision, subject to review and approval by the Director, OCHAMPUS or a
designee.
(x) Other special institution providers. (A) General. (1) Care
provided by certain special institutional providers (on either an
inpatient or outpatient basis), may be cost-shared by CHAMPUS under
specified circumstances and only if the provider is specifically
identified in paragraph (b)(4)(x) of this section.
(i) The course of treatment is prescribed by a doctor of medicine or
osteopathy.
(ii) The patient is under the supervision of a physician during the
entire course of the inpatient admission or the outpatient treatment.
(iii) The type and level of care and service rendered by the
institution are otherwise authorized by this part.
(iv) The facility meets all licensing or other certification
requirements that are extant in the jurisdiction in which the facility
is located geographically.
(v) Is other than a nursing home, intermediate care facility, home
for the aged, halfway house, or other similar institution.
(vi) Is accredited by the JCAH or other CHAMPUS-approved
accreditation organization, if an appropriate accreditation program for
the given type of facility is available. As future accreditation
programs are developed to cover emerging specialized treatment programs,
such accreditation will be a prerequisite to coverage by CHAMPUS for
services provided by such facilities.
(2) To ensure that CHAMPUS beneficiaries are provided quality care
at a reasonable cost when treated by a special institutional provider,
the Director, OCHAMPUS may:
(i) Require prior approval of all admissions to special
institutional providers.
(ii) Set appropriate standards for special institutional providers
in addition to or in the absence of JCAHO accreditation.
(iii) Monitor facility operations and treatment programs on a
continuing basis and conduct onsite inspections on a scheduled and
unscheduled basis.
(iv) Negotiate agreements of participation.
(v) Terminate approval of a case when it is ascertained that a
departure from the facts upon which the admission was based originally
has occurred.
(vi) Declare a special institutional provider not eligible for
CHAMPUS payment if that facility has been found to have engaged in
fraudulent or deceptive practices.
(3) In general, the following disclaimers apply to treatment by
special institutional providers:
(i) Just because one period or episode of treatment by a facility
has been covered by CHAMPUS may not be construed to mean that later
episodes of care by the same or similar facility will be covered
automatically.
(ii) The fact that one case has been authorized for treatment by a
specific facility or similar type of facility may not be construed to
mean that similar cases or later periods of treatment will be extended
CHAMPUS benefits automatically.
(B) Types of providers. The following is a list of facilities that
have been designated specifically as special institutional providers.
(1) Free-standing ambulatory surgical centers. Care provided by
freestanding ambulatory surgical centers may be cost-shared by CHAMPUS
under the following circumstances:
(i) The treatment is prescribed and supervised by a physician.
(ii) The type and level of care and services rendered by the center
are otherwise authorized by this part.
(iii) The center meets all licensing or other certification
requirements of the jurisdiction in which the facility is located.
(iv) The center is accredited by the JCAH, the Accreditation
Association for Ambulatory Health Care, Inc. (AAAHC), or such other
standards as authorized by the Director, OCHAMPUS.
(v) A childbirth procedure provided by a CHAMPUS-approved free-
standing ambulatory surgical center shall not be cost-shared by the
CHAMPUS unless the surgical center is also a CHAMPUS-approved birthing
center institutional provider as established by
[[Page 179]]
the birthing center provider certification requirement of this
Regulation.
(2) [Reserved]
(xi) Birthing centers. A birthing center is a freestanding or
institution-affiliated outpatient maternity care program which
principally provides a planned course of outpatient prenatal care and
outpatient childbirth service limited to low-risk pregnancies; excludes
care for high-risk pregnancies; limits childbirth to the use of natural
childbirth procedures; and provides immediate newborn care.
(A) Certification requirements. A birthing center which meets the
following criteria may be designated as an authorized CHAMPUS
institutional provider:
(1) The predominant type of service and level of care rendered by
the center is otherwise authorized by this part.
(2) The center is licensed to operate as a birthing center where
such license is available, or is specifically licensed as a type of
ambulatory health care facility where birthing center specific license
is not available, and meets all applicable licensing or certification
requirements that are extant in the state, county, municipality, or
other political jurisdiction in which the center is located.
(3) The center is accredited by a nationally recognized
accreditation organization whose standards and procedures have been
determined to be acceptable by the Director, OCHAMPUS, or a designee.
(4) The center complies with the CHAMPUS birthing center standards
set forth in this part.
(5) The center has entered into a participation agreement with
OCHAMPUS in which the center agrees, in part, to:
(i) Participate in CHAMPUS and accept payment for maternity services
based upon the reimbursement methodology for birthing centers;
(ii) Collect from the CHAMPUS beneficiary only those amounts that
represent the beneficiary's liability under the participation agreement
and the reimbursement methodology for birthing centers, and the amounts
for services and supplies that are not a benefit of the CHAMPUS;
(iii) Permit access by the Director, OCHAMPUS, or a designee, to the
clinical record of any CHAMPUS beneficiary, to the financial and
organizational records of the center, and to reports of evaluations and
inspections conducted by state or private agencies or organizations;
(iv) Submit claims first to all health benefit and insurance plans
primary to the CHAMPUS to which the beneficiary is entitled and to
comply with the double coverage provisions of this part;
(v) Notify CHAMPUS in writing within 7 days of the emergency
transport of any CHAMPUS beneficiary from the center to an acute care
hospital or of the death of any CHAMPUS beneficiary in the center.
(6) A birthing center shall not be a CHAMPUS-authorized
institutional provider and CHAMPUS benefits shall not be paid for any
service provided by a birthing center before the date the participation
agreement is signed by the Director, OCHAMPUS, or a designee.
(B) CHAMPUS birthing center standards. (1) Environment: The center
has a safe and sanitary environment, properly constructed, equipped, and
maintained to protect health and safety and meets the applicable
provisions of the ``Life Safety Code'' of the National Fire Protection
Association.
(2) Policies and procedures: The center has written administrative,
fiscal, personnel and clinical policies and procedures which
collectively promote the provision of high-quality maternity care and
childbirth services in an orderly, effective, and safe physical and
organizational environment.
(3) Informed consent: Each CHAMPUS beneficiary admitted to the
center will be informed in writing at the time of admission of the
nature and scope of the center's program and of the possible risks
associated with maternity care and childbirth in the center.
(4) Beneficiary care: Each woman admitted will be cared for by or
under the direct supervision of a specific physician or a specific
certified nurse-midwife who is otherwise eligible as a CHAMPUS
individual professional provider.
(5) Medical direction: The center has written memoranda of
understanding (MOU) for routine consultation and
[[Page 180]]
emergency care with an obstetrician-gynecologist who is certified or is
eligible for certification by the American Board of Obstetrics and
Gynecology or the American Osteopathic Board of Obstetrics and
Gynecology and with a pediatrician who is certified or eligible for
certification by the American Board of Pediatrics or by the American
Osteopathic Board of Pediatrics, each of whom have admitting privileges
to at least one backup hospital. In lieu of a required MOU, the center
may employ a physician with the required qualifications. Each MOU must
be renewed annually.
(6) Admission and emergency care criteria and procedures. The center
has written clinical criteria and administrative procedures, which are
reviewed and approved annually by a physician related to the center as
required by paragraph (b)(4)(xi)(B)(5) above, for the exclusion of a
woman with a high-risk pregnancy from center care and for management of
maternal and neonatal emergencies.
(7) Emergency treatment. The center has a written memorandum of
understanding (MOU) with at least one backup hospital which documents
that the hospital will accept and treat any woman or newborn transferred
from the center who is in need of emergency obstetrical or neonatal
medical care. In lieu of this MOU with a hospital, a birthing center may
have an MOU with a physician, who otherwise meets the requirements as a
CHAMPUS individual professional provider, and who has admitting
privileges to a backup hospital capable of providing care for critical
maternal and neonatal patients as demonstrated by a letter from that
hospital certifying the scope and expected duration of the admitting
privileges granted by the hospital to the physician. The MOU must be
reviewed annually.
(8) Emergency medical transportation. The center has a written
memorandum of understanding (MOU) with at least one ambulance service
which documents that the ambulance service is routinely staffed by
qualified personnel who are capable of the management of critical
maternal and neonatal patients during transport and which specifies the
estimated transport time to each backup hospital with which the center
has arranged for emergency treatment as required in paragraph
(b)(4)(xi)(B)(7) above. Each MOU must be renewed annually.
(9) Professional staff. The center's professional staff is legally
and professionally qualified for the performance of their professional
responsibilities.
(10) Medical records. The center maintains full and complete written
documentation of the services rendered to each woman admitted and each
newborn delivered. A copy of the informed consent document required by
paragraph (b)(4)(xi)(B)(3), above, which contains the original signature
of the CHAMPUS beneficiary, signed and dated at the time of admission,
must be maintained in the medical record of each CHAMPUS beneficiary
admitted.
(11) Quality assurance. The center has an organized program for
quality assurance which includes, but is not limited to, written
procedures for regularly scheduled evaluation of each type of service
provided, of each mother or newborn transferred to a hospital, and of
each death within the facility.
(12) Governance and administration. The center has a governing body
legally responsible for overall operation and maintenance of the center
and a full-time employee who has authority and responsibility for the
day-to-day operation of the center.
(xii) Psychiatric and substance use disorder partial hospitalization
programs. This paragraph (b)(4)(xii) establishes the definition of and
eligibility standards and requirements for psychiatric and substance use
disorder partial hospitalization programs.
(A) Organization and administration--(1) Definition. Partial
hospitalization is defined as a time-limited, ambulatory, active
treatment program that offers therapeutically intensive, coordinated,
and structured clinical services within a stable therapeutic milieu.
Partial hospitalization programs serve patients who exhibit psychiatric
symptoms, disturbances of conduct, and decompensating conditions
affecting mental health. Partial hospitalization
[[Page 181]]
is appropriate for those whose psychiatric and addiction-related
symptoms or concomitant physical and emotional/behavioral problems can
be managed outside the hospital for defined periods of time with support
in one or more of the major life areas. A partial hospitalization
program for the treatment of substance use disorders is an addiction-
focused service that provides active treatment to children and
adolescents, or adults aged 18 and over.
(2) Eligibility. (i) To qualify as a TRICARE authorized provider,
every partial hospitalization program must meet minimum basic standards
set forth in paragraphs (b)(4)(xii)(A) through (D) of this section, as
well as such additional elaborative criteria and standards as the
Director determines are necessary to implement the basic standards. Each
partial hospitalization program must be either a distinct part of an
otherwise-authorized institutional provider or a free-standing program.
Approval of a hospital by TRICARE is sufficient for its partial
hospitalization program to be an authorized TRICARE provider. Such
hospital-based partial hospitalization programs are not required to be
separately authorized by TRICARE.
(ii) To be approved as a TRICARE authorized provider, the facility
is required to be licensed and operate in substantial compliance with
state and federal regulations.
(iii) The facility is required to be currently accredited by an
accrediting organization approved by the Director. Each PHP authorized
to treat substance use disorder must be accredited to provide the level
of required treatment by an accreditation body approved by the Director.
(iv) The facility is required to have a written participation
agreement with OCHAMPUS. The PHP is not a CHAMPUS-authorized provider
and CHAMPUS benefits are not paid for services provided until the date
upon which a participation agreement is signed by the Director.
(B) Participation agreement requirements. In addition to other
requirements set forth in this paragraph (b)(4)(xii), in order for the
services of a PHP to be authorized, the PHP shall have entered into a
Participation Agreement with OCHAMPUS. A single consolidated
participation agreement is acceptable for all units of the TRICARE
authorized facility granted that all programs meet the requirements of
this part. The period of a Participation Agreement shall be specified in
the agreement, and will generally be for not more than five years. The
PHP shall not be considered to be a CHAMPUS authorized provider and
CHAMPUS payments shall not be made for services provided by the PHP
until the date the participation agreement is signed by the Director. In
addition to review of a facility's application and supporting
documentation, an on-site inspection by OCHAMPUS authorized personnel
may be required prior to signing a participation agreement. The
Participation Agreement shall include at least the following
requirements:
(1) Render partial hospitalization program services to eligible
CHAMPUS beneficiaries in need of such services, in accordance with the
participation agreement and CHAMPUS regulation.
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14, or such other method as determined by the
Director;
(3) Accept the CHAMPUS all-inclusive per diem rate as payment in
full and collect from the CHAMPUS beneficiary or the family of the
CHAMPUS beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of CHAMPUS;
(4) Make all reasonable efforts acceptable to the Director to
collect those amounts, which represent the beneficiary's liability, as
defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to CHAMPUS;
(6) Submit claims for services provided to CHAMPUS beneficiaries at
least every 30 days (except to the extent a delay is necessitated by
efforts to first collect from other health insurance). If claims are not
submitted at least every 30 days, the PHP agrees not
[[Page 182]]
to bill the beneficiary or the beneficiary's family for any amounts
disallowed by CHAMPUS;
(7) Certify that:
(i) It is and will remain in compliance with the TRICARE standards
and provisions of paragraph (b)(4)(xii) of this section establishing
standards for psychiatric and substance use disorder partial
hospitalization programs; and
(ii) It will maintain compliance with the CHAMPUS Standards for
Psychiatric Substance Use Disorder Partial Hospitalization Programs, as
issued by the Director, except for any such standards regarding which
the facility notifies the Director, or designee, that it is not in
compliance.
(8) Designate an individual who will act as liaison for CHAMPUS
inquiries. The PHP shall inform the Director, or designee, in writing of
the designated individual;
(9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data
certified by an independent accounting firm or other agency as
authorized by the Director;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning accreditation requirements,
preauthorization, concurrent care review, claims processing, beneficiary
liability, double coverage, utilization and quality review, and other
matters;
(11) Grant the Director, or designee, the right to conduct quality
assurance audits or accounting audits with full access to patients and
records (including records relating to patients who are not CHAMPUS
beneficiaries) to determine the quality and cost-effectiveness of care
rendered. The audits may be conducted on a scheduled or unscheduled
(unannounced) basis. This right to audit/review includes, but is not
limited to:
(i) Examination of fiscal and all other records of the PHP which
would confirm compliance with the participation agreement and
designation as a TRICARE authorized PHP provider;
(ii) Conducting such audits of PHP records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspections conducted by
federal, state and local government, and private agencies and
organizations;
(iv) Conducting on-site inspections of the facilities of the PHP and
interviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required;
(v) Audits conducted by the United States General Account Office.
(C) Other requirements applicable to PHPs. (1) Even though a PHP may
qualify as a TRICARE authorized provider and may have entered into a
participation agreement with CHAMPUS, payment by CHAMPUS for particular
services provided is contingent upon the PHP also meeting all conditions
set forth in Sec. 199.4.
(2) The PHP may not discriminate against CHAMPUS beneficiaries in
any manner, including admission practices, placement in special or
separate wings or rooms, or provisions of special or limited treatment.
(3) The PHP shall assure that all certifications and information
provided to the Director incident to the process of obtaining and
retaining authorized provider status is accurate and that is has no
material errors or omissions. In the case of any misrepresentations,
whether by inaccurate information being provided or material facts
withheld, authorized provider status will be denied or terminated, and
the PHP will be ineligible for consideration for authorized provider
status for a two year period.
(xiii) Hospice programs. Hospice programs must be Medicare approved
and meet all Medicare conditions of participation (42 CFR part 418) in
relation to CHAMPUS patients in order to receive payment under the
CHAMPUS program. A hospice program may be found to be out of compliance
with a particular Medicare condition of participation and still
participate in the CHAMPUS as long as the hospice is allowed continued
participation in Medicare while the condition of noncompliance is being
corrected. The hospice program can be either a public agency or private
organization (or a subdivision thereof) which:
[[Page 183]]
(A) Is primarily engaged in providing the care and services
described under Sec. 199.4(e)(19) and makes such services available on
a 24-hour basis.
(B) Provides bereavement counseling for the immediate family or
terminally ill individuals.
(C) Provides for such care and services in individuals' homes, on an
outpatient basis, and on a short-term inpatient basis, directly or under
arrangements made by the hospice program, except that the agency or
organization must:
(1) Ensure that substantially all the core services are routinely
provided directly by hospice employees.
(2) Maintain professional management responsibility for all services
which are not directly furnished to the patient, regardless of the
location or facility in which the services are rendered.
(3) Provide assurances that the aggregate number of days of
inpatient care provided in any 12-month period does not exceed 20
percent of the aggregate number of days of hospice care during the same
period.
(4) Have an interdisciplinary group composed of the following
personnel who provide the care and services described under Sec.
199.4(e)(19) and who establish the policies governing the provision of
such care/services:
(i) A physician;
(ii) A registered professional nurse;
(iii) A social worker; and
(iv) A pastoral or other counselor.
(5) Maintain central clinical records on all patients.
(6) Utilize volunteers.
(7) The hospice and all hospice employees must be licensed in
accordance with applicable Federal, State and local laws and
regulations.
(8) The hospice must enter into an agreement with CHAMPUS in order
to be qualified to participate and to be eligible for payment under the
program. In this agreement the hospice and CHAMPUS agree that the
hospice will:
(i) Not charge the beneficiary or any other person for items or
services for which the beneficiary is entitled to have payment made
under the CHAMPUS hospice benefit.
(ii) Be allowed to charge the beneficiary for items or services
requested by the beneficiary in addition to those that are covered under
the CHAMPUS hospice benefit.
(9) Meet such other requirements as the Secretary of Defense may
find necessary in the interest of the health and safety of the
individuals who are provided care and services by such agency or
organization.
(xiv) Substance use disorder rehabilitation facilities. This
paragraph (b)(4)(xiv) establishes the definition of eligibility
standards and requirements for residential substance use disorder
rehabilitation facilities (SUDRF).
(A) Organization and administration--(1) Definition. A SUDRF is a
residential or rehabilitation facility, or distinct part of a facility,
that provides medically monitored, interdisciplinary addiction-focused
treatment to beneficiaries who have psychoactive substance use
disorders. Qualified health care professionals provide 24-hour, seven-
day-per-week, assessment, treatment, and evaluation. A SUDRF is
appropriate for patients whose addiction-related symptoms, or
concomitant physical and emotional/behavioral problems reflect
persistent dysfunction in several major life areas. Residential or
inpatient rehabilitation is differentiated from:
(i) Acute psychoactive substance use treatment and from treatment of
acute biomedical/emotional/behavioral problems; which problems are
either life-threatening and/or severely incapacitating and often occur
within the context of a discrete episode of addiction-related biomedical
or psychiatric dysfunction;
(ii) A partial hospitalization center, which serves patients who
exhibit emotional/behavioral dysfunction but who can function in the
community for defined periods of time with support in one or more of the
major life areas;
(iii) A group home, sober-living environment, halfway house, or
three-quarter way house;
(iv) Therapeutic schools, which are educational programs
supplemented by addiction-focused services;
(v) Facilities that treat patients with primary psychiatric
diagnoses other than psychoactive substance use or dependence; and
[[Page 184]]
(vi) Facilities that care for patients with the primary diagnosis of
mental retardation or developmental disability.
(2) Eligibility. (i) In order to become a TRICARE authorized
provider, every SUDRF must meet minimum basic standards set forth in
paragraphs (b)(4)(xiv)(A) through (C) of this section, as well as such
additional elaborative criteria and standards as the Director determines
are necessary to implement the basic standards.
(ii) To be approved as a TRICARE authorized provider, the SUDRF is
required to be licensed and operate in substantial compliance with state
and federal regulations.
(iii) The SUDRF is currently accredited by an accrediting
organization approved by the Director. Each SUDRF must be accredited to
provide the level of required treatment by an accreditation body
approved by the Director.
(iv) The SUDRF has a written participation agreement with OCHAMPUS.
The SUDRF is not considered a TRICARE authorized provider, and CHAMPUS
benefits are not paid for services provided until the date upon which a
participation agreement is signed by the Director.
(B) Participation agreement requirements. In addition to other
requirements set forth in this paragraph (b)(4)(xiv), in order for the
services of an inpatient rehabilitation center for the treatment of
substance use disorders to be authorized, the center shall have entered
into a Participation Agreement with OCHAMPUS. A single consolidated
participation agreement is acceptable for all units of the TRICARE
authorized facility. The period of a Participation Agreement shall be
specified in the agreement, and will generally be for not more than five
years. The SUDRF shall not be considered to be a CHAMPUS authorized
provider and CHAMPUS payments shall not be made for services provided by
the SUDRF until the date the participation agreement is signed by the
Director. In addition to review of the SUDRF's application and
supporting documentation, an on-site visit by OCHAMPUS representatives
may be part of the authorization process. The Participation Agreement
shall include at least the following requirements:
(1) Render applicable services to eligible CHAMPUS beneficiaries in
need of such services, in accordance with the participation agreement
and CHAMPUS regulation;
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14, or such other method as determined by the
Director;
(3) Accept the CHAMPUS-determined rate as payment in full and
collect from the CHAMPUS beneficiary or the family of the CHAMPUS
beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of CHAMPUS;
(4) Make all reasonable efforts acceptable to the Director to
collect those amounts which represent the beneficiary's liability, as
defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to CHAMPUS;
(6) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS,
certified to by an independent accounting firm or other agency as
authorized by the Director;
(7) Certify that:
(i) It is and will remain in compliance with the provisions of
paragraph (b)(4)(xiv) of the section establishing standards for
substance use disorder rehabilitation facilities; and
(ii) It has conducted a self-assessment of the facility's compliance
with the CHAMPUS Standards for Substance Use Disorder Rehabilitation
Facilities, as issued by the Director and notified the Director of any
matter regarding which the facility is not in compliance with such
standards; and
(iii) It will maintain compliance with the CHAMPUS Standards for
Substance Use Disorder Rehabilitation Facilities, as issued by the
Director, except for any such standards regarding which the facility
notifies the Director that it is not in compliance.
(8) Designate an individual who will act as liaison for CHAMPUS
inquiries.
[[Page 185]]
The SUDRF shall inform OCHAMPUS in writing of the designated individual;
(9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data
certified by an independent accounting firm or other agency as
authorized by the Director;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning accreditation requirements,
preauthorization, concurrent care review, claims processing, beneficiary
liability, double coverage, utilization and quality review, and other
matters;
(11) Grant the Director, or designee, the right to conduct quality
assurance audits or accounting audits with full access to patients and
records (including records relating to patients who are not CHAMPUS
beneficiaries) to determine the quality and cost effectiveness of
carerendered. The audits may be conducted on a scheduled or unscheduled
(unannounced) basis. This right to audit/review included, but is not
limited to:
(i) Examination of fiscal and all other records of the center which
would confirm compliance with the participation agreement and
designation as an authorized TRICARE provider;
(ii) Conducting such audits of center records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspection conducted by
federal, state and local government, and private agencies and
organizations;
(iv) Conducting on-site inspections of the facilities of the SUDRF
and interviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required.
(v) Audits conducted by the United States Government Accountability
Office.
(C) Other requirements applicable to substance use disorder
rehabilitation facilities.
(1) Even though a SUDRF may qualify as a TRICARE authorized provider
and may have entered into a participation agreement with CHAMPUS,
payment by CHAMPUS for particular services provided is contingent upon
the SUDRF also meeting all conditions set forth in Sec. 199.4.
(2) The center shall provide inpatient services to CHAMPUS
beneficiaries in the same manner it provides services to all other
patients. The center may not discriminate against CHAMPUS beneficiaries
in any manner, including admission practices, placement in special or
separate wings or rooms, or provisions of special or limited treatment.
(3) The substance use disorder facility shall assure that all
certifications and information provided to the Director, incident to the
process of obtaining and retaining authorized provider status, is
accurate and that it has no material errors or omissions. In the case of
any misrepresentations, whether by inaccurate information being provided
or material facts withheld, authorized provider status will be denied or
terminated, and the facility will be ineligible for consideration for
authorized provider status for a two year period.
(xv) Home health agencies (HHAs). HHAs must be Medicare approved and
meet all Medicare conditions of participation under sections 1861(o) and
1891 of the Social Security Act (42 U.S.C. 1395x(o) and 1395bbb) and 42
CFR part 484 in relation to TRICARE beneficiaries in order to receive
payment under the TRICARE program. An HHA may be found to be out of
compliance with a particular Medicare condition of participation and
still participate in the TRICARE program as long as the HHA is allowed
continued participation in Medicare while the condition of noncompliance
is being corrected. An HHA is a public or private organization, or a
subdivision of such an agency or organization, that meets the following
requirements:
(A) Engaged in providing skilled nursing services and other
therapeutic services, such as physical therapy, speech-language
pathology services, or occupational therapy, medical services, and home
health aide services.
(1) Makes available part-time or intermittent skilled nursing
services and at least one other therapeutic service on a visiting basis
in place of residence used as a patient's home.
[[Page 186]]
(2) Furnishes at least one of the qualifying services directly
through agency employees, but may furnish the second qualifying service
and additional services under arrangement with another HHA or
organization.
(B) Policies established by a professional group associated with the
agency or organization (including at least one physician and one
registered nurse) to govern the services and provides for supervision of
such services by a physician or a registered nurse.
(C) Maintains clinical records for all patients.
(D) Licensed in accordance with State and local law or is approved
by the State or local licensing agency as meeting the licensing
standards, where applicable.
(E) Enters into an agreement with TRICARE in order to participate
and to be eligible for payment under the program. In this agreement the
HHA and TRICARE agree that the HHA will:
(1) Not charge the beneficiary or any other person for items or
services for which the beneficiary is entitled to have payment under the
TRICARE HHA prospective payment system.
(2) Be allowed to charge the beneficiary for items or services
requested by the beneficiary in addition to those that are covered under
the TRICARE HHA prospective payment system.
(F) Abide by the following consolidated billing requirements:
(1) The HHA must submit all TRICARE claims for all home health
services, excluding durable medical equipment (DME), while the
beneficiary is under the home health plan without regard to whether or
not the item or service was furnished by the HHA, by others under
arrangement with the HHA, or under any other contracting or consulting
arrangement.
(2) Separate payment will be made for DME items and services
provided under the home health benefit which are under the DME fee
schedule. DME is excluded from the consolidated billing requirements.
(3) Home health services included in consolidated billing are:
(i) Part-time or intermittent skilled nursing;
(ii) Part-time or intermittent home health aide services;
(iii) Physical therapy, occupational therapy and speech-language
pathology;
(iv) Medical social services;
(v) Routine and non-routine medical supplies;
(vi) A covered osteoporosis drug (not paid under PPS rate) but
excluding other drugs and biologicals;
(vii) Medical services provided by an intern or resident-in-training
of a hospital, under an approved teaching program of the hospital in the
case of an HHA that is affiliated or under common control of a hospital;
(viii) Services at hospitals, SNFs or rehabilitation centers when
they involve equipment too cumbersome to bring home.
(G) Meet such other requirements as the Secretary of Health and
Human Services and/or Secretary of Defense may find necessary in the
interest of the health and safety of the individuals who are provided
care and services by such agency or organization.
(xvi) Critical Access Hospitals (CAHs). CAHs must meet all
conditions of participation under 42 CFR 485.601 through 485.645 in
relation to TRICARE beneficiaries in order to receive payment under the
TRICARE program. If a CAH provides inpatient psychiatric services or
inpatient rehabilitation services in a distinct part unit, the distinct
part unit must meet the conditions of participation in 42 CFR 485.647,
with the exception of being paid under the inpatient prospective payment
system for psychiatric facilities as specified in 42 CFR 412.1(a)(2) or
the inpatient prospective payment system for rehabilitation hospitals or
rehabilitation units as specified in 42 CFR 412.1(a)(3). Upon
implementation of TRICARE's IRF PPS in Sec. 199.14(a)(10), if a CAH
provides inpatient rehabilitation services in a distinct part unit, the
distinct part unit shall be paid under TRICARE's IRF PPS.
(xvii) Sole community hospitals (SCHs). SCHs must meet all the
criteria for classification as an SCH under 42 CFR 412.92, in order to
be considered an SCH under the TRICARE program.
(xviii) Intensive outpatient programs. This paragraph (b)(4)(xviii)
establishes
[[Page 187]]
standards and requirements for intensive outpatient treatment programs
for psychiatric and substance use disorder.
(A) Organization and administration--(1) Definition. Intensive
outpatient treatment (IOP) programs are defined in Sec. 199.2. IOP
services consist of a comprehensive and complimentary schedule of
recognized treatment approaches that may include day, evening, night,
and weekend services consisting of individual and group counseling or
therapy, and family counseling or therapy as clinically indicated for
children and adolescents, or adults aged 18 and over, and may include
case management to link patients and their families with community based
support systems.
(2) Eligibility. (i) In order to qualify as a TRICARE authorized
provider, every intensive outpatient program must meet the minimum basic
standards set forth in paragraphs (b)(4)(xviii)(A) through (C) of this
section, as well as additional elaborative criteria and standards as the
Director determines are necessary to implement the basic standards. Each
intensive outpatient program must be either a distinct part of an
otherwise-authorized institutional provider or a free-standing
psychiatric or substance use disorder intensive outpatient program.
Approval of a hospital by TRICARE is sufficient for its IOP to be an
authorized TRICARE provider. Such hospital-based intensive outpatient
programs are not required to be separately authorized by TRICARE.
(ii) To qualify as a TRICARE authorized provider, the IOP is
required to be licensed and operate in substantial compliance with state
and federal regulations.
(iii) The IOP is currently accredited by an accrediting organization
approved by the Director. Each IOP authorized to treat substance use
disorder must be accredited to provide the level of required treatment
by an accreditation body approved by the Director.
(iv) The facility has a written participation agreement with
TRICARE. The IOP is not considered a TRICARE authorized provider and
TRICARE benefits are not paid for services provided until the date upon
which a participation agreement is signed by the Director.
(B) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(xii) of this section, in
order for the services of an IOP to be authorized, the IOP shall have
entered into a Participation Agreement with TRICARE. A single
consolidated participation agreement is acceptable for all units of the
TRICARE authorized facility granted that all programs meet the
requirements of this part. The period of a Participation Agreement shall
be specified in the agreement, and will generally be for not more than
five years. In addition to review of a facility's application and
supporting documentation, an on-site inspection by DHA authorized
personnel may be required prior to signing a participation agreement.
The Participation Agreement shall include at least the following
requirements:
(1) Render intensive outpatient program services to eligible TRICARE
beneficiaries in need of such services, in accordance with the
participation agreement and TRICARE regulation.
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14, or such other method as determined by the
Director;
(3) Collect from the TRICARE beneficiary or the family of the
TRICARE beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of TRICARE;
(4) Make all reasonable efforts acceptable to the Director to
collect those amounts, which represent the beneficiary's liability, as
defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to TRICARE;
(6) Submit claims for services provided to TRICARE beneficiaries at
least every 30 days (except to the extent a delay is necessitated by
efforts to first collect from other health insurance). If claims are not
submitted at least every 30 days, the IOP agrees not
[[Page 188]]
to bill the beneficiary or the beneficiary's family for any amounts
disallowed by TRICARE;
(7) Free-standing intensive outpatient programs shall certify that:
(i) It is and will remain in compliance with the provisions of
paragraph (b)(4)(xii) of this section establishing standards for
psychiatric and SUD IOPs;
(ii) It has conducted a self-assessment of the facility's compliance
with the CHAMPUS Standards for Intensive Outpatient Programs, as issued
by the Director, and notified the Director of any matter regarding which
the facility is not in compliance with such standards; and
(iii) It will maintain compliance with the TRICARE standards for
IOPs, as issued by the Director, except for any such standards regarding
which the facility notifies the Director, or a designee that it is not
in compliance.
(8) Designate an individual who will act as liaison for TRICARE
inquiries. The IOP shall inform TRICARE, or a designee in writing of the
designated individual;
(9) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS,
certified by an independent accounting firm or other agency as
authorized by the Director.
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning accreditation requirements,
preauthorization, concurrent care review, claims processing, beneficiary
liability, double coverage, utilization and quality review, and other
matters;
(11) Grant the Director, or designee, the right to conduct quality
assurance audits or accounting audits with full access to patients and
records (including records relating to patients who are not CHAMPUS
beneficiaries) to determine the quality and cost effectiveness of care
rendered. The audits may be conducted on a scheduled or unscheduled
(unannounced) basis. This right to audit/review included, but is not
limited to:
(i) Examination of fiscal and all other records of the center which
would confirm compliance with the participation agreement and
designation as an authorized TRICARE provider;
(ii) Conducting such audits of center records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspection conducted by
federal, state and local government, and private agencies and
organizations;
(iv) Conducting on-site inspections of the facilities of the IOP and
interviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required.
(v) Audits conducted by the United States Government Accountability
Office.
(C) Other requirements applicable to Intensive Outpatient Programs
(IOP). (1) Even though an IOP may qualify as a TRICARE authorized
provider and may have entered into a participation agreement with
CHAMPUS, payment by CHAMPUS for particular services provided is
contingent upon the IOP also meeting all conditions set forth in Sec.
199.4.
(2) The IOP may not discriminate against CHAMPUS beneficiaries in
any manner, including admission practices, placement in special or
separate wings or rooms, or provisions of special or limited treatment.
(3) The IOP shall assure that all certifications and information
provided to the Director incident to the process of obtaining and
retaining authorized provider status is accurate and that is has no
material errors or omissions. In the case of any misrepresentations,
whether by inaccurate information being provided or material facts
withheld, authorized provider status will be denied or terminated, and
the IOP will be ineligible for consideration for authorized provider
status for a two year period.
(xix) Opioid Treatment Programs (OTPs). This paragraph (b)(4)(xix)
establishes standards and requirements for Opioid Treatment Programs.
(A) Organization and administration. (1) Definition. Opioid
Treatment Programs (OTPs) are defined in Sec. 199.2. Opioid Treatment
Programs (OTPs) are
[[Page 189]]
organized, ambulatory, addiction treatment services for patients with an
opioid use disorder. OTPs have the capacity to provide daily direct
administration of medications without the prescribing of medications.
Medication supplies for patients to take outside of OTPs originate from
within OTPs. OTPs offer medication assisted treatment, patient-centered,
recovery-oriented individualized treatment through addiction counseling,
mental health therapy, case management, and health education.
(2) Eligibility. (i) Every free-standing Opioid Treatment Program
must be accredited by an accrediting organization recognized by
Director, under the current standards of an accrediting organization, as
well as meet additional elaborative criteria and standards as the
Director determines are necessary to implement the basic standards. OTPs
adhere to requirements of the Department of Health and Human Services'
42 CFR part 8, the Substance Abuse and Mental Health Services
Administration's Center for Substance Abuse Treatment, and the Drug
Enforcement Agency. OTPs must be either a distinct part of an otherwise
authorized institutional provider or a free-standing program. Approval
of hospitals by TRICARE is sufficient for their OTPs to be authorized
TRICARE providers. Such hospital-based OTPs, if certified under 42 CFR
8, are not required to be separately authorized by TRICARE.
(ii) To qualify as a TRICARE authorized provider, OTPs are required
to be licensed and operate in substantial compliance with state and
federal regulations.
(iii) OTPs have a written participation agreement with OCHAMPUS.
OTPs are not considered a TRICARE authorized provider, and CHAMPUS
benefits are not paid for services provided until the date upon which a
participation agreement is signed by the Director.
(B) Participation agreement requirements. In addition to other
requirements set forth in this paragraph (b)(4)(xix), in order for the
services of OTPs to be authorized, OTPs shall have entered into a
Participation Agreement with TRICARE. A single consolidated
participation agreement is acceptable for all units of a TRICARE
authorized facility. The period of a Participation Agreement shall be
specified in the agreement, and will generally be for not more than five
years. In addition to review of a facility's application and supporting
documentation, an on-site inspection by DHA authorized personnel may be
required prior to signing a participation agreement. The Participation
Agreement shall include at least the following requirements:
(1) Render services from OTPs to eligible TRICARE beneficiaries in
need of such services, in accordance with the participation agreement
and TRICARE regulation.
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14, or such other method as determined by the
Director;
(3) Collect from the TRICARE beneficiary or the family of the
TRICARE beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of TRICARE;
(4) Make all reasonable efforts acceptable to the Director to
collect those amounts, which represent the beneficiary's liability, as
defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to TRICARE;
(6) Submit claims for services provided to TRICARE beneficiaries at
least every 30 days (except to the extent a delay is necessitated by
efforts to first collect from other health insurance). If claims are not
submitted at least every 30 days, OTPs agree not to bill the beneficiary
or the beneficiary's family for any amounts disallowed by TRICARE;
(7) Free-standing opioid treatment programs shall certify that:
(i) It is and will remain in compliance with the provisions of
paragraph (b)(4)(xii) of this section establishing standards for opioid
treatment programs;
(ii) It will maintain compliance with the TRICARE standards for
OTPs, as issued by the Director, except for any
[[Page 190]]
such standards regarding which the facility notifies the Director, or a
designee, that it is not in compliance.
(8) Designate an individual who will act as liaison for TRICARE
inquiries. OTPs shall inform TRICARE, or a designee, in writing of the
designated individual;
(9) Furnish TRICARE, or a designee, with cost data, as requested by
TRICARE, certified by an independent accounting firm or other agency as
authorized by the Director;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning accreditation requirements,
claims processing, beneficiary liability, double coverage, utilization
and quality review, and other matters;
(11) Grant the Director, or designee, the right to conduct quality
assurance audits or accounting audits with full access to patients and
records (including records relating to patients who are not TRICARE
beneficiaries) to determine the quality and cost effectiveness of care
rendered. The audits may be conducted on a scheduled or unscheduled
(unannounced) basis. This right to audit/review includes, but is not
limited to:
(i) Examination of fiscal and all other records of OTPs which would
confirm compliance with the participation agreement and designation as
an authorized TRICARE provider;
(ii) Conducting such audits of OTPs' records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided TRICARE
beneficiaries;
(iii) Examining reports of evaluations and inspections conducted by
federal, state and local government, and private agencies and
organizations.
(C) Other requirements applicable to OTPs. (1) Even though OTPs may
qualify as a TRICARE authorized provider and may have entered into a
participation agreement with CHAMPUS, payment by CHAMPUS for particular
services provided is contingent upon OTPs also meeting all conditions
set forth in Sec. 199.4.
(2) OTPs may not discriminate against CHAMPUS beneficiaries in any
manner, including admission practices or provisions of special or
limited treatment.
(3) OTPs shall assure that all certifications and information
provided to the Director incident to the process of obtaining and
retaining authorized provider status is accurate and that is has no
material errors or omissions. In the case of any misrepresentations,
whether by inaccurate information being provided or material facts
withheld, authorized provider status will be denied or terminated, and
OTPs will be ineligible for consideration for authorized provider status
for a two year period.
(xx) Inpatient Rehabilitation Facility (IRF). IRFs must meet all the
criteria for classification as an IRF under 42 CFR part 412, subpart B,
and meet all applicable requirements established in this part in order
to be considered an authorized IRF under the TRICARE program.
(A) In order for the services of inpatient rehabilitation facilities
to be covered, the facility must comply with the provisions outlined in
paragraph (b)(4)(i) of this section. In addition, in order for services
provided by these facilities to be covered by TRICARE, they must be
primarily for the treatment of the presenting illness.
(B) Custodial or domiciliary care is not coverable under TRICARE,
even if rendered in an otherwise authorized inpatient rehabilitation
facility.
(C) The controlling factor in determining whether a beneficiary's
stay in an inpatient rehabilitation facility is coverable by TRICARE is
the level of professional care, supervision, and skilled nursing care
that the beneficiary requires, in addition to the diagnosis, type of
condition, or degree of functional limitations. The type and level of
medical services required or rendered is controlling for purposes of
extending TRICARE benefits; not the type of provider or condition of the
beneficiary.
(c) Individual professional providers of care--(1) General--(i)
Purpose. This individual professional provider class is established to
accommodate individuals who are recognized by 10 U.S.C. 1079(a)
[[Page 191]]
as authorized to assess or diagnose illness, injury, or bodily
malfunction as a prerequisite for CHAMPUS cost-share of otherwise
allowable related preventive or treatment services or supplies, and to
accommodate such other qualified individuals who the Director, OCHAMPUS,
or designee, may authorize to render otherwise allowable services
essential to the efficient implementation of a plan-of-care established
and managed by a 10 U.S.C. 1079(a) authorized professional.
(ii) Professional corporation affiliation or association membership
permitted. Paragraph (c) of this section applies to those individual
health care professionals who have formed a professional corporation or
association pursuant to applicable state laws. Such a professional
corporation or association may file claims on behalf of a CHAMPUS-
authorized individual professional provider and be the payee for any
payment resulting from such claims when the CHAMPUS-authorized
individual certifies to the Director, OCHAMPUS, or designee, in writing
that the professional corporation or association is acting on the
authorized individual's behalf.
(iii) Scope of practice limitation. For CHAMPUS cost-sharing to be
authorized, otherwise allowable services provided by a CHAMPUS-
authorized individual professional provider shall be within the scope of
the individual's license as regulated by the applicable state practice
act of the state where the individual rendered the service to the
CHAMPUS beneficiary or shall be within the scope of the test which was
the basis for the individual's qualifying certification.
(iv) Employee status exclusion. An individual employed directly, or
indirectly by contract, by an individual or entity to render
professional services otherwise allowable by this part is excluded from
provider status as established by this paragraph (c) for the duration of
each employment.
(v) Training status exclusion. Individual health care professionals
who are allowed to render health care services only under direct and
ongoing supervision as training to be credited towards earning a
clinical academic degree or other clinical credential required for the
individual to practice independently are excluded from provider status
as established by this paragraph (c) for the duration of such training.
(2) Conditions of authorization--(i) Professional license
requirement. The individual must be currently licensed to render
professional health care services in each state in which the individual
renders services to CHAMPUS beneficiaries. Such license is required when
a specific state provides, but does not require, license for a specific
category of individual professional provider. The license must be at
full clinical practice level to meet this requirement. A temporary
license at the full clinical practice level is acceptable.
(ii) Professional certification requirement. When a state does not
license a specific category of individual professional, certification by
a Qualified Accreditation Organization, as defined in Sec. 199.2, is
required. Certification must be at full clinical practice level. A
temporary certification at the full clinical practice level is
acceptable.
(iii) Education, training and experience requirement. The Director,
OCHAMPUS, or designee, may establish for each category or type of
provider allowed by this paragraph (c) specific education, training, and
experience requirements as necessary to promote the delivery of services
by fully qualified individuals.
(iv) Physician referral and supervision. When physician referral and
supervision is a prerequisite for CHAMPUS cost-sharing of the services
of a provider authorized under this paragraph (c), such referral and
supervision means that the physicians must actually see the patient to
evaluate and diagnose the condition to be treated prior to referring the
beneficiary to another provider and that the referring physician
provides ongoing oversight of the course of referral related treatment
throughout the period during which the beneficiary is being treated in
response to the referral. Written contemporaneous documentation of the
referring physician's basis for referral and ongoing communication
between the referring and treating provider regarding the oversight of
the treatment rendered as a result of the referral must meet all
requirements for medical
[[Page 192]]
records established by this part. Referring physician supervision does
not require physical location on the premises of the treating provider
or at the site of treatment.
(v) Subject to section 1079(a) of title 10, U.S.C., chapter 55, a
physician or other health care practitioner who is eligible to receive
reimbursement for services provided under Medicare (as defined in
section 1086(d)(3)(C) of title 10 U.S.C., chapter 55) shall be
considered approved to provide medical care authorized under section
1079 and section 1086 of title 10, U.S.C., chapter 55 unless the
administering Secretaries have information indicating Medicare, TRICARE,
or other Federal health care program integrity violations by the
physician or other health care practitioner. Approval is limited to
those classes of provider currently considered TRICARE authorized
providers as outlined in 32 CFR 199.6. Services and supplies rendered by
those providers who are not currently considered authorized providers
shall be denied.
(3) Types of providers. Subject to the standards of participation
provisions of this part, the following individual professional providers
of medical care are authorized to provide services to CHAMPUS
beneficiaries:
(i) Physicians. (A) Doctors of Medicine (M.D.).
(B) Doctors of Osteopathy (D.O.).
(ii) Dentists. Except for covered oral surgery as specified in Sec.
199.4(e) of this part, all otherwise covered services rendered by
dentists require preauthorization.
(A) Doctors of Dental Medicine (D.M.D.).
(B) Doctors of Dental Surgery (D.D.S.).
(iii) Other allied health professionals. The services of the
following individual professional providers of care are coverable on a
fee-for-service basis provided such services are otherwise authorized in
this or other sections of this part.
(A) Clinical psychologist. For purposes of CHAMPUS, a clinical
psychologist is an individual who is licensed or certified by the state
for the independent practice of psychology and:
(1) Possesses a doctoral degree in psychology from a regionally
accredited university; and
(2) Has had 2 years of supervised clinical experience in
psychological health services of which at least 1 year is post-doctoral
and 1 year (may be the post-doctoral year) is in an organized
psychological health service training program; or
(3) As an alternative to paragraphs (c)(3)(iii)(A)(1) and (2) of
this section is listed in the National Register of Health Service
Providers in Psychology.
(B) Doctors of Optometry.
(C) Doctors of Podiatry or Surgical Chiropody.
(D) Certified nurse midwives.
(1) A certified nurse midwife may provide covered care independent
of physician referral and supervision, provided the nurse midwife is:
(i) Licensed, when required, by the local licensing agency for the
jurisdiction in which the care is provided; and
(ii) Certified by the American College of Nurse Midwives. To receive
certification, a candidate must be a registered nurse who has completed
successfully an educational program approved by the American College of
Nurse Midwives, and passed the American College of Nurse Midwives
National Certification Examination.
(2) The services of a registered nurse who is not a certified nurse
midwife may be authorized only when the patient has been referred for
care by a licensed physician and a licensed physician provides
continuing supervision of the course of care. A lay midwife who is
neither a certified nurse midwife nor a registered nurse is not a
CHAMPUS-authorized provider, regardless of whether the services rendered
may otherwise be covered.
(E) Certified nurse practitioner. Within the scope of applicable
licensure or certification requirements, a certified nurse practitioner
may provide covered care independent of physician referral and
supervision, provided the nurse practitioner is:
(1) A licensed, registered nurse; and
(2) Specifically licensed or certified as a nurse practitioner by
the state in which the care was provided, if the
[[Page 193]]
state offers such specific licensure or certification; or
(3) Certified as a nurse practitioner (certified nurse) by a
professional organization offering certification in the specialty of
practice, if the state does not offer specific licensure or
certification for nurse practitioners.
(F) Certified Clinical Social Worker. A clinical social worker may
provide covered services independent of physician referral and
supervision, provided the clinical social worker:
(1) Is licensed or certified as a clinical social worker by the
jurisdiction where practicing; or, if the jurisdiction does not provide
for licensure or certification of clinical social workers, is certified
by a national professional organization offering certification of
clinical social workers; and
(2) Has at least a master's degree in social work from a graduate
school of social work accredited by the Council on Social Work
Education; and
(3) Has had a minimum of 2 years or 3,000 hours of post-master's
degree supervised clinical social work practice under the supervision of
a master's level social worker in an appropriate clinical setting, as
determined by the Director, OCHAMPUS, or a designee.
Note: Patients' organic medical problems must receive appropriate
concurrent management by a physician.
(G) Certified psychiatric nurse specialist. A certified psychiatric
nurse specialist may provide covered care independent of physician
referral and supervision. For purposes of CHAMPUS, a certified
psychiatric nurse specialist is an individual who:
(1) Is a licensed, registered nurse; and
(2) Has at least a master's degree in nursing from a regionally
accredited institution with a specialization in psychiatric and mental
health nursing; and
(3) Has had at least 2 years of post-master's degree practice in the
field of psychiatric and mental health nursing, including an average of
8 hours of direct patient contact per week; or
(4) Is listed in a CHAMPUS-recognized, professionally sanctioned
listing of clinical specialists in psychiatric and mental health
nursing.
(H) Certified physician assistant. A physician assistant may provide
care under general supervision of a physician (see Sec.
199.14(j)(1)(ix) of this part for limitations on reimbursement). For
purposes of CHAMPUS, a physician assistant must meet the applicable
state requirements governing the qualifications of physician assistants
and at least one of the following conditions:
(1) Is currently certified by the National Commission on
Certification of Physician Assistants to assist primary care physicians,
or
(2) Has satisfactorily completed a program for preparing physician
assistants that:
(i) Was at least 1 academic year in length;
(ii) Consisted of supervised clinical practice and at least 4 months
(in the aggregate) of classroom instruction directed toward preparing
students to deliver health care; and
(iii) Was accredited by the American Medical Association's Committee
on Allied Health Education and Accreditation; or
(3) Has satisfactorily completed a formal educational program for
preparing program physician assistants that does not meet the
requirement of paragraph (c)(3)(iii)(H)(2) of this section and had been
assisting primary care physicians for a minimum of 12 months during the
18-month period immediately preceding January 1, 1987.
(I) Anesthesiologist Assistant. An anesthesiologist assistant may
provide covered anesthesia services, if the anesthesiologist assistant:
(1) Works under the direct supervision of an anesthesiologist who
bills for the services and for each patient;
(i) The anesthesiologist performs a pre-anesthetic examination and
evaluation;
(ii) The anesthesiologist prescribes the anesthesia plan;
(iii) The anesthesiologist personally participates in the most
demanding aspects of the anesthesia plan including, if applicable,
induction and emergence;
(iv) The anesthesiologist ensures that any procedures in the
anesthesia plan that he or she does not perform are performed by a
qualified anesthesiologist assistant;
(v) The anesthesiologist monitors the course of anesthesia
administration at frequent intervals;
[[Page 194]]
(vi) The anesthesiologist remains physically present and available
for immediate personal diagnosis and treatment of emergencies;
(vii) The anesthesiologist provides indicated post-anesthesia care;
and
(viii) The anesthesiologist performs no other services while he or
she supervises no more than four anesthesiologist assistants
concurrently or a lesser number if so limited by the state in which the
procedure is performed.
(2) Is in compliance with all applicable requirements of state law,
including any licensure requirements the state imposes on nonphysician
anesthetists; and
(3) Is a graduate of a Master's level anesthesiologist assistant
educational program that is established under the auspices of an
accredited medical school and that:
(i) Is accredited by the Committee on Allied Health Education and
Accreditation, or its successor organization; and
(ii) Includes approximately two years of specialized basic science
and clinical education in anesthesia at a level that builds on a
premedical undergraduate science background.
(4) The Director, TMA, or a designee, shall issue TRICARE policies,
instructions, procedures, guidelines, standards, and criteria as may be
necessary to implement the intent of this section.
(J) Certified Registered Nurse Anesthetist (CRNA). A certified
registered nurse anesthetist may provide covered care independent of
physician referral and supervision as specified by state licensure. For
purposes of CHAMPUS, a certified registered nurse anesthetist is an
individual who:
(1) Is a licensed, registered nurse; and
(2) Is certified by the Council on Certification of Nurse
Anesthetists, or its successor organization.
(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).
(L) Nutritionist. The nutritionist must be licensed by the State in
which the care is provided and must be under the supervision of a
physician who is overseeing the episode of treatment or the covered
program of services.
(M) Registered dietician. The dietician must be licensed by the
State in which the care is provided and must be under the supervision of
a physician who is overseeing the episode of treatment or the covered
program of services.
(N) TRICARE certified mental health counselor. For the purposes of
CHAMPUS, a TRICARE certified mental health counselor (TCMHC) must be
licensed for independent practice in mental health counseling by the
jurisdiction where practicing. In jurisdictions with two or more
licenses allowing for differing scopes of independent practice, the
licensed mental health counselor may only practice within the scope of
the license he or she possesses. In addition, a TCMHC must meet the
requirements of either paragraph (c)(3)(iii)(N)(1) or the requirements
of paragraph (c)(3)(iii)(N)(2) of this section.
(1) The requirements of this paragraph are that the TCMHC:
(i) Must have passed the National Clinical Mental Health Counselor
Examination (NCMHCE) or its successor as determined by the Director,
TMA; and
[[Page 195]]
(ii) Must possess a master's or higher-level degree from a mental
health counseling program of education and training accredited by the
Council for Accreditation of Counseling and Related Educational Programs
(CACREP); and
(iii) Must have a minimum of two (2) years of post-master's degree
supervised mental health counseling practice which includes a minimum of
3,000 hours of supervised clinical practice and 100 hours of face-to-
face supervision. Supervision must be provided by mental health
counselors at the highest level of state licensure, psychiatrists,
clinical psychologists, certified clinical social workers, or certified
psychiatric nurse specialists who are licensed for independent practice
in the jurisdiction where practicing and who are practicing within the
scope of their licenses. Supervised clinical practice must be received
in a manner that is consistent with the guidelines regarding knowledge,
skills, and practice standards for supervision of the American Mental
Health Counselors Association; and
(iv) Is licensed or certified for independent practice in mental
health counseling by the jurisdiction where practicing (see paragraph
(c)(2)(ii) of this section for more specific information).
(2) The requirements of this paragraph are that the TCMHC, prior to
January 1, 2017:
(i) Possess a master's or higher-level degree from a mental health
counseling program of education and training accredited by CACREP and
must have passed the National Counselor Examination (NCE); or
(ii) Possess a master's or higher-level degree from a mental health
counseling program of education and training from either a CACREP or
regionally accredited institution and have passed the NCMHCE; and
(iii) Must have a minimum of two (2) years of post-master's degree
supervised mental health counseling practice which includes a minimum of
3,000 hours of supervised clinical practice and 100 hours of face-to-
face supervision. Supervision must be provided by mental health
counselors at the highest level of state licensure, psychiatrists,
clinical psychologists, certified clinical social workers, or certified
psychiatric nurse specialists who are licensed for independent practice
in the jurisdiction where practicing and who are practicing within the
scope of their licenses. Supervised clinical practice must be received
in a manner that is consistent with the guidelines regarding knowledge,
skills, and practice standards for supervision of the American Mental
Health Counselors Association; and
(iv) Is licensed or certified for independent practice in mental
health counseling by the jurisdiction where practicing (see paragraph
(c)(2)(ii) of this section for more specific information).
(3) The Director, TRICARE Management Activity may amend or modify
existing or specify additional certification requirements as needed to
accommodate future practice and licensing standards and to ensure that
all TCMHCs continue to meet educational, licensing, and clinical
training requirements considered appropriate.
(iv) Extramedical individual providers. Extramedical individual
providers are those who do counseling or nonmedical therapy and whose
training and therapeutic concepts are outside the medical field. The
services of extramedical individual professionals are coverable
following the CHAMPUS determined allowable charge methodology provided
such services are otherwise authorized in this or other sections of the
regulation.
(A) Certified marriage and family therapists. For the purposes of
CHAMPUS, a certified marriage and family therapist is an individual who
meets the following requirements:
(1) Recognized graduate professional education with the minimum of
an earned master's degree from a regionally accredited educational
institution in an appropriate behavioral science field, mental health
discipline; and
(2) The following experience:
(i) Either 200 hours of approved supervision in the practice of
marriage and family counseling, ordinarily to be completed in a 2- to 3-
year period, of which at least 100 hours must be in individual
supervision. This supervision will occur preferably with more than
[[Page 196]]
one supervisor and should include a continuous process of supervision
with at least three cases; and
(ii) 1,000 hours of clinical experience in the practice of marriage
and family counseling under approved supervision, involving at least 50
different cases; or
(iii) 150 hours of approved supervision in the practice of
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of
which at least 50 hours must be individual supervision; plus at least 50
hours of approved individual supervision in the practice of marriage and
family counseling, ordinarily to be completed within a period of not
less than 1 nor more than 2 years; and
(iv) 750 hours of clinical experience in the practice of
psychotherapy under approved supervision involving at least 30 cases;
plus at least 250 hours of clinical practice in marriage and family
counseling under approved supervision, involving at least 20 cases; and
(3) Is licensed or certified to practice as a marriage and family
therapist by the jurisdiction where practicing (see paragraph
(c)(3)(iv)(D) of this section for more specific information regarding
licensure); and
(4) Agrees that a patients' organic medical problems must receive
appropriate concurrent management by a physician.
(5) Agrees to accept the CHAMPUS determined allowable charge as
payment in full, except for applicable deductibles and cost-shares, and
hold CHAMPUS beneficiaries harmless for noncovered care (i.e., may not
bill a beneficiary for noncovered care, and may not balance bill a
beneficiary for amounts above the allowable charge). The certified
marriage and family therapist must enter into a participation agreement
with the Office of CHAMPUS within which the certified marriage and
family therapist agrees to all provisions specified above.
(6) As of the effective date of termination, the certified marriage
and family therapist will no longer be recognized as an authorized
provider under CHAMPUS. Subsequent to termination, the certified
marriage and family therapist may only be reinstated as an authorized
CHAMPUS extramedical provider by entering into a new participation
agreement as a certified marriage and family therapist.
(B) Pastoral counselors. For the purposes of CHAMPUS, a pastoral
counselor is an individual who meets the following requirements:
(1) Recognized graduate professional education with the minimum of
an earned master's degree from a regionally accredited educational
institution in an appropriate behavioral science field, mental health
discipline; and
(2) The following experience:
(i) Either 200 hours of approved supervision in the practice of
pastoral counseling, ordinarily to be completed in a 2- to 3-year
period, of which at least 100 hours must be in individual supervision.
This supervision will occur preferably with more than one supervisor and
should include a continuous process of supervision with at least three
cases; and
(ii) 1,000 hours of clinical experience in the practice of pastoral
counseling under approved supervision, involving at least 50 different
cases; or
(iii) 150 hours of approved supervision in the practice of
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of
which at least 50 hours must be individual supervision; plus at least 50
hours of approved individual supervision in the practice of pastoral
counseling, ordinarily to be completed within a period of not less than
1 nor more than 2 years; and
(iv) 750 hours of clinical experience in the practice of
psychotherapy under approved supervision involving at least 30 cases;
plus at least 250 hours of clinical practice in pastoral counseling
under approved supervision, involving at least 20 cases; and
(3) Is licensed or certified to practice as a pastoral counselor by
the jurisdiction where practicing (see paragraph (c)(3)(iv)(D) of this
section for more specific information regarding licensure); and
(4) The services of a pastoral counselor meeting the above
requirements are coverable following the CHAMPUS determined allowable
charge methodology, under the following specified conditions:
(i) The CHAMPUS beneficiary must be referred for therapy by a
physician; and
[[Page 197]]
(ii) A physician is providing ongoing oversight and supervision of
the therapy being provided; and
(iii) The pastoral counselor must certify on each claim for
reimbursement that a written communication has been made or will be made
to the referring physician of the results of the treatment. Such
communication will be made at the end of the treatment, or more
frequently, as required by the referring physician (refer to Sec.
199.7).
(5) Because of the similarity of the requirements for licensure,
certification, experience, and education, a pastoral counselor may elect
to be authorized under CHAMPUS as a certified marriage and family
therapist, and as such, be subject to all previously defined criteria
for the certified marriage and family therapist category, to include
acceptance of the CHAMPUS determined allowable charge as payment in
full, except for applicable deductibles and cost-shares (i.e., balance
billing of a beneficiary above the allowable charge is prohibited; may
not bill beneficiary for noncovered care). The pastoral counselor must
also agree to enter into the same participation agreement as a certified
marriage and family therapist with the Office of CHAMPUS within which
the pastoral counselor agrees to all provisions including licensure,
national association membership and conditions upon termination,
outlined above for certified marriage and family therapist.
Note: No dual status will be recognized by the Office of CHAMPUS.
Pastoral counselors must elect to become one of the categories of
extramedical CHAMPUS provides specified above. Once authorized as either
a pastoral counselor, or a certified marriage and family therapist,
claims review and reimbursement will be in accordance with the criteria
established for the elected provider category.
(C) Supervised mental health counselor. For the purposes of TRICARE,
a supervised mental health counselor is an individual who does not meet
the requirements of a TRICARE certified mental health counselor in
paragraph (c)(3)(iii)(N) of this section, but meets all of the following
requirements and conditions of practice:
(1) Minimum of a master's degree in mental health counseling or
allied mental health field from a regionally accredited institution; and
(2) Two years of post-masters experience which includes 3,000 hours
of clinical work and 100 hours of face-to-face supervision; and
(3) Is licensed or certified to practice as a mental health
counselor by the jurisdiction where practicing (see paragraph
(c)(3)(iv)(D) of this section for more specific information); and
(4) May only be reimbursed when:
(i) The TRICARE beneficiary is referred for therapy by a physician;
and
(ii) A physician is providing ongoing oversight and supervision of
the therapy being provided; and
(iii) The mental health counselor certifies on each claim for
reimbursement that a written communication has been made or will be made
to the referring physician of the results of the treatment. Such
communication will be made at the end of the treatment, or more
frequently, as required by the referring physician (refer to Sec.
199.7).
(D) The following additional information applies to each of the
above categories of extramedical individual providers:
(1) These providers must also be licensed or certified to practice
as a certified marriage and family therapist, pastoral counselor or
mental health counselor by the jurisdiction where practicing. In
jurisdictions that do not provide for licensure or certification, the
provider must be certified by or eligible for full clinical membership
in the appropriate national professional association that sets standards
for the specific profession.
(2) Grace period for therapists or counselors in states where
licensure/certification is optional. CHAMPUS is providing a grace period
for those therapists or counselors who did not obtain optional
licensure/certification in their jurisdiction, not realizing it was a
CHAMPUS requirement for authorization. The exemption by state law for
pastoral counselors may have misled this group into thinking licensure
was not required. The same situation may have occurred with the other
therapist or counselor categories where licensure was either not
mandated by the state or was provided under a more general category such
as ``professional
[[Page 198]]
counselors.'' This grace period pertains only to the licensure/
certification requirement, applies only to therapists or counselors who
are already approved as of October 29, 1990, and only in those areas
where the licensure/certification is optional. Any therapist or
counselor who is not licensed/certified in the state in which he/she is
practicing by August 1, 1991, will be terminated under the provisions of
Sec. 199.9. This grace period does not change any of the other existing
requirements which remain in effect. During this grace period,
membership or proof of eligibility for full clinical membership in a
recognized professional association is required for those therapists or
counselors who are not licensed or certified by the state. The following
organizations are recognized for therapists or counselors at the level
indicated: Full clinical member of the American Association of Marriage
and Family Therapy; membership at the fellow or diplomate level of the
American Association of Pastoral Counselors; and membership in the
National Academy of Certified Clinical Mental Health Counselors.
Acceptable proof of eligibility for membership is a letter from the
appropriate certifying organization. This opportunity for delayed
certification/licensure is limited to the counselor or therapist
category only as the language in all of the other provider categories
has been consistent and unmodified from the time each of the other
provider categories were added. The grace period does not apply in those
states where licensure is mandatory.
(E) Christian Science practitioners and Christian Science nurses.
CHAMPUS cost-shares the services of Christian Science practitioners and
nurses. In order to bill as such, practitioners or nurses must be listed
or be eligible for listing in the Christian Science Journal \1\ at the
time the service is provided.
---------------------------------------------------------------------------
\1\ Copies of this journal can be obtained through the Christian
Science Publishing Company, 1 Norway Street, Boston, MA 02115-3122 or
the Christian Science Publishing Society, P.O. Box 11369, Des Moines, IA
50340.
---------------------------------------------------------------------------
(d) Other providers. Certain medical supplies and services of an
ancillary or supplemental nature are coverable by CHAMPUS, subject to
certain controls. This category of provider includes the following:
(1) Independent laboratory. Laboratory services of independent
laboratories may be cost-shared if the laboratory is approved for
participation under Medicare and certified by the Medicare Bureau,
Health Care Financing Administration.
(2) Suppliers of portable x-ray services. Such suppliers must meet
the conditions of coverage of the Medicare program, set forth in the
Medicare regulations, or the Medicaid program in that state in which the
covered service is provided.
(3) Pharmacies. Pharmacies must meet the applicable requirements of
state law in the state in which the pharmacy is located. In addition to
being subject to the policies and procedures for authorized providers
established by this section, additional policies and procedures may be
established for authorized pharmacies under Sec. 199.21 of this part
implementing the Pharmacy Benefits Program.
(4) Ambulance companies. Such companies must meet the requirements
of state and local laws in the jurisdiction in which the ambulance firm
is licensed.
(5) Medical equipment firms, medical supply firms, and Durable
Medical Equipment, Prosthetic, Orthotic, Supplies providers/suppliers.
Any firm, supplier, or provider that is an authorized provider under
Medicare or is otherwise designated an authorized provider by the
Director, TRICARE Management Activity.
(6) Mammography suppliers. Mammography services may be cost-shared
only if the supplier is certified by Medicare for participation as a
mammography supplier, or is certified by the American College of
Radiology as having met its mammography supplier standards.
(e) Extended Care Health Option Providers--(1) General. (i) Services
and items cost-shared through Sec. 199.5 must be rendered by a CHAMPUS-
authorized provider.
(ii) A Program for Persons with Disabilities (PFPWD) provider with
[[Page 199]]
TRICARE-authorized status on the effective date for the Extended Care
Health Option (ECHO) Program shall be deemed to be a TRICARE-authorized
provider until the expiration of all outstanding PFPWD benefit
authorizations for services or items being rendered by the provider.
(2) ECHO provider categories--(i) ECHO inpatient care provider. A
provider of residential institutional care, which is otherwise an ECHO
benefit, shall be:
(A) A not-for-profit entity or a public facility; and
(B) Located within a state; and
(C) Be certified as eligible for Medicaid payment in accordance with
a state plan for medical assistance under Title XIX of the Social
Security Act (Medicaid) as a Medicaid Nursing Facility, or Intermediate
Care Facility for the Mentally Retarded, or be a TRICARE-authorized
institutional provider as defined in paragraph (b) of this section, or
be approved by a state educational agency as a training institution.
(ii) ECHO outpatient care provider. A provider of ECHO outpatient,
ambulatory, or in-home services shall be:
(A) A TRICARE-authorized provider of services as defined in this
section; or
(B) An individual, corporation, foundation, or public entity that
predominantly renders services of a type uniquely allowable as an ECHO
benefit and not otherwise allowable as a benefit of Sec. 199.4, that
meets all applicable licensing or other regulatory requirements of the
state, county, municipality, or other political jurisdiction in which
the ECHO service is rendered, or in the absence of such licensing or
regulatory requirements, as determined by the Director, TRICARE
Management Activity or designee.
(iii) ECHO vendor. A provider of an allowable ECHO item, such as
supplies or equipment, shall be deemed to be a TRICARE-authorized vendor
for the provision of the specific item, supply or equipment when the
vendor supplies such information as the Director, TRICARE Management
Activity or designee determines necessary to adjudicate a specific
claim.
(3) ECHO provider exclusion or suspension. A provider of ECHO
services or items may be excluded or suspended for a pattern of
discrimination on the basis of disability. Such exclusion or suspension
shall be accomplished according to the provisions of Sec. 199.9.
(f) Corporate services providers--(1) General. (i) This corporate
services provider class is established to accommodate individuals who
would meet the criteria for status as a CHAMPUS authorized individual
professional provider as established by paragraph (c) of this section
but for the fact that they are employed directly or contractually by a
corporation or foundation that provides principally professional
services which are within the scope of the CHAMPUS benefit.
(ii) Payment for otherwise allowable services may be made to a
CHAMPUS-authorized corporate services provider subject to the applicable
requirements, exclusions and limitations of this part.
(iii) The Director, OCHAMPUS, or designee, may create discrete types
within any allowable category of provider established by this paragraph
(f) to improve the efficiency of CHAMPUS management.
(iv) The Director, OCHAMPUS, or designee, may require, as a
condition of authorization, that a specific category or type of provider
established by this paragraph (f):
(A) Maintain certain accreditation in addition to or in lieu of the
requirement of paragraph (f)(2)(v) of this section;
(B) Cooperate fully with a designated utilization and clinical
quality management organization which has a contract with the Department
of Defense for the geographic area in which the provider does business;
(C) Render services for which direct or indirect payment is expected
to be made by CHAMPUS only after obtaining CHAMPUS written
authorization; and
(D) Maintain Medicare approval for payment when the Director,
OCHAMPUS, or designee, determines that a category, or type, of provider
established by this paragraph (f) is substantially comparable to a
provider or supplier for which Medicare has regulatory conditions of
participation or conditions of coverage.
(v) Otherwise allowable services may be rendered at the authorized
corporate
[[Page 200]]
services provider's place of business, or in the beneficiary's home
under such circumstances as the Director, OCHAMPUS, or designee,
determines to be necessary for the efficient delivery of such in-home
services.
(vi) The Director, OCHAMPUS, or designee, may limit the term of a
participation agreement for any category or type of provider established
by this paragraph (f).
(vii) Corporate services providers shall be assigned to only one of
the following allowable categories based upon the predominate type of
procedure rendered by the organization;
(A) Medical treatment procedures;
(B) Surgical treatment procedures;
(C) Maternity management procedures;
(D) Rehabilitation and/or habilitation procedures; or
(E) Diagnostic technical procedures.
(viii) The Director, OCHAMPUS, or designee, shall determine the
appropriate procedural category of a qualified organization and may
change the category based upon the provider's CHAMPUS claim
characteristics. The category determination of the Director, OCHAMPUS,
designee, is conclusive and may not be appealed.
(2) Conditions of authorization. An applicant must meet the
following conditions to be eligible for authorization as a CHAMPUS
corporate services provider:
(i) Be a corporation or a foundation, but not a professional
corporation or professional association; and
(ii) Be institution-affiliated or freestanding as defined in Sec.
199.2; and
(iii) Provide:
(A) Services and related supplies of a type rendered by CHAMPUS
individual professional providers or diagnostic technical services and
related supplies of a type which requires direct patient contact and a
technologist who is licensed by the state in which the procedure is
rendered or who is certified by a Qualified Accreditation Organization
as defined in Sec. 199.2; and
(B) A level of care which does not necessitate that the beneficiary
be provided with on-site sleeping accommodations and food in conjunction
with the delivery of services; and
(iv) Complies with all applicable organizational and individual
licensing or certification requirements that are extant in the state,
county, municipality, or other political jurisdiction in which the
provider renders services; and
(v) Be approved for Medicare payment when determined to be
substantially comparable under the provisions of paragraph (f)(1)(iv)(D)
of this section or, when Medicare approved status is not required, be
accredited by a qualified accreditation organization, as defined in
Sec. 199.2; and
(vi) Has entered into a participation agreement approved by the
Director, OCHAMPUS, or designee, which at least complies with the
minimum participation agreement requirements of this section.
(3) Transfer of participation agreement. In order to provide
continuity of care for beneficiaries when there is a change of provider
ownership, the provider agreement is automatically assigned to the new
owner, subject to all the terms and conditions under which the original
agreement was made.
(i) The merger of the provider corporation or foundation into
another corporation or foundation, or the consolidation of two or more
corporations or foundations resulting in the creation of a new
corporation or foundation, constitutes a change of ownership.
(ii) Transfer of corporate stock or the merger of another
corporation or foundation into the provider corporation or foundation
does not constitute change of ownership.
(iii) The surviving corporation or foundation shall notify the
Director, OCHAMPUS, or designee, in writing of the change of ownership
promptly after the effective date of the transfer or change in
ownership.
(4) Pricing and payment methodology: The pricing and payment of
procedures rendered by a provider authorized under this paragraph (f)
shall be limited to those methods for pricing and payment allowed by
this part which the Director, OCHAMPUS, or designee, determines
contribute to the efficient management of CHAMPUS.
[[Page 201]]
(5) Termination of participation agreement. A provider may terminate
a participation agreement upon 45 days written notice to the Director,
OCHAMPUS, or designee, and to the public.
[51 FR 24008, July 1, 1986]
Editorial Note: For Federal Register citations affecting Sec.
199.6, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 199.7 Claims submission, review, and payment.
(a) General. The Director, OCHAMPUS, or a designee, is responsible
for ensuring that benefits under CHAMPUS are paid only to the extent
described in this part. Before benefits can be paid, an appropriate
claim must be submitted that includes sufficient information as to
beneficiary identification, the medical services and supplies provided,
and double coverage information, to permit proper, accurate, and timely
adjudication of the claim by the CHAMPUS contractor or OCHAMPUS.
Providers must be able to document that the care or service shown on the
claim was rendered. This section sets forth minimum medical record
requirements for verification of services. Subject to such definitions,
conditions, limitations, exclusions, and requirements as may be set
forth in this part, the following are the CHAMPUS claim filing
requirements:
(1) CHAMPUS identification card required. A patient shall present
his or her applicable CHAMPUS identification card (that is, Uniformed
Services identification card) to the authorized provider of care that
identifies the patient as an eligible CHAMPUS beneficiary (refer to
Sec. 199.3 of this part).
(2) Claim required. No benefit may be extended under the Basic
Program or Extended Care Health Option (ECHO) without submission of an
appropriate, complete and properly executed claim form.
(3) Responsibility for perfecting claim. It is the responsibility of
the CHAMPUS beneficiary or sponsor or the authorized provider acting on
behalf of the CHAMPUS beneficiary to perfect a claim for submission to
the appropriate CHAMPUS fiscal intermediary. Neither a CHAMPUS fiscal
intermediary nor OCHAMPUS is authorized to prepare a claim on behalf of
a CHAMPUS beneficiary.
(4) Obtaining appropriate claim form. CHAMPUS provides specific
CHAMPUS forms appropriate for making a claim for benefits for various
types of medical services and supplies (such as hospital, physician, or
prescription drugs). Claim forms may be obtained from the appropriate
CHAMPUS fiscal intermediary who processes claims for the beneficiary's
state of residence, from the Director, OCHAMPUS, or a designee, or from
CHAMPUS health benefits advisors (HBAs) located at all Uniformed
Services medical facilities.
(5) Prepayment not required. A CHAMPUS beneficiary or sponsor is not
required to pay for the medical services or supplies before submitting a
claim for benefits.
(6) Deductible certificate. If the calendar year outpatient
deductible, as defined in Sec. 199.4(f)(2) has been met by a
beneficiary or a family through the submission of a claim or claims to a
CHAMPUS fiscal intermediary in a geographic location different from the
location where a current claim is being submitted, the beneficiary or
sponsor must obtain a deductible certificate from the CHAMPUS fiscal
intermediary where the applicable individual or family calendar year
deductible was met. Such deductible certificate must be attached to the
current claim being submitted for benefits. Failure to obtain a
deductible certificate under such circumstances will result in a second
individual or family calendar year deductible being applied. However,
this second deductible may be reimbursed once appropriate documentation,
as described in this paragraph is supplied to the CHAMPUS fiscal
intermediary applying the second deductible (refer to Sec. 199.4
(f)(2)(i)(F)).
(7) Nonavailability Statement (DD Form 1251). In some geographic
locations or under certain circumstances, it is necessary for a CHAMPUS
beneficiary to determine whether the required medical care can be
provided through a Uniformed Services facility. If the required medical
care cannot be provided by the Uniformed Services facility, a
Nonavailability Statement will be
[[Page 202]]
issued. When required (except for emergencies), this Nonavailability
Statement must be issued before medical care is obtained from civilian
sources. Failure to secure such a statement will waive the beneficiary's
rights to benefits under CHAMPUS, subject to appeal to the appropriate
hospital commander (or higher medical authority).
(i) Rules applicable to issuance of Nonavailability Statement.
Appropriate policy guidance may be issued as necessary to prescribe the
conditions for issuance and use of a Nonavailability Statement.
(ii) Beneficiary responsibility. The beneficiary shall ascertain
whether or not he or she resides in a geographic area that requires
obtaining a Nonavailability Statement. Information concerning current
rules may be obtained from the CHAMPUS fiscal intermediary concerned, a
CHAMPUS HBA or the Director, OCHAMPUS, or a designee.
(iii) Rules in effect at time civilian care is provided apply. The
applicable rules regarding Nonavailability Statements in effect at the
time the civilian care is rendered apply in determining whether a
Nonavailability Statement is required.
(iv) Nonavailability Statement must be filed with applicable claim.
When a claim is submitted for CHAMPUS benefits that includes services
for which a Nonavailability Statement is required, such statement must
be submitted along with the claim form.
(b) Information required to adjudicate a CHAMPUS claim. Claims
received that are not completed fully and that do not provide the
following minimum information may be returned. If enough space is not
available on the appropriate claim form, the required information must
be attached separately and include the patient's name and address, be
dated, and signed.
(1) Patient's identification information. The following patient
identification information must be completed on every CHAMPUS claim form
submitted for benefits before a claim will be adjudicated and processed:
(i) Patient's full name.
(ii) Patient's residence address.
(iii) Patient's date of birth.
(iv) Patient's relationship to sponsor.
Note: If name of patient is different from sponsor, explain (for
example, stepchild or illegitimate child).
(v) Patient's identification number (from DD Form 1173).
(vi) Patient's identification card effective date and expiration
date (from DD Form 1173).
(vii) Sponsor's full name.
(viii) Sponsor's service or social security number.
(ix) Sponsor's grade.
(x) Sponsor's organization and duty station. Home port for ships;
home address for retiree.
(xi) Sponsor's branch of service or deceased or retiree's former
branch of service.
(xii) Sponsor's current status. Active duty, retired, or deceased.
(2) Patient treatment information. The following patient treatment
information routinely is required relative to the medical services and
supplies for which a claim for benefits is being made before a claim
will be adjudicated and processed:
(i) Diagnosis. All applicable diagnoses are required; standard
nomenclature is acceptable. In the absence of a diagnosis, a narrative
description of the definitive set of symptoms for which the medical care
was rendered must be provided.
(ii) Source of care. Full name of source of care (such as hospital
or physician) providing the specific medical services being claimed.
(iii) Full address of source of care. This address must be where the
care actually was provided, not a billing address.
(iv) Attending physician. Name of attending physician (or other
authorized individual professional provider).
(v) Referring physician. Name and address of ordering, prescribing,
or referring physician.
(vi) Status of patient. Status of patient at the time the medical
services and supplies were rendered (that is, inpatient or outpatient).
(vii) Dates of service. Specific and inclusive dates of service.
(viii) Inpatient stay. Source and dates of related inpatient stay
(if applicable).
(ix) Physicians or other authorized individual professional
providers. The claims must give the name of the individual actually
rendering the care,
[[Page 203]]
along with the individual's professional status (e.g., M.D., Ph.D.,
R.N., etc.) and provider number, if the individual signing the claim is
not the provider who actually rendered the service. The following
information must also be included:
(A) Date each service was rendered.
(B) Procedure code or narrative description of each procedure or
service for each date of service.
(C) Individual charge for each item of service or each supply for
each date.
(D) Detailed description of any unusual complicating circumstances
related to the medical care provided that the physician or other
individual professional provider may choose to submit separately.
(x) Hospitals or other authorized institutional providers. For care
provided by hospitals (or other authorized institutional providers), the
following information also must be provided before a claim will be
adjudicated and processed:
(A) An itemized billing showing each item of service or supply
provided for each day covered by the claim.
Note: The Director, OCHAMPUS, or a designee, may approve, in
writing, an alternative billing procedure for RTCs or other special
institutions, in which case the itemized billing requirement may be
waived. The particular facility will be aware of such approved alternate
billing procedure.
(B) Any absences from a hospital or other authorized institution
during a period for which inpatient benefits are being claimed must be
identified specifically as to date or dates and provide details on the
purpose of the absence. Failure to provide such information will result
in denial of benefits and, in an ongoing case, termination of benefits
for the inpatient stay at least back to the date of the absence.
(C) For hospitals subject to the CHAMPUS DRG-based payment system
(see paragraph (a)(1)(ii)(D) of Sec. 199.14), the following information
is also required:
(1) The principal diagnosis (the diagnosis established, after study,
to be chiefly responsible for causing the patient's admission to the
hospital).
(2) All secondary diagnoses.
(3) All significant procedures performed.
(4) The discharge status of the beneficiary.
(5) The hospital's Medicare provider number.
(6) The source of the admission.
(D) Claims submitted by hospitals (or other authorized institutional
providers) must include the name of the individual actually rendering
the care, along with the individual's professional status (e.g., M.D.,
Ph.D., R.N., etc.).
(xi) Prescription drugs and medicines (and insulin). For
prescription drugs and medicines (and insulin, whether or not a
prescription is required) receipted bills must be attached and the
following additional information provided:
(A) Name of drug.
Note: When the physician or pharmacist so requests, the name of the
drugs may be submitted to the CHAMPUS fiscal intermediary directly by
the physician or pharmacist.
(B) Strength of drug.
(C) Name and address of pharmacy where drug was purchased.
(D) Prescription number of drug being claimed.
(xii) Other authorized providers. For items from other authorized
providers (such as medical supplies), an explanation as to the medical
need must be attached to the appropriate claim form. For purchases of
durable equipment under the ECHO it is necessary also to attach a copy
of the authorization.
(xiii) Nonparticipating providers. When the beneficiary or sponsor
submits the claim to the CHAMPUS fiscal intermediary (that is, the
provider elects not to participate), an itemized bill from the provider
to the beneficiary or sponsor must be attached to the CHAMPUS claim
form.
(3) Medical records/medical documentation. Medical records are of
vital importance in the care and treatment of the patient. Medical
records serve as a basis for planning of patient care and for the
ongoing evaluation of the patient's treatment and progress. Accurate and
timely completion of orders, notes, etc., enable different members of a
health care team and subsequent health care providers to have access to
relevant data concerning the patient. Appropriate medical records must
be maintained in order to accommodate
[[Page 204]]
utilization review and to substantiate that billed services were
actually rendered.
(i) All care rendered and billed must be appropriately documented in
writing. Failure to document the care billed will result in the claim or
specific services on the claim being denied CHAMPUS cost-sharing.
(ii) A pattern of failure to adequately document medical care will
result in episodes of care being denied CHAMPUS cost-sharing.
(iii) Cursory notes of a generalized nature that do not identify the
specific treatment and the patient's response to the treatment are not
acceptable.
(iv) The documentation of medical records must be legible and
prepared as soon as possible after the care is rendered. Entries should
be made when the treatment described is given or the observations to be
documented are made. The following are documentation requirements and
specific time frames for entry into the medical records:
(A) General requirements for acute medical/surgical services:
(1) Admission evaluation report within 24 hours of admission.
(2) Completed history and physical examination report within 72
hours of admission.
(3) Registered nursing notes at the end of each shift.
(4) Daily physician notes.
(B) Requirements specific to mental health services:
(1) Psychiatric admission evaluation report within 24 hours of
admission.
(2) History and physical examination within 24 hours of admission;
complete report documented within 72 hours for acute and residential
programs and within 3 working days for partial programs.
(3) Individual and family therapy notes within 24 hours of procedure
for acute, detoxification and Residential Treatment Center (RTC)
programs and within 48 hours for partial programs.
(4) Preliminary treatment plan within 24 hours of admission.
(5) Master treatment plan within 5 calendar days of admission for
acute care, 10 days for RTC care, 5 days for full-day partial programs
and within 7 days for half-day partial programs.
(6) Family assessment report within 72 hours of admission for acute
care and 7 days for RTC and partial programs.
(7) Nursing assessment report within 24 hours of admission.
(8) Nursing notes at the end of each shift for acute and
detoxification programs; every ten visits for partial hospitalization;
and at least once a week for RTCs.
(9) Daily physician notes for intensive treatment, detoxification,
and rapid stabilization programs; twice per week for acute programs; and
once per week for RTC and partial programs.
(10) Group therapy notes once per week.
(11) Ancillary service notes once per week.
Note: A pattern of failure to meet the above criteria may result in
provider sanctions prescribed under Sec. 199.9.
(4) Double coverage information. When the CHAMPUS beneficiary is
eligible for medical benefits coverage through another plan, insurance,
or program, either private or Government, the following information must
be provided:
(i) Name of other coverage. Full name and address of double coverage
plan, insurance, or program (such as Blue Cross, Medicare, commercial
insurance, and state program).
(ii) Source of double coverage. Source of double coverage (such as
employment, including retirement, private purchase, membership in a
group, and law).
(iii) Employer information. If source of double coverage is
employment, give name and address of employer.
(iv) Identification number. Identification number or group number of
other coverage.
(5) Right to additional information. (i) As a condition precedent to
the cost-sharing of benefits under this part or pursuant to a review or
audit, whether the review or audit is prospective, concurrent, or
retroactive, OCHAMPUS or CHAMPUS contractors may request, and shall be
entitled to receive, information from a physician or hospital or other
person, institution, or organization (including a local, state, or
Federal Government agency) providing services or supplies to the
beneficiary
[[Page 205]]
for whom claims or requests for approval for benefits are submitted.
Such information and records may relate to the attendance, testing,
monitoring, examination, diagnosis, treatment, or services and supplies
furnished to a beneficiary and, as such, shall be necessary for the
accurate and efficient administration of CHAMPUS benefits. This may
include requests for copies of all medical records or documentation
related to the episode of care. In addition, before a determination on a
request for preauthorization or claim of benefits is made, a
beneficiary, or sponsor, shall provide additional information relevant
to the requested determination, when necessary. The recipient of such
information shall hold such records confidential except when:
(A) Disclosure of such information is authorized specifically by the
beneficiary;
(B) Disclosure is necessary to permit authorized governmental
officials to investigate and prosecute criminal actions; or
(C) Disclosure is authorized or required specifically under the
terms of DoD Directive 5400.7 and 5400.11, the Freedom of Information
Act, and the Privacy Act (refer to paragraph (m) of Sec. 199.1 of this
part).
(ii) For the purposes of determining the applicability of and
implementing the provisions of Sec. Sec. 199.8 and 199.9, or any
provision of similar purpose of any other medical benefits coverage or
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries, without consent
or notice to any beneficiary or sponsor, may release to or obtain from
any insurance company or other organization, governmental agency,
provider, or person, any information with respect to any beneficiary
when such release constitutes a routine use duly published in the
Federal Register in accordance with the Privacy Act.
(iii) Before a beneficiary's claim of benefits is adjudicated, the
beneficiary or the provider(s) must furnish to CHAMPUS that information
which is necessary to make the benefit determination. Failure to provide
the requested information will result in denial of the claim. A
beneficiary, by submitting a CHAMPUS claim(s) (either a participating or
nonparticipating claim), is deemed to have given consent to the release
of any and all medical records or documentation pertaining to the claims
and the episode of care.
(c) Signature on CHAMPUS Claim Form--(1) Beneficiary signature.
CHAMPUS claim forms must be signed by the beneficiary except under the
conditions identified in paragraph (c)(1)(v) of this section. The parent
or guardian may sign for any beneficiary under 18 years.
(i) Certification of identity. This signature certifies that the
patient identification information provided is correct.
(ii) Certification of medical care provided. This signature
certifies that the specific medical care for which benefits are being
claimed actually were rendered to the beneficiary on the dates
indicated.
(iii) Authorization to obtain or release information. Before
requesting additional information necessary to process a claim or
releasing medical information, the signature of the beneficiary who is
18 years old or older must be recorded on or obtained on the CHAMPUS
claim form or on a separate release form. The signature of the
beneficiary, parent, or guardian will be requested when the beneficiary
is under 18 years.
Note: If the care was rendered to a minor and a custodial parent or
legal guardian requests information prior to the minor turning 18 years
of age, medical records may still be released pursuant to the signature
of the parent or guardian, and claims information may still be released
to the parent or guardian in response to the request, even though the
beneficiary has turned 18 between the time of the request and the
response. However, any follow-up request or subsequent request from the
parent or guardian, after the beneficiary turns 18 years of age, will
necessitate the authorization of the beneficiary (or the beneficiary's
legal guardian as appointed by a cognizant court), before records and
information can be released to the parent or guardian.
(iv) Certification of accuracy and authorization to release double
coverage information. This signature certifies to the accuracy of the
double coverage information and authorizes the release of any
information related to double coverage. (Refer to Sec. 199.8 of this
part).
[[Page 206]]
(v) Exceptions to beneficiary signature requirement. (A) Except as
required by paragraph (c)(1)(iii) of this section, the signature of a
spouse, parent, or guardian will be accepted on a claim submitted for a
beneficiary who is 18 years old or older.
(B) When the institutional provider obtains the signature of the
beneficiary (or the signature of the parent or guardian when the
beneficiary is under 18 years) on a CHAMPUS claim form at admission, the
following participating claims may be submitted without the
beneficiary's signature.
(1) Claims for laboratory and diagnostic tests and test
interpretations from radiologists, pathologists, neurologists, and
cardiologists.
(2) Claims from anesthesiologists.
(C) Claims filed by providers using CHAMPUS-approved signature-on-
file and claims submission procedures.
(2) Provider's signature. A participating provider (see paragraph
(a)(8) of Sec. 199.6) is required to sign the CHAMPUS claim form.
(i) Certification. A participating provider's signature on a CHAMPUS
claim form:
(A) Certifies that the specific medical care listed on the claim
form was, in fact, rendered to the specific beneficiary for which
benefits are being claimed, on the specific date or dates indicated, at
the level indicated and by the provider signing the claim unless the
claim otherwise indicates another individual provided the care. For
example, if the claim is signed by a psychiatrist and the care billed
was rendered by a psychologist or licensed social worker, the claim must
indicate both the name and profession of the individual who rendered the
care.
(B) Certifies that the provider has agreed to participate (providing
this agreement has been indicated on the claim form) and that the
CHAMPUS-determined allowable charge or cost will constitute the full
charge or cost for the medical care listed on the specific claim form;
and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS
payment combined with the cost-shared amount paid by, or on behalf of
the beneficiary, as full payment for the covered medical services or
supplies.
(1) Thus, neither CHAMPUS nor the sponsor is responsible for any
additional charges, whether or not the CHAMPUS-determined charge or cost
is less than the billed amount.
(2) Any provider who signs and submits a CHAMPUS claim form and then
violates this agreement by billing the beneficiary or sponsor for any
difference between the CHAMPUS-determined charge or cost and the amount
billed is acting in bad faith and is subject to penalties including
withdrawal of CHAMPUS approval as a CHAMPUS provider by administrative
action of the Director, OCHAMPUS, or a designee, and possible legal
action on the part of CHAMPUS, either directly or as a part of a
beneficiary action, to recover monies improperly obtained from CHAMPUS
beneficiaries or sponsors (refer to Sec. 199.6 of this part.)
(ii) Physician or other authorized individual professional provider.
A physician or other authorized individual professional provider is
liable for any signature submitted on his or her behalf. Further, a
facsimile signature is not acceptable unless such facsimile signature is
on file with, and has been authorized specifically by, the CHAMPUS
fiscal intermediary serving the state where the physician or other
authorized individual professional provider practices.
(iii) Hospital or other authorized institutional provider. The
provider signature on a claim form for institutional services must be
that of an authorized representative of the hospital or other authorized
institutional provider, whose signature is on file with and approved by
the appropriate CHAMPUS fiscal intermediary.
(d) Claims filing deadline. For all services provided on or after
January 1, 1993, to be considered for benefits, all claims submitted for
benefits must, except as provided in paragraph (d)(2) of this section,
be filed with the appropriate CHAMPUS contractor no later than one year
after the services are provided. Unless the requirement is waived,
failure to file a claim within this deadline waives all rights to
benefits for such services or supplies.
(1) Claims returned for additional information. When a claim is
submitted initially within the claim filing time
[[Page 207]]
limit, but is returned in whole or in part for additional information to
be considered for benefits, the returned claim, along with the requested
information, must be resubmitted and received by the appropriate CHAMPUS
contractor no later than the later of:
(i) One year after the services are provided; or
(ii) 90 days from the date the claim was returned to the provider or
beneficiary.
(2) Exception to claims filing deadline. The Director, OCHAMPUS, or
a designee, may grant exceptions to the claims filing deadline
requirements.
(i) Types of exception. (A) Retroactive eligibility. Retroactive
CHAMPUS eligibility determinations.
(B) Administrative error. Administrative error (that is,
misrepresentation, mistake, or other accountable action) of an officer
or employee of OCHAMPUS (including OCHAMPUSEUR) or a CHAMPUS fiscal
intermediary, performing functions under CHAMPUS and acting within the
scope of that official's authority.
(C) Mental incompetency. Mental incompetency of the beneficiary or
guardian or sponsor, in the case of a minor child (which includes
inability to communicate, even if it is the result of a physical
disability).
(D) Delays by other health insurance. When not attributable to the
beneficiary, delays in adjudication by other health insurance companies
when double coverage coordination is required before the CHAMPUS benefit
determination.
(E) Other waiver authority. The Director, OCHAMPUS may waive the
claims filing deadline in other circumstances in which the Director
determines that the waiver is necessary in order to ensure adequate
access for CHAMPUS beneficiaries to health care services.
(ii) Request for exception to claims filing deadline. Beneficiaries
who wish to request an exception to the claims filing deadline may
submit such a request to the CHAMPUS fiscal intermediary having
jurisdiction over the location in which the service was rendered, or as
otherwise designated by the Director, OCHAMPUS.
(A) Such requests for an exception must include a complete
explanation of the circumstances of the late filing, together with all
available documentation supporting the request, and the specific claim
denied for late filing.
(B) Each request for an exception to the claims filing deadline is
reviewed individually and considered on its own merits.
(e) Other claims filing requirements. Notwithstanding the claims
filing deadline described in paragraph (d) of this section, to lessen
any potential adverse impact on a CHAMPUS beneficiary or sponsor that
could result from a retroactive denial, the following additional claims
filing procedures are recommended or required.
(1) Continuing care. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever medical services and supplies are being
rendered on a continuing basis, an appropriate claim or claims should be
submitted every 30 days (monthly) whether submitted directly by the
beneficiary or sponsor or by the provider on behalf of the beneficiary.
Such claims may be submitted more frequently if the beneficiary or
provider so elects. The Director, OCHAMPUS, or a designee, also may
require more frequent claims submission based on dollars. Examples of
care that may be rendered on a continuing basis are outpatient physical
therapy, private duty (special) nursing, or inpatient stays. For claims
subject to the CHAMPUS DRG-based payment system, claims may be submitted
only after the beneficiary has been discharged or transferred from the
hospital.
(2) [Reserved]
(3) Claims involving the services of marriage and family counselors,
pastoral counselors, and supervised mental health counselors. CHAMPUS
requires that marriage and family counselors, pastoral counselors, and
supervised mental health counselors make a written report to the
referring physician concerning the CHAMPUS beneficiary's progress.
Therefore, each claim for reimbursement for services of marriage and
family counselors, pastoral counselors, and supervised mental health
counselors must include certification to the effect that a written
communication has been made or will be made to the referring physician
at
[[Page 208]]
the end of treatment, or more frequently, as required by the referring
physician.
(f) Preauthorization. When specifically required in other sections
of this part, preauthorization requires the following:
(1) Preauthorization must be granted before benefits can be
extended. In those situations requiring preauthorization, the request
for such preauthorization shall be submitted and approved before
benefits may be extended, except as provided in Sec. 199.4(a)(11). If a
claim for services or supplies is submitted without the required
preauthorization, no benefits shall be paid, unless the Director,
OCHAMPUS, or a designee, has granted an exception to the requirement for
preauthorization.
(i) Specifically preauthorized services. An approved
preauthorization specifies the exact services or supplies for which
authorization is being given. In a preauthorization situation, benefits
cannot be extended for services or supplies provided beyond the specific
authorization.
(ii) Time limit on preauthorization. Approved preauthorizations are
valid for specific periods of time, appropriate for the circumstances
presented and specified at the time the preauthorization is approved. In
general, preauthorizations are valid for 30 days. If the preauthorized
service or supplies are not obtained or commenced within the specified
time limit, a new preauthorization is required before benefits may be
extended. For organ and stem cell transplants, the preauthorization
shall remain in effect as long as the beneficiary continues to meet the
specific transplant criteria set forth in the TRICARE/CHAMPUS Policy
Manual, or until the approved transplant occurs.
(2) Treatment plan. Each preauthorization request shall be
accompanied by a proposed medical treatment plan (for inpatient stays
under the Basic Program) which shall include generally a diagnosis; a
detailed summary of complete history and physical; a detailed statement
of the problem; the proposed treatment modality, including anticipated
length of time the proposed modality will be required; any available
test results; consultant's reports; and the prognosis. When the
preauthorization request involves transfer from a hospital to another
inpatient facility, medical records related to the inpatient stay also
must be provided.
(3) Claims for services and supplies that have been preauthorized.
Whenever a claim is submitted for benefits under CHAMPUS involving
preauthorized services and supplies, the date of the approved
preauthorization must be indicated on the claim form and a copy of the
written preauthorization must be attached to the appropriate CHAMPUS
claim.
(4) Advance payment prohibited. No CHAMPUS payment shall be made for
otherwise authorized services or items not yet rendered or delivered to
the beneficiary.
(g) Claims review. It is the responsibility of the CHAMPUS fiscal
intermediary (or OCHAMPUS, including OCHAMPUSEUR) to review each CHAMPUS
claim submitted for benefit consideration to ensure compliance with all
applicable definitions, conditions, limitations, or exclusions specified
or enumerated in this part. It is also required that before any CHAMPUS
benefits may be extended, claims for medical services and supplies will
be subject to utilization review and quality assurance standards, norms,
and criteria issued by the Director, OCHAMPUS, or a designee (see
paragraph (a)(1)(v) of Sec. 199.14 for review standards for claims
subject to the CHAMPUS DRG-based payment system).
(h) Benefit payments. CHAMPUS benefit payments are made either
directly to the beneficiary or sponsor or to the provider, depending on
the manner in which the CHAMPUS claim is submitted.
(1) Benefit payments made to beneficiary or sponsor. When the
CHAMPUS beneficiary or sponsor signs and submits a specific claim form
directly to the appropriate CHAMPUS fiscal intermediary (or OCHAMPUS,
including OCHAMPUSEUR), any CHAMPUS benefit payments due as a result of
that specific claim submission will be made in the name of, and mailed
to, the beneficiary or sponsor. In such circumstances, the beneficiary
or sponsor
[[Page 209]]
is responsible to the provider for any amounts billed.
(2) Benefit payments made to participating provider. When the
authorized provider elects to participate by signing a CHAMPUS claim
form, indicating participation in the appropriate space on the claim
form, and submitting a specific claim on behalf of the beneficiary to
the appropriate CHAMPUS fiscal intermediary, any CHAMPUS benefit
payments due as a result of that claim submission will be made in the
name of and mailed to the participating provider. Thus, by signing the
claim form, the authorized provider agrees to abide by the CHAMPUS-
determined allowable charge or cost, whether or not lower than the
amount billed. Therefore, the beneficiary or sponsor is responsible only
for any required deductible amount and any cost-sharing portion of the
CHAMPUS-determined allowable charge or cost as may be required under the
terms and conditions set forth in Sec. Sec. 199.4 and 199.5 of this
part.
(3) CEOB. When a CHAMPUS claim is adjudicated, a CEOB is sent to the
beneficiary or sponsor. A copy of the CEOB also is sent to the provider
if the claim was submitted on a participating basis. The CEOB form
provides, at a minimum, the following information:
(i) Name and address of beneficiary.
(ii) Name and address of provider.
(iii) Services or supplies covered by claim for which CEOB applies.
(iv) Dates services or supplies provided.
(v) Amount billed; CHAMPUS-determined allowable charge or cost; and
amount of CHAMPUS payment.
(vi) To whom payment, if any, was made.
(vii) Reasons for any denial.
(viii) Recourse available to beneficiary for review of claim
decision (refer to Sec. 199.10 of this part).
Note: The Director, OCHAMPUS, or a designee, may authorize a CHAMPUS
fiscal intermediary to waive a CEOB to protect the privacy of a CHAMPUS
beneficiary.
(4) Benefit under $1. If the CHAMPUS benefit is determined to be
under $1, payment is waived.
(i) Extension of the Active Duty Dependents Dental Plan to areas
outside the United States. The Assistant Secretary of Defense (Health
Affairs) (ASD(HA) may, under the authority of 10 U.S.C. 1076a(h), extend
the Active Duty Dependents Dental Plan to areas other than those areas
specified in paragraph (a)(2)(i) of this section for the eligible
beneficiaries of members of the Uniformed Services. In extending the
program outside the Continental United States, the ASD(HA), or designee,
is authorized to establish program elements, methods of administration
and payment rates and procedures to providers that are different from
those in effect under this section in the Continental United States to
the extent the ASD(HA), or designee, determines necessary for the
effective and efficient operation of the plan outside the Continental
United States. This includes provisions for preauthorization of care if
the needed services are not available in a Uniformed Service overseas
dental treatment facility and payment by the Department of certain cost-
shares and other portions of a provider's billed charges. Other
differences may occur based on limitations in the availability and
capabilities of the Uniformed Services overseas dental treatment
facility and a particular nation's civilian sector providers in certain
areas. Otherwise, rules pertaining to services covered under the plan
and quality of care standards for providers shall be comparable to those
in effect under this section in the Continental United States and
available military guidelines. In addition, all provisions of 10 U.S.C.
1076a shall remain in effect.
(j) General assignment of benefits not recognized. CHAMPUS does not
recognize any general assignment of CHAMPUS benefits to another person.
All CHAMPUS benefits are payable as described in this and other Sections
of this part.
[51 FR 24008, July 1, 1986]
Editorial Note: For Federal Register citations affecting Sec.
199.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 199.8 Double coverage.
(a) Introduction. (1) In enacting TRICARE legislation, Congress
clearly
[[Page 210]]
has intended that TRICARE be the secondary payer to all health benefit,
insurance and third-party payer plans. 10 U.S.C. 1079(j)(1) specifically
provides that a benefit may not be paid under a plan (CHAMPUS) covered
by this section in the case of a person enrolled in, or covered by, any
other insurance, medical service, or health plan, including any plan
offered by a third-party payer (as defined in 10 U.S.C. 1095(h)(1)) to
the extent that the benefit is also a benefit under the other plan,
except in the case of a plan administered under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.).
(2) The provision in paragraph (a)(1) of this section is made
applicable specifically to retired members, dependents, and survivors by
10 U.S.C. 1086(g). The underlying intent, in addition to preventing
waste of Federal resources, is to ensure that TRICARE beneficiaries
receive maximum benefits while ensuring that the combined payments of
TRICARE and other health and insurance plans do not exceed the total
charges.
(b) Double coverage plan. A double coverage plan is one of the
following:
(1) Insurance plan. An insurance plan is any plan or program that is
designed to provide compensation or coverage for expenses incurred by a
beneficiary for medical services and supplies. It includes plans or
programs for which the beneficiary pays a premium to an issuing agent as
well as those plans or programs to which the beneficiary is entitled as
a result of employment or membership in, or association with, an
organization or group.
(2) Medical service or health plan. A medical service or health plan
is any plan or program of an organized health care group, corporation,
or other entity for the provision of health care to an individual from
plan providers, both professional and institutional. It includes plans
or programs for which the beneficiary pays a premium to an issuing agent
as well as those plans or programs to which the beneficiary is entitled
as a result of employment or membership in, or association with, an
organization or group.
(3) Third-party payer. A third-party payer means an entity that
provides an insurance, medical service, or health plan by contract or
agreement, including an automobile liability insurance or no-fault
insurance carrier and a workers' compensation program or plan, and any
other plan or program (e.g., homeowners insurance, etc.) that is
designed to provide compensation or coverage for expenses incurred by a
beneficiary for medical services or supplies. For purposes of the
definition of ``third-party payer,'' an insurance, medical service or
health plan includes a preferred provider organization, an insurance
plan described as Medicare supplemental insurance, and a personal injury
protection plan or medical payments benefit plan for personal injuries
resulting from the operation of a motor vehicle.
(4) Exceptions. Double coverage plans do not include:
(i) Plans administered under title XIX of the Social Security Act
(Medicaid);
(ii) Coverage specifically designed to supplement CHAMPUS benefits
(a health insurance policy or other health benefit plan that meets the
definition and criteria under supplemental insurance plan as set forth
in Sec. 199.2(b));
(iii) Entitlement to receive care from Uniformed Services medical
care facilities;
(iv) Certain Federal Government programs, as prescribed by the
Director, OCHAMPUS, that are designed to provide benefits to a distinct
beneficiary population and for which entitlement does not derive from
either premium payment of monetary contribution (for example, the Indian
Health Service); or
(v) State Victims of Crime Compensation Programs.
(c) Application of double coverage provisions. CHAMPUS claims
submitted for otherwise covered services or supplies and which involve
double coverage shall be adjudicated as follows:
(1) TRICARE last pay. For any claim that involves a double coverage
plan as defined in paragraph (b) of this section, TRICARE shall be last
pay except as may be authorized by the Director, TRICARE Management
Activity, or a designee, pursuant to paragraph (c)(2) of this section.
That is, TRICARE benefits may not be extended until all other double
coverage plans have adjudicated the claim.
[[Page 211]]
(2) TRICARE advance payment. The Director, TRICARE Management
Activity, or a designee, may authorize payment of a claim in advance of
adjudication of the claim by a double coverage plan and recover, under
Sec. 199.12, the TRICARE costs of health care incurred on behalf of the
covered beneficiary under the following conditions:
(i) The claim is submitted for health care services furnished to a
covered beneficiary; and,
(ii) The claim is identified as involving services for which a
third-party payer, other than a primary medical insurer, may be liable.
(3) Primary medical insurer. For purposes of paragraph (c)(2) of
this section, a ``primary medical insurer'' is an insurance plan,
medical service or health plan, or a third-party payer under this
section, the primary or sole purpose of which is to provide or pay for
health care services, supplies, or equipment. The term ``primary medical
insurer'' does not include automobile liability insurance, no-fault
insurance, workers' compensation program or plan, homeowners insurance,
or any other similar third-party payer as may be designated by the
Director, TRICARE Management Activity, or a designee, in any policy
guidance or instructions issued in implementation of this Part.
(4) Waiver of benefits. A CHAMPUS beneficiary may not elect to waive
benefits under a double coverage plan and use CHAMPUS. Whenever double
coverage exists, the provisions of this Section shall be applied.
(5) Lack of payment by double coverage plan. Amounts that have been
denied by a double coverage plan simply because a claim was not filed
timely or because the beneficiary failed to meet some other requirement
of coverage cannot be paid. If a statement from the double coverage plan
as to how much that plan would have paid had the claim met the plan's
requirements is provided to the CHAMPUS contractor, the claim can be
processed as if the double coverage plan actually paid the amount shown
on the statement. If no such statement is received, no payment from
CHAMPUS is authorized.
(6) Lack of payment by double coverage plan. Amounts that have been
denied by a double coverage plan simply because a claim was not filed
timely or because the beneficiary failed to meet some other requirement
of coverage cannot be paid. If a statement from the double coverage plan
as to how much that plan would have paid had the claim met the plan's
requirements is provided to the CHAMPUS contractor, the claim can be
processed as if the double coverage plan actually paid the amount shown
on the statement. If no such statement is received, no payment from
CHAMPUS is authorized.
(d) Special considerations--(1) CHAMPUS and Medicare--(i) General
rule. In any case in which a beneficiary is eligible for both Medicare
and CHAMPUS received medical or dental care for which payment may be
made under Medicare and CHAMPUS, Medicare is always the primary payer
except in the case of retroactive determinations of disability as
provided in paragraph (d)(1)(v) of this section. For dependents of
active duty members, payment will be determined in accordance to
paragraph (c) of this section. For all other beneficiaries eligible for
Medicare, the amount payable under CHAMPUS shall be the amount of actual
out-of-pocket costs incurred by the beneficiary for that care over the
sum of the amount paid for that care under Medicare and the total of all
amounts paid or payable by third party payers other than Medicare.
(ii) Payment limit. The total CHAMPUS amount payable for care under
paragraph (d)(1)(i) of this section may not exceed the total amount that
would be paid under CHAMPUS if payment for that care was made solely
under CHAMPUS.
(iii) Application of general rule. In applying the general rule
under paragraph (d)(1)(i) of this section, the first determination will
be whether payment may be made under Medicare. For this purpose,
Medicare exclusions, conditions, and limitations will be based for the
determination.
(A) For items or services or portions or segments of items or
services for which payment may be made under Medicare, the CHAMPUS
payment will be the amount of the beneficiary's actual out of pocket
liability, minus the amount payable by Medicare, also minus amount
payable by other third
[[Page 212]]
party payers, subject to the limit under paragraph (d)(1)(ii) of this
section.
(B) For items or services or segments of items or services for which
no payment may be made under Medicare, the CHAMPUS payment will be the
same as it would be for a CHAMPUS eligible retiree, dependent, or
survivor beneficiary who is not Medicare eligible.
(C) For Medicare beneficiaries who enroll in Medicare Part D, the
Part D plan is primary and TRICARE is secondary payer. TRICARE will pay
the beneficiary's out-of-pocket costs for Medicare and TRICARE covered
medications, including the initial deductible and Medicare Part D cost-
sharing amounts up to the initial coverage limit of the Medicare Part D
plan. The Medicare Part D plan, although the primary plan, pays nothing
during any coverage gap period. When the beneficiary becomes responsible
for 100 percent of the drug costs under a Part D coverage gap period,
the beneficiary may use the TRICARE pharmacy benefit as the secondary
payer. TRICARE will cost share during the coverage gap to the same
extent as it does under Section 199.21 for beneficiaries not enrolled in
Medicare Part D plan. The beneficiary is responsible for the applicable
TRICARE pharmacy cost-sharing amounts (and deductible if using a retail
non-network pharmacy). Part D plan sponsors may offer a defined standard
benefit, or an actuarially equivalent standard benefit. Part D plan
sponsors may also offer alternative prescription drug coverage, which
may consist of basic alternative coverage or enhanced alternative
coverage. Therefore depending on the Part D plan that a beneficiary
chooses, monthly premiums, coinsurances, co-pays, deductibles and
benefit design may vary from plan to plan. TRICARE payment of the
beneficiary's initial deductible, if any, along with payment of any
beneficiary cost share count towards total spending on drugs, and may
have the effect of moving the beneficiary more quickly through the
initial phase of coverage to the coverage gap. Irrespective of the phase
of the benefit in which a beneficiary may be, if a beneficiary is
accessing a pharmacy under contract with his or her Part D plan, the
provider will bill the Part D plan first, then TRICARE. If the
beneficiary chooses to use his or her TRICARE pharmacy benefit during a
coverage gap under Part D, the beneficiary may do so, but the
beneficiary is responsible for the TRICARE cost-shares.
(iv) Examples of applications of general rule. The following
examples are illustrative. They are not all-inclusive.
(A) In the case of a Medicare-eligible beneficiary receiving typical
physician office visit services, Medicare payment generally will be
made. CHAMPUS payment will be determined consistent with paragraph
(d)(1)(iii)(A) of this section.
(B) In the case of a Medicare-eligible beneficiary residing and
receiving medical care overseas, Medicare payment generally may not be
made. CHAMPUS payment will be determined consistent with paragraph
(d)(1)(iii)(B) of this section.
(C) In the case of a Medicare-eligible beneficiary receiving skilled
nursing facility services a portion of which is payable by Medicare
(such as during the first 100 days) and a portion of which is not
payable by Medicare (such as after 100 days), CHAMPUS payment for the
first portion will be determined consistent with paragraph
(d)(1)(iii)(A) of this section and for the second portion consistent
with paragraph (d)(1)(iii)(B) of this section.
(v) Application of catastrophic cap. Only in cases in which CHAMPUS
payment is determined consistent with paragraph (d)(1)(iii)(B) of this
section, actual beneficiary out of pocket liability remaining after
CHAMPUS payments will be counted for purposes of the annual catastrophic
loss protection, set forth under Sec. 199.4(f)(10). When a family has
met the cap, CHAMPUS will pay allowable amounts for remaining covered
services through the end of that calendar year.
(vi) Retroactive determinations of disability. In circumstances
involving determinations of retroactive Medicare Part A entitlement for
persons under 65 years of age, Medicare becomes the primary payer
effective as of the date of issuance of the retroactive determination by
the Social Security Administration. For care and services
[[Page 213]]
rendered prior to issuance of the retroactive determination, the CHAMPUS
payment will be determined consistent with paragraph (d)(1)(iii)(B) of
this section notwithstanding the beneficiary's retroactive entitlement
for Medicare Part A during that period.
(vii) Effect on enrollment in Medicare Advantage Prescription Drug
(MA-PD) plan. In the case of a beneficiary enrolled in a MA-PD plan who
receives items or services for which payment may be made under both the
MA-PD plan and CHAMPUS/TRICARE, a claim for the beneficiary's normal
out-of-pocket costs under the MA-PD plan may be submitted for CHAMPUS/
TRICARE payment. However, consistent with paragraph (c)(4) of this
section, out-of-pocket costs do not include costs associated with
unauthorized out-of-system care or care otherwise obtained under
circumstances that result in a denial or limitation of coverage for care
that would have been covered or fully covered had the beneficiary met
applicable requirements and procedures. In such cases, the CHAMPUS/
TRICARE amount payable is limited to the amount that would have been
paid if the beneficiary had received care covered by the Medicare
Advantage plan. If the TRICARE-Medicare beneficiary enrolls in a MA-PD
drug plan, it generally will be governed by Medicare Part C, although
plans that offer a prescription drug benefit must comply with Medicare
Part D rules. The beneficiary has to pay the plan's monthly premiums and
obtain all medical care and prescription drugs through the Medicare
Advantage plan before seeking CHAMPUS/TRICARE payment. CHAMPUS/TRICARE
payment for such beneficiaries may not exceed that which would be
payable for a beneficiary under paragraph (d)(1)(iii)(C) of this
section.
(viii) Effect of other double coverage plans, including medigap
plans. CHAMPUS is second payer to other third-party payers of health
insurance, including Medicare supplemental plans.
(ix) Effect of employer-provided insurance. In the case of
individuals with health insurance due to their current employment
status, the employer insurance plan shall be first payer, Medicare shall
be the second payer, and CHAMPUS shall be the tertiary payer.
(2) CHAMPUS and Medicaid. Medicaid is not a double coverage plan. In
any double coverage situation involving Medicaid, CHAMPUS is always the
primary payer.
(3) TRICARE and Workers' Compensation. TRICARE benefits are not
payable for a work-related illness or injury that is covered under a
workers' compensation program. Pursuant to paragraph (c)(2) of this
section, however, the Director, TRICARE Management Activity, or a
designee, may authorize payment of a claim involving a work-related
illness or injury covered under a workers' compensation program in
advance of adjudication and payment of the workers' compensation claim
and then recover, under Sec. 199.12, the TRICARE costs of health care
incurred on behalf of the covered beneficiary.
(4) Extended Care Health Option (ECHO). For those services or
supplies that require use of public facilities, an ECHO eligible
beneficiary (or sponsor or guardian acting on behalf of the beneficiary)
does not have the option of waiving the full use of public facilities
which are determined by the Director, TRICARE Management Activity or
designee to be available and adequate to meet a disability related need
for which an ECHO benefit was requested. Benefits eligible for payment
under a state plan for medical assistance under Title XIX of the Social
Security Act (Medicaid) are never considered to be available in the
adjudication of ECHO benefits.
(5) Primary payer. The requirements of paragraph (d)(4) of this
section notwithstanding, TRICARE is primary payer for services and items
that are provided in accordance with the Individualized Family Service
Plan as required by Part C of the Individuals with Disabilities
Education Act and that are medically or psychologically necessary and
otherwise allowable under the TRICARE Basic Program or the Extended Care
Health Option.
(6) Prohibition against financial and other incentives not to enroll
in a group health plan--(i) General rule. Under 10 U.S.C. 1097c, an
employer or other entity is prohibited from offering TRICARE
beneficiaries financial or
[[Page 214]]
other benefits as incentives not to enroll in, or to terminate
enrollment in, a group health plan that is or would be primary to
TRICARE. This prohibition applies in the same manner as section
1862(b)(3)(C) of the Social Security Act applies to incentives for a
Medicare-eligible employee not to enroll in a group health plan that is
or would be primary to Medicare.
(ii) Application of general rule. The prohibition in paragraph
(d)(6)(i) of this section precludes offering to TRICARE beneficiaries an
alternative to the employer primary plan unless:
(A) The beneficiary has primary coverage other than TRICARE; or
(B) The benefit is offered under a cafeteria plan under section 125
of the Internal Revenue Code and is offered to all similarly situated
employees, including non-TRICARE eligible employees; or
(C) The benefit is offered under a cafeteria plan under section 125
of the Internal Revenue Code and, although offered only to TRICARE-
eligible employees, the employer does not provide any payment for the
benefit nor receive any direct or indirect consideration or compensation
for offering the benefit; the employer's only involvement is providing
the administrative support for the benefits under the cafeteria plan,
and the employee's participation in the plan is completely voluntary.
(iii) Documentation. In the case of a benefit excluded by paragraph
(d)(6)(ii)(C) of this section from the prohibition in paragraph
(d)(6)(i) of this section, the exclusion is dependent on the employer
maintaining in the employer's files a certification signed by the
employer that the conditions described in paragraph (d)(6)(ii)(C) of
this section are met, and, upon request of the Department of Defense,
providing a copy of that certification to the Department of Defense.
(iv) Remedies and penalties. (A) Remedies for violation of this
paragraph (d)(6) include but are not limited to remedies under the
Federal Claims Collection Act, 31 U.S.C. 3701 et seq.
(B) Penalties for violation of this paragraph (d)(6) include a civil
monetary penalty of up to $5,000 for each violation. The provisions of
section 1128A of the Social Security Act, 42 U.S.C. 1320a-7a, (other
than subsections (a) and (b)) apply to the civil monetary penalty in the
same manner as the provisions apply to a penalty or proceeding under
section 1128A.
(v) Definitions. For the purposes of this paragraph (d)(6):
(A) The term ``employer'' includes any State or unit of local
government and any employer that employs at least 20 employees.
(B) The term ``group health plan'' means a group health plan as that
term is defined in section 5000(b)(1) of the Internal Revenue Code of
1986 without regard to section 5000(d) of the Internal Revenue Code of
1986.
(C) The term ``similarly situated'' means sharing common attributes,
such as part-time employees, or other bona fide employment-based
classifications consistent with the employer's usual business practice.
(Internal Revenue Service regulations at 26 CFR 54.9802-1(d) may be used
as a reference for this purpose). However, in no event shall eligibility
for or entitlement to TRICARE (or ineligibility or non-entitlement to
TRICARE) be considered a bona fide employment-based classification.
(D) The term ``TRICARE-eligible employee'' means a covered
beneficiary under section 1086 of title 10, United States Code, Chapter
55, entitled to health care benefits under the TRICARE program.
(vi) Procedures. The Departments of Defense and Health and Human
Services are authorized to enter into agreements to further carry out
this section.
(e) Implementing instructions. The Director, OCHAMPUS, or a
designee, shall issue such instructions, procedures, or guidelines, as
necessary, to implement the intent of this section.
[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 62
FR 54384, Oct. 20, 1997; 63 FR 59232, Nov. 3, 1998; 64 FR 46141, Aug.
24, 1999; 66 FR 40607, Aug. 3, 2001; 67 FR 18827, Apr. 17, 2002; 68 FR
6618, Feb. 10, 2003; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30,
2003; 69 FR 51569, Aug. 20, 2004; 74 FR 55775, Oct. 29, 2009; 75 FR
18054, Apr. 9, 2010; 77 FR 38176, June 27, 2012; 82 FR 45447, Sept. 29,
2017]
[[Page 215]]
Sec. 199.9 Administrative remedies for fraud, abuse, and conflict
of interest.
(a) General. (1) This section sets forth provisions for invoking
administrative remedies under CHAMPUS in situations involving fraud,
abuse, or conflict of interest. The remedies impact institutional
providers, professional providers, and beneficiaries (including parents,
guardians, or other representatives of beneficiaries), and cover
situations involving criminal fraud, civil fraud, administrative
determinations of conflicts of interest or dual compensation, and
administrative determinations of fraud or abuse. The administrative
actions, remedies, and procedures may differ based upon whether the
initial findings were made by a court of law, another agency, or the
Director, OCHAMPUS (or designee).
(2) This section also sets forth provisions for invoking
administrative remedies in situations requiring administrative action to
enforce provisions of law, regulation, and policy in the administration
of CHAMPUS and to ensure quality of care for CHAMPUS beneficiaries.
Examples of such situations may include a case in which it is discovered
that a provider fails to meet requirements under this part to be an
authorized CHAMPUS provider; a case in which the provider ceases to be
qualified as a CHAMPUS provider because of suspension or revocation of
the provider's license by a local licensing authority; or a case in
which a provider meets the minimum requirements under this part but,
nonetheless, it is determined that it is in the best interest of the
CHAMPUS or CHAMPUS beneficiaries that the provider should not be an
authorized CHAMPUS provider.
(3) The administrative remedies set forth in this section are in
addition to, and not in lieu of, any other remedies or sanctions
authorized by law or regulation. For example, administrative action
under this section may be taken in a particular case even if the same
case will be or has been processed under the administrative procedures
established by the Department of Defense to implement the Program Fraud
Civil Remedies Act.
(4) Providers seeking payment from the Federal Government through
programs such as CHAMPUS have a duty to familiarize themselves with, and
comply with, the program requirements.
(5) CHAMPUS contractors and peer review organizations have a
responsibility to apply provisions of this regulation in the discharge
of their duties, and to report all known situations involving fraud,
abuse, or conflict of interest. Failure to report known situations
involving fraud, abuse, or conflict of interest will result in the
withholding of administrative payments or other contractual remedies as
determined by the Director, OCHAMPUS, or a designee.
(b) Abuse. The term ``abuse'' generally describes incidents and
practices which may directly or indirectly cause financial loss to the
Government under CHAMPUS or to CHAMPUS beneficiaries. For the definition
of abuse, see Sec. 199.2 of this part. The type of abuse to which
CHAMPUS is most vulnerable is the CHAMPUS claim involving the
overutilization of medical and health care services. To avoid abuse
situations, providers have certain obligations to provide services and
supplies under CHAMPUS which are: Furnished at the appropriate level and
only when and to the extent medically necessary as determined under the
provisions of this part; of a quality that meets professionally
recognized standards of health care; and, supported by adequate medical
documentation as may reasonably be required under this part by the
Director, OCHAMPUS, or a designee, to evidence the medical necessity and
quality of services furnished, as well as the appropriateness of the
level of care. A provider's failure to comply with these obligations can
result in sanctions being imposed by the Director, OCHAMPUS, or a
designee, under this section. Even when administrative remedies are not
initiated under this section, abuse situations under CHAMPUS are a
sufficient basis for denying all or any part of CHAMPUS cost-sharing of
individual claims. The types of abuse or possible abuse situations under
CHAMPUS include, but are not limited, to the following:
[[Page 216]]
(1) A pattern of waiver of beneficiary (patient) cost-share or
deductible.
Note: In a case of a legitimate bad debt write-off of patient cost-
share or deductible, the provider's record should include documentation
as to what efforts were made to collect the debt, when the debt was
written off, why the debt was written off, and the amount of the debt
written off.
(2) Improper billing practices. Examples include, charging CHAMPUS
beneficiaries rates for services and supplies that are in excess of
those charges routinely charged by the provider to the general public,
commercial health insurance carriers, or other federal health benefit
entitlement programs for the same or similar services. (This includes
dual fee schedules--one for CHAMPUS beneficiaries and one for other
patients or third-party payers. This also includes billing other third-
party payers the same as CHAMPUS is billed but accepting less than the
billed amount as reimbursement. However, a formal discount arrangement
such as through a preferred provider organization, may not necessarily
constitute an improper billing practice.)
(3) A pattern of claims for services which are not medically
necessary or, if medically necessary, not to the extent rendered. For
example, a battery of diagnostic tests are given when, based on the
diagnosis, fewer tests were needed.
(4) Care of inferior quality. For example, consistently furnishing
medical or mental health services that do not meet accepted standards of
care.
(5) Failure to maintain adequate medical or financial records.
(6) Refusal to furnish or allow the Government (for example,
OCHAMPUS) or Government contractors access to records related to CHAMPUS
claims.
(7) Billing substantially in excess of customary or reasonable
charges unless it is determined by OCHAMPUS that the excess charges are
justified by unusual circumstances or medical complications requiring
additional time, effort, or expense in localities when it is accepted
medical practice to make an extra charge in such cases.
(8) Unauthorized use of the term ``Civilian Health and Medical
Program of the Uniformed Services (CHAMPUS)'' in private business. While
the use of the term ``CHAMPUS'' is not prohibited by federal statute,
misrepresentation or deception by use of the term ``CHAMPUS'' to imply
an official connection with the Government or to defraud CHAMPUS
beneficiaries may be a violation of federal statute. Regardless of
whether the actual use of the term ``CHAMPUS'' may be actionable under
federal statute, the unauthorized or deceptive use of the term
``CHAMPUS'' in private business will be considered abuse for purposes of
this Section.
(c) Fraud. For the definition of fraud, see Sec. 199.2 of this
part. Examples of situations which, for the purpose of this part, are
presumed to be fraud include, but are not limited to:
(1) Submitting CHAMPUS claims (including billings by providers when
the claim is submitted by the beneficiary) for services, supplies, or
equipment not furnished to, or used by, CHAMPUS beneficiaries. For
example, billing or claiming services when the provider was on call
(other than an authorized standby charge) and did not provide any
specific medical care to the beneficiary; providing services to an
ineligible person and billing or submitting a claim for the services in
the name of an eligible CHAMPUS beneficiary; billing or submitting a
CHAMPUS claim for an office visit for a missed appointment; or billing
or submitting a CHAMPUS claim for individual psychotherapy when a
medical visit was the only service provided.
(2) Billing or submitting a CHAMPUS claim for costs for noncovered
or nonchargeable services, supplies, or equipment disguised as covered
items. Some examples are: (i) Billings or CHAMPUS claims for services
which would be covered except for the frequency or duration of the
services, such as billing or submitting a claim for two one-hour
psychotherapy sessions furnished on separate days when the actual
service furnished was a two-hour therapy session on a single day, (ii)
spreading the billing or claims for services over a time period that
reduces the apparent frequency to a level that may be cost-shared by
CHAMPUS, (iii) charging to CHAMPUS, directly or indirectly, costs
[[Page 217]]
not incurred or not reasonably allowable to the services billed or
claimed under CHAMPUS, for example, costs attributable to nonprogram
activities, other enterprises, or the personal expenses of principals,
or (iv) billing or submitting claim on a fee-for-service basis when in
fact a personal service to a specific patient was not performed and the
service rendered is part of the overall management of, for example, the
laboratory or x-ray department.
(3) Breach of a provider participation agreement which results in
the beneficiary (including parent, guardian, or other representative)
being billed for amounts which exceed the CHAMPUS-determined allowable
charge or cost.
(4) Billings or CHAMPUS claims for supplies or equipment which are
clearly unsuitable for the patient's needs or are so lacking in quality
or sufficiency for the purpose as to be virtually worthless.
(5) Billings or CHAMPUS claims which involve flagrant and persistent
overutilization of services without proper regard for results, the
patient's ailments, condition, medical needs, or the physician's orders.
(6) Misrepresentations of dates, frequency, duration, or description
of services rendered, or of the identity of the recipient of the
services or the individual who rendered the services.
(7) Submitting falsified or altered CHAMPUS claims or medical or
mental health patient records which misrepresent the type, frequency, or
duration of services or supplies or misrepresent the name(s) of the
individual(s) who provided the services or supplies.
(8) Duplicate billings or CHAMPUS claims. This includes billing or
submitting CHAMPUS claims more than once for the same services, billing
or submitting claims both to CHAMPUS and the beneficiary for the same
services, or billing or submitting claims both to CHAMPUS and other
third-parties (such as other health insurance or government agencies)
for the same services, without making full disclosure of material facts
or immediate, voluntary repayment or notification to CHAMPUS upon
receipt of payments which combined exceed the CHAMPUS-determined
allowable charge of the services involved.
(9) Misrepresentation by a provider of his or her credentials or
concealing information or business practices which bear on the
provider's qualifications for authorized CHAMPUS provider status. For
example, a provider representing that he or she has a qualifying
doctorate in clinical psychology when the degree is not from a
regionally accredited university.
(10) Reciprocal billing. Billing or claiming services which were
furnished by another provider or furnished by the billing provider in a
capacity other than as billed or claimed. For example, practices such as
the following: (i) One provider performing services for another provider
and the latter bills as though he had actually performed the services
(e.g., a weekend fill-in); (ii) providing service as an institutional
employee and billing as a professional provider for the services; (iii)
billing for professional services when the services were provided by
another individual who was an institutional employee; (iv) billing for
professional services at a higher provider profile than would be paid
for the person actually furnishing the services, (for example, bills
reflecting that an M.D. or Ph.D. performed the services when services
were actually furnished by a licensed social worker, psychiatric nurse,
or marriage and family counselor); or (v) an authorized provider billing
for services which were actually furnished by an unauthorized or
sanctioned provider.
(11) Submitting CHAMPUS claims at a rate higher than a rate
established between CHAMPUS and the provider, if such a rate has been
established. For example, billing or claiming a rate in excess of the
provider's most favored rate limitation specified in a residential
treatment center agreement.
(12) Arrangements by providers with employees, independent
contractors, suppliers, or others which appear to be designed primarily
to overcharge the CHAMPUS through various means (such as commissions,
fee-splitting, and kickbacks) used to divert or conceal improper or
unnecessary costs or profits.
(13) Agreements or arrangements between the supplier and recipient
(recipient could be either a provider or
[[Page 218]]
beneficiary, including the parent, guardian, or other representative of
the beneficiary) that result in billings or claims which include
unnecessary costs or charges to CHAMPUS.
(d) Conflict of Interest. (1) Conflict of interest includes any
situation where an active duty member of the Uniformed Services
(including a reserve member while on active duty, active duty for
training, or inactive duty training) or civilian employee of the United
States Government, through an official federal position has the apparent
or actual opportunity to exert, directly or indirectly, any influence on
the referral of CHAMPUS beneficiaries to himself/herself or others with
some potential for personal gain or the appearance of impropriety.
Although individuals under contract to the Uniformed Services are not
considered ``employees,'' such individuals are subject to conflict of
interest provisions by express terms of their contracts and, for
purposes of this part, may be considered to be involved in conflict of
interest situations as a result of their contract positions. In any
situation involving potential conflict of interest of a Uniformed
Service employee, the Director, OCHAMPUS, or a designee, may refer the
case to the Uniformed Service concerned for appropriate review and
action. If such a referral is made, a report of the results of findings
and action taken shall be made to the Director, OCHAMPUS, by the
Uniformed Service having jurisdiction within 90 days of receiving the
referral.
(2) CHAMPUS cost-sharing shall be denied on any claim where a
conflict of interest situation is found to exist. This denial of cost-
sharing applies whether the claim is submitted by the individual who
provided the care, the institutional provider in which the care was
furnished, or the beneficiary.
(e) Dual Compensation. (1) Federal law (5 U.S.C. 5536) prohibits
active duty members of the Uniformed Services or employees (including
part-time or intermittent) appointed in the civil service of the United
States Government from receiving additional compensation from the
Government above their normal pay and allowances. This prohibition
applies to CHAMPUS payments for care furnished to CHAMPUS beneficiaries
by active duty members of the Uniformed Services or civilian employees
of the Government.
(2) CHAMPUS cost-sharing of a claim shall be denied where the
services or supplies were provided by an active duty member of the
Uniformed Services or a civilian employee of the Government. This denial
of CHAMPUS payment applies whether the claim for reimbursement is filed
by the individual who provided the care, the institutional provider in
which the care was furnished, or by the beneficiary.
Note: Physicians of the National Health Service Corps (NHSC) may be
assigned to areas where there is a shortage of medical providers.
Although these physicians would be prohibited from accepting CHAMPUS
payments as individuals if they are employees of the United States
Government, the private organizations to which they may be assigned may
be eligible for payment, as determined by the Director, OCHAMPUS, or a
designee.
(3) The prohibition against dual compensation does not apply to
individuals under contract to the Uniformed Services or the Government.
(f) Administrative Remedies. Administrative remedies available under
CHAMPUS in this section are set forth below.
(1) Provider exclusion or suspension. The Director, OCHAMPUS, or a
designee, shall have the authority to exclude or suspend an otherwise
authorized CHAMPUS provider from the program based on any criminal
conviction or civil judgment involving fraud by the provider; fraud or
abuse under CHAMPUS by the provider; exclusion or suspension of the
provider by another agency of the Federal Government, a state, or local
licensing authority; participation in a conflict of interest situation
by the provider; or, when it is in the best interests of the program or
CHAMPUS beneficiaries to exclude or suspend a provider under CHAMPUS. In
all cases, the exclusion or suspension of a provider shall be effective
15 calendar days from the date on the written initial determination
issued under paragraph (h)(2) of this section.
(i) Criminal conviction or civil judgment involving fraud by a
provider--(A) Criminal conviction involving CHAMPUS
[[Page 219]]
fraud. A provider convicted by a Federal, state, foreign, or other court
of competent jurisdiction of a crime involving CHAMPUS fraud, whether
the crime is a felony or misdemeanor, shall be excluded or suspended
from CHAMPUS for a period of time as determined by the Director,
OCHAMPUS, or a designee. The CHAMPUS exclusion or suspension applies
whether or not the provider, as a result of the conviction, receives
probation or the sentence is suspended or deferred, and whether or not
the conviction or sentence is under appeal.
Note: Under the above paragraph (f)(1)(i)(A) of this section, an
entity may be excluded or suspended from CHAMPUS whenever the entity is
found to have a person, convicted of a crime involving CHAMPUS fraud,
who has a direct or indirect ownership or control interest (see Sec.
199.2) of 5 percent or more in the entity, or is an officer, director,
agent or managing employee of the entity. The entity will have an
opportunity to provide evidence to show that the ownership or control
relationship has ceased. While an entity will not be excluded or
suspended from CHAMPUS for employing a provider who has been sanctioned
under this Section, the entity will be denied CHAMPUS payment for any
services furnished by the sanctioned employee. As an authorized CHAMPUS
provider, the entity is responsible for ensuring that all CHAMPUS claims
involve services furnished to CHAMPUS beneficiaries by employees who
meet all requirements under CHAMPUS for provider status.
(B) Criminal conviction involving fraud of other Federal programs.
Any provider convicted by a Federal, state, or other court of competent
jurisdiction of a crime involving another Federal health care or benefit
program (such as plans administered under titles XVIII and XIX of the
Social Security Act, Federal Workmen's Compensation, and the Federal
Employees Program (FEP) for employee health insurance), whether the
crime is a felony or misdemeanor, shall be excluded from CHAMPUS for a
period of time as determined by the Director, OCHAMPUS, or a designee.
The CHAMPUS exclusion or suspension applies whether or not the provider,
as a result of the conviction, receives probation or the sentence is
suspended or deferred, and whether or not the conviction or sentence is
under appeal.
(C) Criminal conviction involving fraud of non-Federal programs. Any
provider convicted by a Federal, state, foreign, or other court of
competent jurisdiction of a crime involving any non-Federal health
benefit program or private insurance involving health benefits may be
excluded or suspended from CHAMPUS for a period of time as determined by
the Director, OCHAMPUS, or a designee.
(D) Civil fraud involving CHAMPUS. If a judgment involving civil
fraud has been entered (whether or not it is appealed) against a
provider in a civil action involving CHAMPUS benefits (whether or not
other Federal programs are involved), the provider shall be excluded or
suspended from CHAMPUS for a period determined by the Director,
OCHAMPUS, or a designee.
(E) Civil fraud involving other programs. If a judgment involving
civil fraud has been entered against a provider (whether or not it has
been appealed) in a civil action involving other public or private
health care programs or health insurance, the provider may be excluded
or suspended for a period of time determined by the Director, OCHAMPUS,
or a designee.
(ii) Administrative determination of fraud or abuse under CHAMPUS.
If the Director, OCHAMPUS, or a designee, determines that a provider has
committed fraud or abuse as defined in this part, the provider shall be
excluded or suspended from CHAMPUS for a period of time determined by
the Director, OCHAMPUS, or designee.
(iii) Administrative determination that the provider has been
excluded or suspended by another agency of the Federal Government, a
state, or local licensing authority. Any provider who is excluded or
suspended by any other Federal health care program (for example,
Medicare), shall be excluded or suspended under CHAMPUS. A provider who
has his/her credentials revoked through a Veterans Administration or
Military Department credentials review process and who is excluded,
suspended, terminated, retired, or separated, shall also be excluded or
suspended under CHAMPUS. The period of time of exclusion or suspension
shall be determined by the Director,
[[Page 220]]
OCHAMPUS, or a designee, pursuant to paragraph (g) of this section.
(iv) Administrative determination that the provider has participated
in a conflict of interest situation. The Director, OCHAMPUS, or a
designee, may exclude or suspend any provider who has knowingly been
involved in a conflict of interest situation under CHAMPUS. The period
of time of exclusion or suspension shall be determined by the Director,
OCHAMPUS, or a designee, pursuant to paragraph (g) of this section. For
purposes of this administrative determination, it will be presumed that
a CHAMPUS provider knowingly participated in a conflict of interest
situation if the provider employs, in the treatment of a CHAMPUS
beneficiary (resulting in a CHAMPUS claim), any medical personnel who
are active duty members of the Uniformed Services or civilian employees
of the Government. The burden of proof to rebut this presumption rests
with the CHAMPUS provider. Two exceptions will be recognized to the
presumption that a conflict of interest exists. First, indirect CHAMPUS
payments may be made to private organizations to which physicians of the
National Health Service Corps (NHSC) are assigned. Second, any off-duty
Government medical personnel employed in an emergency room of an acute
care hospital will be presumed not to have had the opportunity to exert,
directly or indirectly, any influence on the referral of CHAMPUS
beneficiaries; therefore, CHAMPUS payments may be made to the employing
hospital provided the medical care was not furnished directly by the
off-duty Government medical personnel in violation of dual compensation
provisions.
(v) Administrative determination that it is in the best interests of
the CHAMPUS or CHAMPUS beneficiaries to exclude or suspend a provider--
(A) Unethical or improper practices or unprofessional conduct. (1) In
most instances, unethical or improper practices or unprofessional
conduct by a provider will be program abuse and subject the provider to
exclusion or suspension for abuse. However, in some cases such practices
and conduct may provide an independent basis for exclusion or suspension
of the provider by the Director, OCHAMPUS, or a designee.
(2) Such exclusions or suspensions may be based on findings or
recommendations of state licensure boards, boards of quality assurance,
other regulatory agencies, state medical societies, peer review
organizations, or other professional associations.
(B) In any other case in which the Director, OCHAMPUS (or designee),
determines that exclusion or suspension of a provider is in the best
interests of CHAMPUS or CHAMPUS beneficiaries. The Director, OCHAMPUS,
or a designee, may exclude or suspend any provider if it is determined
that the authorization of that particular provider under CHAMPUS poses
an unreasonable potential for fraud, abuse, or professional misconduct.
Any documented misconduct by the provider reflecting on the business or
professional competence or integrity of the provider may be considered.
Situations in which the Director, OCHAMPUS, or a designee, may take
administrative action under this Section to protect CHAMPUS or CHAMPUS
beneficiaries include, but are not limited to, a case in which it is
determined that a provider poses an unreasonable potential cost to the
Government to monitor the provider for fraud or abuse and to avoid the
issuance of erroneous payments; or that the provider poses an
unreasonable potential harm to the financial or health status of CHAMPUS
beneficiaries; or that the provider poses any other unreasonable threat
to the interests of CHAMPUS or CHAMPUS beneficiaries. One example of
such circumstances involves a provider who, for his/her entire practice
or for most of his/her practice, provides or bills for treatment that is
not a CHAMPUS benefit, resulting in CHAMPUS frequently and repeatedly
denying claims as non-covered services. This may occur when a
professional provider furnishes sex therapy (a therapy which may be
recognized by the provider's licensing authority but which is excluded
from CHAMPUS coverage) and repeatedly submits CHAMPUS claims for the
services.
[[Page 221]]
(2) Provider termination. The Director, OCHAMPUS, or a designee,
shall terminate the provider status of any provider determined not to
meet the qualifications established by this part to be an authorized
CHAMPUS provider.
(i) Effective date of termination. Except as provided in paragraph
(g)(2)(ii) of this section, the termination shall be retroactive to the
date on which the provider did not meet the requirements of this part.
(A) The retroactive effective date of termination shall not be
limited due to the passage of time, erroneous payment of claims, or any
other events which may be cited as a basis for CHAMPUS recognition of
the provider notwithstanding the fact that the provider does not meet
program qualifications. Unless specific provision is made in this part
to ``grandfather'' or authorize a provider who does not otherwise meet
the qualifications established by this part, all unqualified providers
shall be terminated.
(B) Any claims cost-shared or paid under CHAMPUS for services or
supplies furnished by the provider on or after the effective date of
termination, even when the effective date is retroactive, shall be
deemed an erroneous payment unless specific exception is provided in
this part. All erroneous payments are subject to collection under Sec.
199.11 of this part.
(C) If an institution is terminated as an authorized CHAMPUS
provider, the institution shall immediately give written notice of the
termination to any CHAMPUS beneficiary (or their parent, guardian, or
other representative) admitted to, or receiving care at, the institution
on or after the effective date of the termination. In addition, when an
institution is terminated with an effective date of termination after
the date of the initial determination terminating the provider, any
beneficiary admitted to the institution prior to the effective date of
termination (or their parent, guardian, or other representative) shall
be notified by the Director, OCHAMPUS, or a designee, by certified mail
of the termination, and that CHAMPUS cost-sharing of the beneficiary's
care in the institution will cease as of the effective date of the
termination. However, any beneficiary admitted to the institution prior
to any grace period extended to the institution under paragraph
(f)(2)(ii)(A) of this section shall be advised that, if the
beneficiary's care otherwise qualifies for CHAMPUS coverage, CHAMPUS
cost-sharing of the care in the institution will continue in order to
provide a reasonable period of transition of care; however the
transitional period of CHAMPUS cost-sharing shall not exceed the last
day of the month following the month in which the institution's status
as a CHAMPUS provider is terminated. (This authorized CHAMPUS cost-
sharing of the inpatient care received during the transition period is
an exception to the general rule that CHAMPUS payment for care furnished
after the effective date of termination of the provider's status shall
be deemed to be an erroneous payment.) If a major violation under
paragraph (f)(2)(ii)(B) of this section is involved, in order to ensure
immediate action is taken to transfer beneficiaries to an approved
provider, CHAMPUS cost-sharing shall not be authorized after the
effective date of termination of the provider's status.
(ii) Institutions not in compliance with CHAMPUS standards. If it is
determined that an institution is not in compliance with one or more of
the standards applicable to its specific category of institution under
this part, the Director, OCHAMPUS, or a designee, shall take immediate
steps to bring about compliance or terminate the status of the provider
as an authorized CHAMPUS provider.
(A) Minor violations. An institution determined to be in violation
of one or more of the standards shall be advised by certified mail of
the nature of the discrepancy or discrepancies and will be given a grace
period of 30 days to effect appropriate corrections. The grace period
may be extended at the discretion of the Director, OCHAMPUS, or a
designee, but in no event shall the extension exceed 90 days.
(1) CHAMPUS will not cost-share a claim for any beneficiary admitted
during the grace period.
(2) Any beneficiary admitted to the institution prior to the grace
period (or the beneficiary's parent, guardian, or other representative)
will be notified
[[Page 222]]
by the Director, OCHAMPUS, or a designee, in writing, of the minor
violations and the grace period granted the institution to correct the
violations. The beneficiary will also be advised that, if the
beneficiary's care otherwise meets all requirements for CHAMPUS
coverage, CHAMPUS cost-sharing will continue during the grace period.
(3) If the institution submits written notice before the end of the
grace period that corrective action has been taken and if the Director,
OCHAMPUS, or a designee, determines that the corrective action has
eliminated the minor violations, the provider will be advised that the
institution is restored to full status as an authorized CHAMPUS provider
as of 12:01 a.m. on the day written notice of correction was received by
the Director, OCHAMPUS, or a designee, or the day on which acceptable
corrective action was completed in the judgment of the Director,
OCHAMPUS, or a designee. Any beneficiary admitted to the institution
prior to the grace period will be notified by the Director, OCHAMPUS, or
a designee, of the corrective action and that the provider continues to
be an authorized CHAMPUS provider. CHAMPUS cost-sharing for any
beneficiary admitted to the institution during the grace period shall be
allowed only for care received after 12:01 a.m. on the day written
notice of correction was received by the Director, OCHAMPUS, or a
designee, or the day on which acceptable corrective action was completed
in the judgment of the Director, OCHAMPUS, or a designee.
(4) If the institution has failed to give notification in writing
before the end of the grace period that corrective action has been
completed or, in the judgment of the Director, OCHAMPUS, or a designee,
the institution has not completed acceptable corrective action during
the grace period, the Director, OCHAMPUS, or a designee, may initiate
action to terminate the provider as an authorized CHAMPUS provider.
(B) Major violations. If the Director, OCHAMPUS, or a designee,
determines that an institution is in violation of standards detrimental
to life, safety, or health, or substantially in violation of approved
treatment programs, immediate action shall be taken to terminate the
institution as an authorized CHAMPUS provider. The institution shall be
notified by telegram, certified mail, or express mail of the termination
under this subparagraph, effective on receipt of the notice. The notice
shall include a brief statement of the nature of violations resulting in
the termination and advise the institution that an initial determination
formalizing the administrative action of termination will be issued
pursuant to paragraph (h)(3)(ii) of this section within 15 days.
(3) Beneficiary sanctions. (i) With entitlement to CHAMPUS benefits
based on public law, an eligible beneficiary will not be suspended or
excluded from CHAMPUS. However, the Director, OCHAMPUS, or a designee,
may take action deemed appropriate and reasonable to protect the
Government from those beneficiaries (including sponsors, parents,
guardians, or representatives of beneficiaries) who have submitted false
claims.
(ii) Pursuant to Sec. 199.11 of this part, the Director, OCHAMPUS,
or a designee, may recover erroneous payments on claims involving fraud
or false or misleading statements. Remedies for recovery of the
erroneous payments include the use of offset against future CHAMPUS
payments.
(iii) Under policies adopted by the Director, OCHAMPUS, or a
designee, individuals who, based on reliable information, have
previously submitted fraudulent or false CHAMPUS claims, may be required
to comply with any procedures (e.g., partial or total pre-payment audit
or review, restriction to a designated primary care provider, etc.)
which the Director, OCHAMPUS, or a designee, deems appropriate to ensure
that their future medical care and CHAMPUS claims (including the medical
care and CHAMPUS claims submitted by or for members of their family) are
valid.
(g) Period of exclusion, suspension, or termination--(1) Exclusions
or suspensions. Except as otherwise required by paragraph (g)(1)(i) of
this section, the Director, OCHAMPUS, or a designee, shall determine the
period of exclusion or suspension for a provider using the factors set
forth in paragraph (g)(1)(ii) of this section.
[[Page 223]]
(i) Exclusion or suspension of a provider based on the provider's
exclusion or suspension by another agency of the Federal Government, a
state, or a local licensing authority. If the administrative action
under CHAMPUS is based solely on the provider's exclusion or suspension
by another agency, state, or local licensing authority, the period of
exclusion or suspension under CHAMPUS shall be for the same length of
time of exclusion or suspension imposed by the other agency, state, or
local licensing authority. The provider may request reinstatement as an
authorized CHAMPUS provider if reinstatement is achieved under the other
program prior to the end of the period of exclusion or suspension. If
the administrative action under CHAMPUS is not based solely on the
provider's exclusion or suspension by another agency, state, or local
licensing authority, the minimum period of exclusion or suspension shall
be for the same period of exclusion or suspension imposed by the other
agency, state, or local licensing authority.
(ii) Factors to be considered in determining the period of exclusion
or suspension of providers under CHAMPUS. In determining the period of
exclusion or suspension of a provider, the Director, OCHAMPUS, or a
designee, may consider any or all of the following:
(A) When the case concerns all or any part of the same issues which
have been the subject of criminal conviction or civil judgment involving
fraud by a provider:
(1) The period(s) of sentence, probation, and other sanction imposed
by court order against the provider may be presumed reasonable and
adopted as the administrative period of exclusion or suspension under
CHAMPUS, unless aggravating or mitigating factors exist.
(2) If any aggravating factors exist, then cause exists for the
Director, OCHAMPUS, or a designee, to consider the factors set forth in
paragraph (g)(1)(ii)(B) of this section, in imposing a period of
administrative exclusion or suspension in excess of the period(s) of
sentence, probation, and/or other sanctions imposed by court order.
Examples of aggravating factors include, but are not limited to:
(i) An administrative determination by the Director, OCHAMPUS, or a
designee, that the basis for administrative exclusion or suspension
includes an act(s) of fraud or abuse under CHAMPUS in addition to, or
unrelated to, an act(s) of fraud included in the court conviction or
civil judgment.
(ii) The fraudulent act(s) involved in the criminal conviction or
civil judgment, or similar acts, were committed over a significant
period of time; that is, one year or more.
(iii) The act(s) of fraud or abuse had an adverse physical, mental,
or financial impact on one or more CHAMPUS beneficiaries.
(iv) The loss or potential loss to CHAMPUS is over $5,000. The
entire amount of loss or potential loss to CHAMPUS due to acts of fraud
and abuse will be considered, in addition to the amount of loss involved
in the court conviction or civil judgment, regardless of whether full or
partial restitution has been made to CHAMPUS.
(v) The provider has a prior court record, criminal or civil, or
administrative record or finding of fraud or abuse.
(3) If any mitigating factors exist, then cause may exist for the
Director, OCHAMPUS, or a designee, to reduce a period of administrative
exclusion or suspension from any period(s) imposed by court conviction
or civil judgment. Only the existence of either of the following two
factors may be considered in mitigation:
(i) The criminal conviction or civil judgment only involved three or
fewer misdemeanor offenses, and the total of the estimated losses
incurred (including any loss from act(s) not involved in the conviction
or judgment) is less than $1,000, regardless of whether full or partial
restitution has been made.
(ii) The criminal or civil court proceedings establish that the
provider had a mental, emotional or physical condition, prior to or
contemporaneous with the commission of the act(s), that reduced the
provider's criminal or civil culpability.
(B) The Director, OCHAMPUS, or a designee, may consider the
following factors in determining a reasonable period of exclusion or
suspension of a provider under CHAMPUS:
[[Page 224]]
(1) The nature of the claims and the circumstances under which they
were presented;
(2) The degree of culpability;
(3) History of prior offenses (including whether claims were
submitted while the provider was either excluded or suspended pursuant
to prior administrative action);
(4) Number of claims involved;
(5) Dollar amount of claims involved;
(6) Whether, if a crime was involved, it was a felony or
misdemeanor;
(7) If patients were injured financially, mentally, or physically;
the number of patients; and the seriousness of the injury(ies);
(8) The previous record of the provider under CHAMPUS;
(9) Whether restitution has been made or arrangements for repayment
accepted by the Government;
(10) Whether the provider has resolved the conflict of interest
situations or implemented procedures acceptable to the Director,
OCHAMPUS, or a designee, which will prevent conflict of interest in the
future; and,
(11) Such other factors as may be deemed appropriate.
(2) Terminations. When a provider's status as an authorized CHAMPUS
provider is ended, other than through exclusion or suspension, the
termination is based on a finding that the provider does not meet the
qualifications to be an authorized provider, as set forth in this part.
Therefore, the period of termination in all cases will be indefinite and
will end only after the provider has successfully met the established
qualifications for authorized provider status under CHAMPUS and has been
reinstated under CHAMPUS. Except as otherwise provided in this
subparagraph, the following guidelines control the termination of
authorized CHAMPUS provider status for a provider whose license to
practice (or, in the case of an institutional provider, to operate) has
been temporarily or permanently suspended or revoked by the jurisdiction
issuing the license.
(i) Termination of the provider under CHAMPUS shall continue even if
the provider obtains a license to practice in a second jurisdiction
during the period of suspension or revocation of the provider's license
by the original licensing jurisdiction. A provider who has licenses to
practice in two or more jurisdictions and has one or more license(s)
suspended or revoked will also be terminated as a CHAMPUS provider.
(A) Professional providers shall remain terminated from the CHAMPUS
until the jurisdiction(s) suspending or revoking the provider's
license(s) to practice restores it or removes the impediment to
restoration.
(B) Institutional providers shall remain terminated under CHAMPUS
until their license is restored. In the event the facility is sold,
transferred, or reorganized as a new legal entity, and a license issued
under a new name or to a different legal entity, the new entity must
submit an application to be an authorized CHAMPUS provider.
(ii) If the CHAMPUS provider status is terminated due to the loss of
the provider's license, the effective date shall be retroactive to the
date the provider lost the license; however, in the case of a
professional provider who has licenses in two or more jurisdictions and
submitted claims from a jurisdiction from which he/she had a valid
license, the effective date of the termination will be 15 calendar days
from the date of the written initial determination of termination for
purposes of claims from the jurisdiction in which the provider still has
a valid license.
(h) Procedures for initiating and implementing the administrative
remedies--(1) Temporary suspension of claims processing. (i) In general,
temporary suspension of claims processing may be invoked to protect the
interests of the Government for a period reasonably necessary to
complete investigation or appropriate criminal, civil, and
administrative proceedings. The temporary suspension only delays the
ultimate payment of otherwise appropriate claims. When claims processing
involving a participating provider is temporarily suspended, the
participation agreement remains in full force and the provider cannot
repudiate the agreement because of the delay in the final disposition of
the claim(s). Once it has been determined appropriate to end the
temporary suspension of claims processing, CHAMPUS claims which were the
subject of the suspension and
[[Page 225]]
which are otherwise determined to be in compliance with the requirements
of law and regulation, will be processed to completion and payment
unless such action is deemed inappropriate as a result of criminal,
civil, or administrative remedies ultimately invoked in the case.
(ii) When adequate evidence exists to determine that a provider or
beneficiary is submitting fraudulent or false claims or claims involving
practices that may be fraud or abuse as defined by this part, the
Director, OCHAMPUS, or a designee, may suspend CHAMPUS claims processing
(in whole or in part) for claims submitted by the beneficiary or any
CHAMPUS claims involving care furnished by the provider. The temporary
suspension of claims processing for care furnished by a provider may be
invoked against all such claims, whether or not the claims are submitted
by the beneficiary or by the provider as a participating CHAMPUS
provider. In cases involving a provider, notice of the suspension of
claims processing may also be given to the beneficiary community either
directly or indirectly through notice to appropriate military
facilities, health benefit advisors, and the information or news media.
(A) Adequate evidence is any information sufficient to support the
reasonable belief that a particular act or omission has occurred.
(B) Indictment or any other initiation of criminal charges, filing
of a complaint for civil fraud, issuance of an administrative complaint
under the Program Fraud Civil Remedies Act, or issuance of an initial
determination under this part for submitting fraudulent or false claims
or claims involving practices that may be fraud or abuse as defined by
this part, shall constitute adequate evidence for invoking temporary
suspension of claims processing.
(iii) The Director, OCHAMPUS, or a designee, may suspend CHAMPUS
claims processing without first notifying the provider or beneficiary of
the intent to suspend payments. Following a decision to invoke a
temporary suspension, however, the Director, OCHAMPUS, or a designee,
shall issue written notice advising the provider or beneficiary that:
(A) A temporary suspension of claims processing has been ordered and
a statement of the basis of the decision to suspend payment. Unless the
suspension is based on any of the actions set forth in paragraph
(h)(1)(ii)(B) of this section, the notice shall describe the suspected
acts or omissions in terms sufficient to place the provider or
beneficiary on notice without disclosing the Government's evidence.
(B) Within 30 days (or, upon written request received by OCHAMPUS
during the 30 days and for good cause shown, within 60 days) from the
date of the notice, the provider or beneficiary may:
(1) Submit to the Director, OCHAMPUS, or a designee, in writing,
information (including documentary evidence) and argument in opposition
to the suspension, provided the additional specific information raises a
genuine dispute over the material facts, or
(2) Submit a written request to present in person evidence or
argument to the Director, OCHAMPUS, or a designee. All such
presentations shall be made at the Office of Civilian Health and Medical
Program of the Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the
provider's or beneficiary's own expense.
(C) Additional proceedings to determine disputed material facts may
be conducted unless:
(1) The suspension is based on any of the actions set forth in
paragraph (h)(1)(ii)(B) of this section, or,
(2) A determination is made, on the basis of the advice of the
responsible Government official (e.g., an official of the Department of
Justice, the designated Reviewing Official under the Program Fraud Civil
Remedies Act, etc.), that the substantial interests of the Government in
pending or contemplated legal or administrative proceedings based on the
same facts as the suspension would be prejudiced.
(iv) If the beneficiary or provider submits, either in writing or in
person, additional information or argument in opposition to the
suspension, the Director, OCHAMPUS, or a designee, shall issue a
suspending official's decision which modifies, terminates, or leaves in
force the suspension of claims
[[Page 226]]
processing. However, a decision to terminate or modify the suspension
shall be without prejudice to the subsequent imposition of suspension of
claims processing, imposition of sanctions under this Sec. 199.9, the
recovery of erroneous payments under Sec. 199.11 of this part, or any
other administrative or legal action authorized by law or regulation.
The suspending official's decision shall be in writing as follows:
(A) A written decision based on all the information in the
administrative record, including any submission by the beneficiary or
provider, shall be final in a case:
(1) Based on any of the actions set forth in paragraph (h)(1)(ii)(B)
of this section,
(2) In which the beneficiary's or provider's submission does not
raise a genuine dispute over material facts, or
(3) In which additional proceedings to determine disputed material
facts have been denied on the basis of advice of a responsible
Government official that the substantial interests of the Government in
pending or contemplated legal or administrative proceedings would be
prejudiced.
(B) In a case in which additional proceedings are necessary as to
disputed material facts, the suspending official's decision shall advise
the beneficiary or provider that the case has been referred for handling
as a hearing under Sec. 199.10 of this part.
(v) A suspension of claims processing may be modified or terminated
for reasons such as:
(A) Newly discovered evidence;
(B) Elimination of any of the causes for which the suspension was
invoked; or
(C) Other reasons the Director, OCHAMPUS, or a designee, deems
appropriate.
(vi) A suspension of claims processing shall be for a temporary
period pending the completion of investigation and any ensuing legal or
administrative proceedings, unless sooner terminated by the Director,
OCHAMPUS, or a designee, or as provided in this subparagraph.
(A) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless the Government official responsible for initiation
of the legal or administrative action requests its extension, in which
case it may be extended for an additional 6 months. In no event may a
suspension extend beyond 18 months, unless legal or administrative
proceedings have been initiated during that period.
(B) The Director, OCHAMPUS, or a designee, shall notify the
Government official responsible for initiation of the legal or
administrative action of the proposed termination of the suspension, at
least 30 days before the 12-month period expires, to give the official
an opportunity to request an extension.
(2) Notice of proposed administrative sanction. (i) A provider shall
be notified in writing of the proposed action to exclude, suspend, or
terminate the provider's status as an authorized CHAMPUS provider.
(A) The notice shall state which sanction will be taken and the
effective date of that sanction as determined in accordance with the
provisions of this part.
(B) The notice shall inform the provider of the situation(s),
circumstance(s), or action(s) which form the basis for the proposed
sanction and reference the paragraph of this part under which the
administrative action is being taken.
(C) The notice will be sent to the provider's last known business or
office address (or home address if there is no known business address.)
(D) The notice shall offer the provider an opportunity to respond
within 30 days (or, upon written request received by OCHAMPUS during the
30 days and for good cause shown, within 60 days) from the date on the
notice with either:
(1) Documentary evidence and written argument contesting the
proposed action; or,
(2) A written request to present in person evidence or argument to
the Director, OCHAMPUS, or a designee. All such presentations shall be
made at the Office of the Civilian Health and Medical Program of the
Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the provider's own
expense.
[[Page 227]]
(3) Initial determination. (i) If, after the provider has exhausted,
or failed to comply with, the procedures specified in paragraph (h)(2)
of this section, the Director, OCHAMPUS, or a designee, decides to
invoke an administrative remedy of exclusion, suspension, or termination
of a provider under CHAMPUS, written notice of the decision will be sent
to the provider by certified mail. Except in those cases where the
sanction has a retroactive effective date, the written notice shall be
dated no later than 15 days before the decision becomes effective. For
terminations under paragraph (f)(2)(ii)(B) of this section, the initial
determination may be issued without first implementing or exhausting the
procedures specified in paragraph (h)(2) of this section.
(ii) The initial determination shall include:
(A) A statement of the sanction being invoked;
(B) A statement of the effective date of the sanction;
(C) A statement of the facts, circumstances, or actions which form
the basis for the sanction and a discussion of any information submitted
by the provider relevant to the sanction;
(D) A statement of the factors considered in determining the period
of sanction;
(E) The earliest date on which a request for reinstatement under
CHAMPUS will be accepted;
(F) The requirements and procedures for reinstatement; and,
(G) Notice of the available hearing upon request of the sanctioned
provider.
(4) Reinstatement procedures--(i) Restitution. (A) There is no
entitlement under CHAMPUS for payment (cost-sharing) of any claim that
involves either criminal or civil fraud as defined by law, or fraud or
abuse or conflict of interest as defined by this part. In addition,
except as specifically provided in this part, there is no entitlement
under CHAMPUS for payment (cost-sharing) of any claim for services or
supplies furnished by a provider who does not meet the requirements to
be an authorized CHAMPUS provider. In any of the situations described
above, CHAMPUS payment shall be denied whether the claim is submitted by
the provider as a participating claim or by the beneficiary for
reimbursement. If an erroneous payment has been issued in any such case,
collection of the payment will be processed under Sec. 199.11 of this
part.
(B) If the Government has made erroneous payments to a provider
because of claims involving fraud, abuse, or conflicts of interest,
restitution of the erroneous payments shall be made before a request for
reinstatement as a CHAMPUS authorized provider will be considered.
Without restitution or resolution of the debt under Sec. 199.11 of this
part, a provider shall not be reinstated as an authorized CHAMPUS
provider. This is not an appealable issue under Sec. 199.10 of this
part.
(C) For purposes of authorization as a CHAMPUS provider, a provider
who is excluded or suspended under this Sec. 199.9 and who submits
participating claims for services furnished on or after the effective
date of the exclusion or suspension is considered to have forfeited or
waived any right or entitlement to bill the beneficiary for the care
involved in the claims. Similarly, because a provider is expected to
know the CHAMPUS requirements for qualification as an authorized
provider, any participating provider who fails to meet the qualification
requirements for CHAMPUS is considered to have forfeited or waived any
right or entitlement to bill the beneficiary for the care involved in
the CHAMPUS claims. If, in either situation, the provider bills the
beneficiary, restitution to the beneficiary may be required by the
Director, OCHAMPUS, or a designee, as a condition for consideration of
reinstatement as a CHAMPUS authorized provider.
(ii) Terminated providers. A terminated provider who subsequently
achieves the minimum qualifications to be an authorized CHAMPUS provider
or who has had his/her license reinstated or the impediment to
reinstatement removed by the appropriate licensing jurisdiction may
submit a written request for reinstatement under CHAMPUS to the
Director, OCHAMPUS, or a designee. If restitution or proper
reinstatement of license is not at issue, the Director,
[[Page 228]]
OCHAMPUS, or a designee, will process the request for reinstatement
under the procedures established for initial requests for authorized
CHAMPUS provider status.
(iii) Providers (other than entities) excluded or suspended under
CHAMPUS. (A) A provider excluded or suspended from CHAMPUS (other than
an entity excluded under Sec. 199.9(f)(1)(i)) may seek reinstatement by
submitting a written request to the Director, OCHAMPUS, or a designee,
any time after the date specified in the notice of exclusion or
suspension or any earlier date specified in an appeal decision issued in
the provider's appeal under Sec. 199.10 of this part. The request for
reinstatement shall include:
(1) Documentation sufficient to establish the provider's
qualifications under this part to be a CHAMPUS authorized provider;
(2) A statement from the provider setting forth the reasons why the
provider should be reinstated, accompanied by written statements from
professional associates, peer review bodies, and/or probation officers
(if appropriate), attesting to their belief that the violations that led
to exclusion or suspension will not be repeated.
(B) A provider entity excluded from CHAMPUS under Sec.
199.9(f)(1)(i) may seek reinstatement by submitting a written request to
the Director, OCHAMPUS, or a designee, with documentation sufficient to
establish the provider's qualifications under this part to be a CHAMPUS
authorized provider and either:
(1) Documentation showing the CHAMPUS reinstatement of the excluded
individual provider whose conviction led to the CHAMPUS exclusion or
suspension of the provider entity; or
(2) Documentation acceptable to the Director, OCHAMPUS, or a
designee, that shows that the individual whose conviction led to the
entity's exclusion:
(i) Has reduced his or her ownership or control interest in the
entity below 5 percent; or
(ii) Is no longer an officer, director, agent or managing employee
of the entity; or
(iii) Continues to maintain a 5 percent or more ownership or control
interest in such entity, and that the entity due to circumstances beyond
its control, is unable to obtain a divestiture.
Note: Under paragraph (h)(4)(iii)(B)(2) of this section, the request
for reinstatement may be submitted any time prior to the date specified
in the notice of exclusion or suspension or an earlier date specified in
the appeal decision issued under Sec. 199.10 of this part.
(iv) Action on request for reinstatement. In order to reinstate a
provider as a CHAMPUS authorized provider, the Director, OCHAMPUS, or a
designee, must determine that:
(A) The provider meets all requirements under this part to be an
authorized CHAMPUS provider;
(B) No additional criminal, civil, or administrative action has been
taken or is being considered which could subject the provider to
exclusion, suspension, or termination under this section;
(C) In the case of a provider entity, verification has been made of
the divestiture or termination of the owner, controlling party, officer,
director, agent or managing employee whose conviction led to the
entity's exclusion, or that the provider entity should be reinstated
because the entity, due to circumstances beyond its control, cannot
obtain a divestiture of the 5 percent or more ownership or controlling
interest by the convicted party.
(v) Notice of action on request for reinstatement--(A) Notice of
approval of request. If the Director, OCHAMPUS, or a designee, approves
the request for reinstatement, he or she will:
(1) Give written notice to the sanctioned party specifying the date
when the authorized provider status under CHAMPUS may resume; and
(2) Give notice to those agencies and groups that were originally
notified, in accordance with Sec. 199.9(k), of the imposition of the
sanction. General notice may also be given to beneficiaries and other
parties as deemed appropriate by the Director, OCHAMPUS, or a designee.
(B) Notice of denial of request. If the Director, OCHAMPUS, or a
designee, does not approve the request for reinstatement, written notice
will be given to the provider. If established procedures for processing
initial requests for
[[Page 229]]
authorized provider status are used to review the request for
reinstatement, the established procedures may be used to provide the
notice that the provider does not meet requirements of this part for
such status. If the provider continues to be excluded, suspended, or
terminated under the provisions of this section, the procedures set
forth in this paragraph (h) may be followed in denying the provider's
request for reinstatement.
(5) Reversed or vacated convictions or civil judgments involving
CHAMPUS fraud. (i) If a CHAMPUS provider is excluded or suspended solely
on the basis of a criminal conviction or civil judgment involving a
CHAMPUS fraud and the conviction or judgment is reversed or vacated on
appeal, CHAMPUS will void the exclusion of a provider. Such action will
not preclude the initiation of additional independent administrative
action under this section or any other administrative remedy based on
the same facts or events which were the subject of the criminal
conviction or civil judgment.
(ii) If an exclusion is voided under paragraph (h)(5)(i) of this
section, CHAMPUS will make payment, either to the provider or the
beneficiary (if the claim was not a participating claim) for otherwise
authorized services under CHAMPUS that are furnished or performed during
the period of exclusion.
(iii) CHAMPUS will also void the exclusion of any entity that was
excluded under Sec. 199.9(f)(1)(i) based solely on an individual's
conviction that has been reversed or vacated on appeal.
(iv) When CHAMPUS voids the exclusion of a provider or an entity,
notice will be given to the agencies and others that were originally
notified, in accordance with Sec. 199.9(k).
(i) Evidence required for determinations to invoke administrative
remedies--(1) General. Any relevant evidence may be used by the
Director, OCHAMPUS, or a designee, if it is the type of evidence on
which reasonable persons are accustomed to rely in the conduct of
serious affairs, regardless of the existence of any common law or
statutory rule that might make improper the admission of such evidence
over objection in civil or criminal courts.
(2) Types of evidence. The types of evidence which the Director,
OCHAMPUS, or a designee, may rely on in reaching a determination to
invoke administrative remedies under this section include but are not
limited to the following:
(i) Results of audits conducted by or on behalf of the Government.
Such audits can include the results of 100 percent review of claims and
related records or a statistically valid sample audit of the claims or
records. A statistical sampling shall constitute prima facie evidence of
the number and amount of claims and the instances of fraud, abuse, or
conflict of interest.
(ii) Reports, including sanction reports, from various sources
including a peer review organization (PRO) for the area served by the
provider; state or local licensing or certification authorities; peer or
medical review consultants of the Government, including consultants for
Government contractors; state or local professional societies; or other
sources deemed appropriate by the Director, OCHAMPUS, or a designee.
(iii) Orders or documents issued by Federal, state, foreign, or
other courts of competent jurisdiction which issue findings and/or
criminal convictions or civil judgments involving the provider, and
administrative rulings, findings, or determinations by any agency of the
Federal Government, a state, or local licensing or certification
authority regarding the provider's status with that agency or authority.
(j) Suspending Administrative Action. (1) All or any administrative
action may be suspended by the Director, OCHAMPUS, or a designee,
pending action in the case by the Department of Defense--Inspector
General, Defense Criminal Investigative Service, or the Department of
Justice (including the responsible United States Attorney). However,
action by the Department of Defense--Inspector General or the Department
of Justice, including investigation, criminal prosecution, or civil
litigation, does not preclude administrative action by OCHAMPUS.
[[Page 230]]
(2) The normal OCHAMPUS procedure is to suspend action on the
administrative process pending an investigation by the Department of
Defense--Inspector General or final disposition by the Department of
Justice.
(3) Though OCHAMPUS administrative action is taken independently of
any action by the Department of Defense-Inspector General or by the
Department of Justice, once a case is forwarded to the Department of
Defense-Inspector General or the Department of Justice for legal action
(criminal or civil), administrative action may be held in abeyance.
(4) In some instances there may be dual jurisdiction between
agencies; as in, for example, the joint regulations issued by the
Department of Justice and the Government Accounting Office regarding
debt collection.
(k) Notice to Other Agencies. (1) When CHAMPUS excludes, suspends,
or terminates a provider, the Director, OCHAMPUS, or a designee, will
notify other appropriate agencies (for example, the Department of Health
and Human Services and the state licensing agency that issued the
provider's license to practice) that the individual has been excluded,
suspended, or terminated as an authorized provider under CHAMPUS. An
exclusion, suspension, or termination action is considered a public
record. Such notice can include the notices and determinations sent to
the suspended provider and other public documents such as testimony
given at a hearing or exhibits or depositions given in a lawsuit or
hearing. Notice may also be given to Uniformed Services Military
Treatment Facilities, Health Benefit Advisors, beneficiaries and
sponsors, the news media, and institutional providers if inpatient care
was involved.
(2) If CHAMPUS has temporarily suspended claims processing, notice
of such action normally will be given to the affected provider and
Uniformed Services Medical Treatment Facilities, Health Benefits
Advisors, beneficiaries, and sponsors. Notice may also be given to any
information or news media and any other individual, professional
provider, or institutional provider, as deemed appropriate. However,
since a ``temporary suspension of claims processing'' is by definition
not a final or formal agency action, the basis for the action generally
will not be disclosed. It is noted that the basis for the action can be
a result of questions arising from routine audits to investigation of
possible criminal violations.
(l) Compromise, Settlement, and Resolution Authority. (1) In lieu of
invoking any remedy provided by this Section, the Director, OCHAMPUS, or
a designee, may elect to enter into an agreement with the provider
intended to correct the situation within an established time period and
subject to any remedies deemed appropriate by the Director, OCHAMPUS, or
a designee.
(2) When it is in the best interest of CHAMPUS, the Director,
OCHAMPUS, has the discretionary authority to waive an action or enter
into compromise or settlement of administrative actions taken under this
Sec. 199.9.
(m) Government-wide effect of exclusion or suspension from CHAMPUS.
As provided by section 2455 of the Federal Acquisition Streamlining Act
of 1994, Pub. L. 103-355, October 13 1994, and Executive Order 12549,
``Debarment and Suspension from Federal Financial and Nonfinancial
Assistance Programs,'' February 18, 1986, any health care provider
excluded or suspended from CHAMPUS under this section shall, as a
general rule, also be debarred, suspended, or otherwise excluded from
all other programs and activities involving Federal financial
assistance. Among the other programs for which this debarment,
suspension, or exclusion shall operate are the Medicare and Medicaid
programs. This debarment, suspension, or termination requirement is
subject to limited exceptions in the regulations governing the
respective Federal programs affected. (Note: Other regulations related
to this government-wide exclusion or suspension authority are 32 CFR
Part 25 and 45 CFR Part 76.)
(n) Third-party billing agents as defined in Sec. 199.2(b) of this
part, while not considered providers, are subject to the provisions of
this section to the same extent as such provisions apply to providers.
[54 FR 25246, June 14, 1989, as amended at 63 FR 48445, Sept. 10, 1998;
78 FR 12954, Feb. 26, 2013]
[[Page 231]]
Sec. 199.10 Appeal and hearing procedures.
(a) General. This Section sets forth the policies and procedures for
appealing decisions made by OCHAMPUS, OCHAMPUSEUR, and CHAMPUS
contractors adversely affecting the rights and liabilities of CHAMPUS
beneficiaries, CHAMPUS participating providers, and providers denied the
status of authorized provider under CHAMPUS. An appeal under CHAMPUS is
an administrative review of program determinations made under the
provisions of law and regulation. An appeal cannot challenge the
propriety, equity, or legality of any provision of law or regulation.
(1) Initial determination--(i) Notice of initial determination and
right to appeal. (A) OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors
shall mail notices of initial determinations to the affected provider or
CHAMPUS beneficiary (or representative) at the last known address. For
beneficiaries who are under 18 years of age or who are incompetent, a
notice issued to the parent, guardian, or other representative, under
established CHAMPUS procedures, constitutes notice to the beneficiary.
(B) CHAMPUS contractors and OCHAMPUSEUR shall notify a provider of
an initial determination on a claim only if the provider participated in
the claim. (See Sec. 199.7 of this part.)
(C) CHAMPUS peer review organizations shall notify providers and
fiscal intermediaries of a denial determination on a claim.
(D) Notice of an initial determination on a claim processed by a
CHAMPUS contractor or OCHAMPUSEUR normally will be made on a CHAMPUS
Explanation of Benefits (CEOB) form.
(E) Each notice of an initial determination on a request for benefit
authorization, a request by a provider for approval as an authorized
CHAMPUS provider, or a decision to disqualify or exclude a provider as
an authorized provider under CHAMPUS shall state the reason for the
determination and the underlying facts supporting the determination.
(F) In any case when the initial determination is adverse to the
beneficiary or participating provider, or to the provider seeking
approval as an authorized CHAMPUS provider, the notice shall include a
statement of the beneficiary's or provider's right to appeal the
determination. The procedure for filing the appeal also shall be
explained.
(ii) Effect of initial determination. (A) The initial determination
is final unless appealed in accordance with this chapter, or unless the
initial determination is reopened by the TRICARE Management Activity,
the CHAMPUS contractor, or the CHAMPUS peer review organization.
(B) An initial determination involving a CHAMPUS beneficiary
entitled to Medicare Part A, who is enrolled in Medicare Part B, may be
appealed by the beneficiary or their provider under this section of this
Part only when the claimed services or supplies are payable by CHAMPUS
and are not payable under Medicare. Both Medicare and CHAMPUS offer an
appeal process when a claim for healthcare services or supplies is
denied and most healthcare services and supplies are a benefit payable
under both Medicare and CHAMPUS. In order to avoid confusion on the part
of beneficiaries and providers and to expedite the appeal process,
services and supplies denied payment by Medicare will not be considered
for coverage by CHAMPUS if the Medicare denial of payment is appealable
under Medicare. Because such claims are not considered for payment by
CHAMPUS, there can be no CHAMPUS appeal. If, however, a Medicare claim
or appeal results in some payment by Medicare, the services and supplies
paid by Medicare will be considered for payment by CHAMPUS. In that
situation, any decision to deny CHAMPUS payment will be appealable under
this section. The following examples of CHAMPUS appealable issues
involving Medicare-eligible CHAMPUS beneficiaries are illustrative; they
are not all-inclusive.
(1) If Medicare processes a claim for a healthcare service or supply
that is a Medicare benefit and the claim is denied by Medicare for a
patient-specific reason, the claim is appealable through the Medicare
appeal process. The Medicare decision will be final if the claim
[[Page 232]]
is denied by Medicare. The claimed services or supplies will not be
considered for CHAMPUS payment and there is no CHAMPUS appeal of the
CHAMPUS decision denying the claim.
(2) If Medicare processes a claim for a healthcare service or supply
that is a Medicare benefit and the claim is paid, either on initial
submission or as a result of a Medicare appeal decision, the claim will
be submitted to CHAMPUS for processing as a second payer to Medicare. If
CHAMPUS denies payment of the claim, the Medicare-eligible beneficiary
or their provider have the same appeal rights as other CHAMPUS
beneficiaries and their providers under this section.
(3) If Medicare processes a claim and the claim is denied by
Medicare because it is not a healthcare service or supply that is a
benefit under Medicare, the claim is submitted to CHAMPUS. CHAMPUS will
process the claim under this Part 199 as primary payer (or as secondary
payer if another double coverage plan exists). If any part of the claim
is denied, the Medicare-eligible beneficiary and their provider will
have the same appeal rights as other CHAMPUS beneficiaries and their
providers under this section.
(2) Participation in an appeal. Participation in an appeal is
limited to any party to the initial determination, including CHAMPUS,
and authorized representatives of the parties. Any party to the initial
determination, except CHAMPUS, may appeal an adverse determination. The
appealing party is the party who actually files the appeal.
(i) Parties to the initial determination. For purposes of the
CHAMPUS appeals and hearing procedures, the following are not parties to
an initial determination and are not entitled to administrative review
under this section.
(A) A provider disqualified or excluded as an authorized provider
under CHAMPUS based on a determination of abuse or fraudulent practices
or procedures under another Federal or federally funded program is not a
party to the CHAMPUS action and may not appeal under this section.
(B) A beneficiary who has an interest in receiving care or has
received care from a particular provider cannot be an appealing party
regarding the exclusion, suspension, or termination of the provider
under Sec. 199.9 of this part.
(C) A sponsor or parent of a beneficiary under 18 years of age or
guardian or an incompetent beneficiary is not a party to the initial
determination and may not serve as the appealing party, although such
persons may represent the appealing party in an appeal.
(D) A third party, such as an insurance company, is not a party to
the initial determination and is not entitled to appeal even though it
may have an indirect interest in the initial determination.
(E) A nonparticipating provider is not a party to the initial
determination and may not appeal.
(ii) Representative. Any party to the initial determination may
appoint a representative to act on behalf of the party in connection
with an appeal. Generally, the parent of a minor beneficiary and the
legally appointed guardian of an incompetent beneficiary shall be
presumed to have been appointed representative without specific
designation by the beneficiary. The custodial parent or legal guardian
(appointed by a cognizant court) of a minor beneficiary may initiate an
appeal based on the above presumption. However, should a minor
beneficiary turn 18 years of age during the course of an appeal, then
any further requests to appeal on behalf of the beneficiary must be from
the beneficiary or pursuant to the written authorization of the
beneficiary appointing a representative. For example, if the beneficiary
is 17 years of age and the sponsor (who is a custodial parent) requests
a formal review, absent written objection by the minor beneficiary, the
sponsor is presumed to be acting on behalf of the minor beneficiary.
Following the issuance of the formal review, the sponsor requests a
hearing; however if, at the time of the request for a hearing, the
beneficiary is 18 years of age or older, the request must either be by
the beneficiary or the beneficiary must appoint a representative. The
sponsor, in this example, could not pursue the request for hearing
without being appointed by the beneficiary as the beneficiary's
representative.
[[Page 233]]
(A) The representative shall have the same authority as the party to
the appeal and notice given to the representative shall constitute
notice required to be given to the party under this part.
(B) To avoid possible conflicts of interest, an officer or employee
of the United States, such as an employee or member of a Uniformed
Service, including an employee or staff member of a Uniformed Service
legal office, or a CHAMPUS advisor, subject to the exceptions in 18
U.S.C. 205, is not eligible to serve as a representative. An exception
usually is made for an employee or member of a Uniformed Service who
represents an immediate family member. In addition, the Director,
OCHAMPUS, or designee, may appoint an officer or employee of the United
States as the CHAMPUS representative at a hearing.
(3) Burden of proof. The burden of proof is on the appealing party
to establish affirmatively by substantial evidence the appealing party's
entitlement under law and this part to the authorization of CHAMPUS
benefits, approval of authorized CHAMPUS provider status, or removal of
sanctions imposed under Sec. 199.9 of this part. If a presumption
exists under the provisions of this part or information constitutes
prima facie evidence under the provisions of this part, the appealing
party must produce evidence reasonably sufficient to rebut the
presumption or prima facie evidence as part of the appealing party's
burden of proof. CHAMPUS shall not pay any part of the cost or fee,
including attorney fees, associated with producing or submitting
evidence in support of an appeal.
(4) Evidence in appeal and hearing cases. Any relevant evidence may
be used in the administrative appeal and hearing process if it is the
type of evidence on which reasonable persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of any
common law or statutory rule that might make improper the admission of
such evidence over objection in civil or criminal courts.
(5) Late filing. If a request for reconsideration, formal review, or
hearings is filed after the time permitted in this section, written
notice shall be issued denying the request. Late filing may be permitted
only if the appealing party reasonably can demonstrate to the
satisfaction of the Director, OCHAMPUS, or a designee, that the timely
filing of the request was not feasible due to extraordinary
circumstances over which the appealing party had no practical control.
Each request for an exception to the filing requirement will be
considered on its own merits. The decision of the Director, OCHAMPUS, or
a designee, on the request for an exception to the filing requirement
shall be final.
(6) Appealable issue. An appealable issue is required in order for
an adverse determination to be appealed under the provisions of this
section. Examples of issues that are not appealable under this section
include:
(i) A dispute regarding a requirement of the law or regulation.
(ii) The amount of the CHAMPUS-determined allowable cost or charge,
since the methodology for determining allowable costs or charges is
established by this part.
(iii) The establishment of diagnosis-related groups (DRGs), or the
methodology for the classification of inpatient discharges within the
DRGs, or the weighting factors that reflect the relative hospital
resources used with respect to discharges within each DRG, since each of
these is established by this part.
(iv) Certain other issues on the basis that the authority for the
initial determination is not vested in CHAMPUS. Such issues include but
are not limited to the following examples:
(A) Determination of a person's eligibility as a CHAMPUS beneficiary
is the responsibility of the appropriate Uniformed Service. Although
OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors must make determinations
concerning a beneficiary's eligibility in order to ensure proper
disbursement of appropriated funds on each CHAMPUS claim processed,
ultimate responsibility for resolving a beneficiary's eligibility rests
with the Uniformed Services. Accordingly, disputed question of fact
concerning a beneficiary's eligibility will not be considered an
appealable issue under the provisions of this section, but shall be
resolved in accordance with Sec. 199.3 of this part.
[[Page 234]]
(B) Similarly, decisions relating to the issuance of a
Nonavailability Statement (DD Form 1251) in each case are made by the
Uniformed Services. Disputes over the need for a Nonavailability
Statement or a refusal to issue a Nonavailability Statement are not
appealable under this section. The one exception is when a dispute
arises over whether the facts of the case demonstrate a medical
emergency for which a Nonavailability Statement is not required. Denial
of payment in this one situation is an appealable issue.
(C) Any sanction, including the period of the sanction, imposed
under Sec. 199.9 of this part which is based solely on a provider's
exclusion or suspension by another agency of the Federal Government, a
state, or a local licensing authority is not appealable under this
section. The provider must exhaust administrative appeal rights offered
by the other agency that made the initial determination to exclude or
suspend the provider. Similarly, any sanction imposed under Sec. 199.9
which is based solely on a criminal conviction or civil judgment against
the provider is not appealable under this section. If the sanction
imposed under Sec. 199.9 is not based solely on the provider's criminal
conviction or civil judgment or on the provider's exclusion or
suspension by another agency of the Federal Government, a state, or a
local licensing authority, that portion of the CHAMPUS administrative
determination which is in addition to the criminal conviction/civil
judgment or exclusion/suspension by the other agency may be appealed
under this section.
(v) A decision by the Director, OCHAMPUS, or a designee, as a
suspending official when the decision is final under the provisions of
Sec. 199.9(h)(1)(iv)(A).
(7) Amount in dispute. An amount in dispute is required for an
adverse determination to be appealed under the provisions of this
section, except as set forth below.
(i) The amount in dispute is calculated as the amount of money
CHAMPUS would pay if the services and supplies involved in dispute were
determined to be authorized CHAMPUS benefits. Examples of amounts of
money that are excluded by the Regulation from CHAMPUS payments for
authorized benefits include, but are not limited to:
(A) Amounts in excess of the CHAMPUS-determined allowable charge or
cost.
(B) The beneficiary's CHAMPUS deductible and cost-share amounts.
(C) Amounts that the CHAMPUS beneficiary, or parent, guardian, or
other responsible person has no legal obligation to pay.
(D) Amounts excluded under the provisions of Sec. 199.8 of this
part.
(ii) The amount of dispute for appeals involving a denial of a
request for authorization in advance of obtaining care shall be the
estimated allowable charge or cost for the services requested.
(iii) There is no requirement for an amount in dispute when the
appealable issue involves a denial of a provider's request for approval
as an authorized CHAMPUS provider or the determination to exclude,
suspend, or terminate a provider's authorized CHAMPUS provider status.
(iv) Individual claims may be combined to meet the required amount
in dispute if all of the following exist:
(A) The claims involve the same beneficiary.
(B) The claims involve the same issue.
(C) At least one of the claims so combined has had a reconsideration
decision issued by OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer
review organization.
Note: A request for administrative review under this appeal process
which involves a dispute regarding a requirement of law or regulation
(paragraph (a)(6)(i) of this section) or does not involve a sufficient
amount in dispute (paragraph (a)(7) of this section) may not be rejected
at the reconsideration level of appeal. However, an appeal shall involve
an appealable issue and sufficient amount in dispute under these
paragraphs to be granted a formal review or hearing.
(8) Levels of appeal. The sequence and procedures of a CHAMPUS
appeal vary, depending on whether the initial determination was made by
OCHAMPUS, OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review
organization.
(i) Appeal levels for initial determination made by OCHAMPUSEUR,
[[Page 235]]
CHAMPUS contractor, or CHAMPUS peer review organization. (A)
Reconsideration by OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer
review organization.
(B) Formal review by OCHAMPUS (except for CHAMPUS peer review
organization reconsiderations).
(C) Hearing.
(ii) Appeal levels for initial determination made by OCHAMPUS. (A)
Reconsideration by OCHAMPUSEUR or CHAMPUS contractor.
(B) Formal review by OCHAMPUS except (1) initial determinations
involving the suspension of claims processing where the Director,
OCHAMPUS, or a designee, determines that additional proceedings are
necessary as to disputed material facts and the suspending official's
decision is not final under the provisions of Sec. 199.9(h) (1)(iv)(A)
or (2) initial determinations involving the sanctioning (exclusion,
suspension, or termination) of CHAMPUS providers. Initial determinations
involving these matters shall be appealed directly to the hearing level.
(C) Hearing.
(9) Appeal decision. An appeal decision at any level may address all
pertinent issues which arise under the appeal or are otherwise presented
by the information in the case record (for example, the entire episode
of care in the appeal), and shall not be limited to addressing the
specific issue appealed by a party. In the case of sanctions imposed
under Sec. 199.9, the final decision may affirm, increase or reduce the
sanction period imposed by CHAMPUS, or otherwise modify or reverse the
imposition of the sanction.
(b) Reconsideration. Any party to the initial determination made by
the CHAMPUS contractor, or a CHAMPUS peer review organization may
request reconsideration.
(1) Requesting a reconsideration--(i) Written request required. The
request must be in writing, shall state the specific matter in dispute,
and shall include a copy of the notice of initial determination (such as
the CEOB form) made by OCHAMPUSEUR, the CHAMPUS contractor, or the
CHAMPUS peer review organization.
(ii) Where to file. The request shall be submitted to the office
that made the initial determination (i.e., OCHAMPUSEUR, the CHAMPUS
contractor, or the CHAMPUS peer review organization) or any other
CHAMPUS contractor designated in the notice of initial determination.
(iii) Allowed time to file. The request must be mailed within 90
days after the date of the notice of initial determination.
(iv) Official filing date. A request for a reconsideration shall be
deemed filed on the date it is mailed and postmarked. If the request
does not have a postmark, it shall be deemed filed on the date received
by OCHAMPUSEUR, the CHAMPUS contractor or the CHAMPUS peer review
organization.
(2) The reconsideration process. The purpose of the reconsideration
is to determine whether the initial determination was made in accordance
with law, regulation, policies, and guidelines in effect at the time the
care was provided or requested, or at the time of the initial
determination and/or reconsideration decision involving a provider
request for approval as an authorized provider under CHAMPUS. The
reconsideration is performed by a member of the OCHAMPUSEUR, CHAMPUS
contractor, or CHAMPUS peer review organization staff who was not
involved in making the initial determination and is a thorough and
independent review of the case. The reconsideration is based on the
information submitted that led to the initial determination, plus any
additional information that the appealing party may submit or
OCHAMPUSEUR, the CHAMPUS contractor, or CHAMPUS peer review organization
may obtain.
(3) Timeliness of reconsideration determination. OCHAMPUSEUR, the
CHAMPUS contractor, or CHAMPUS peer review organization normally shall
issue its reconsideration determination no later than 60 days from the
date of receipt of the request for reconsideration by OCHAMPUSEUR, the
CHAMPUS contractor, or the CHAMPUS peer review organization.
(4) Notice of reconsideration determination. OCHAMPUSEUR, the
CHAMPUS contractor, or the CHAMPUS peer review organization shall issue
a written
[[Page 236]]
notice of the reconsideration determination to the appealing party at
his or her last known address. The notice of the reconsideration must
contain the following elements:
(i) A statement of the issues or issue under appeal.
(ii) The provisions of law, regulation, policies, and guidelines
that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that
is relevant to the issue or issues under appeal.
(iv) Whether the reconsideration upholds the initial determination
or reverses it, in whole or in part, and the rationale for the action.
(v) A statement of the right to appeal further in any case when the
reconsideration determination is less than fully favorable to the
appealing party and the amount in dispute is $50 or more.
(5) Effect of reconsideration determination. The reconsideration
determination is final if either of the following exist:
(i) The amount in dispute is less than $50.
(ii) Appeal rights have been offered, but a request for formal
review is not received by OCHAMPUS within 60 days of the date of the
notice of the reconsideration determination.
(c) Formal review. Except as explained in this paragraph, any party
to an initial determination made by OCHAMPUS, or a reconsideration
determination made by the CHAMPUS contractor, may request a formal
review by OCHAMPUS if the party is dissatisfied with the initial or
reconsideration determination unless the initial or reconsideration
determination is final under paragraph (b)(5) of this section; involves
the sanctioning of a provider by the exclusion, suspension or
termination of authorized provider status; involves a written decision
issued pursuant to Sec. 199.9(h)(1)(iv)(A) regarding the temporary
suspension of claims processing; or involves a reconsideration
determination by a CHAMPUS peer review organization. A hearing, but not
a formal review level of appeal, may be available to a party to an
initial determination involving the sanctioning of a provider or to a
party to a written decision involving a temporary suspension of claims
processing. A beneficiary (or an authorized representative of a
beneficiary), but not a provider (except as provided in Sec. 199.15),
may request a hearing, but not a formal review, of a reconsideration
determination made by a CHAMPUS peer review organization.
(1) Requesting a formal review. (i) Written request required. The
request must be in writing, shall state the specific matter in dispute,
shall include copies of the written determination (notice of
reconsideration determination or OCHAMPUS initial determination) being
appealed, and shall include any additional information or documents not
submitted previously.
(ii) Where to file. The request shall be submitted to the Chief,
Office of Appeals and Hearings, TRICARE Management Activity, 16401 East
Centretech Parkway, Auroa, Colorado 80011-9066.
(iii) Allowed time to file. The request shall be mailed within 60
days after the date of the notice of the reconsideration determination
or OCHAMPUS initial determination being appealed.
(iv) Official filing date. A request for a formal review shall be
deemed filed on the date it is mailed and postmarked. If the request
does not have a postmark, it shall be deemed filed on the date received
by OCHAMPUS.
(2) The formal review process. The purpose of the formal review is
to determine whether the initial determination or reconsideration
determination was made in accordance with law, regulation, policies, and
guidelines in effect at the time the care was provided or requested or
at the time of the initial determination, reconsideration, or formal
review decision involving a provider request for approval as an
authorized CHAMPUS provider. The formal review is performed by the
Chief, Office of Appeals and Hearings, OCHAMPUS, or a designee, and is a
thorough review of the case. The formal review determination shall be
based on the information, upon which the initial determination and/or
reconsideration determination was based, and any additional information
the appealing party may submit or OCHAMPUS may obtain.
(3) Timeliness of formal review determination. The Chief, Office of
Appeals
[[Page 237]]
and Hearings, OCHAMPUS, or a designee normally shall issue the formal
review determination no later than 90 days from the date of receipt of
the request for formal review by the OCHAMPUS.
(4) Notice of formal review determination. The Chief, Office of
Appeals and Hearings, OCHAMPUS, or a designee shall issue a written
notice of the formal review determination to the appealing party at his
or her last known address. The notice of the formal review determination
must contain the following elements:
(i) A statement of the issue or issues under appeal.
(ii) The provisions of law, regulation, policies, and guidelines
that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that
is relevant to the issue or issues under appeal.
(iv) Whether the formal review upholds the prior determination or
determinations or reverses the prior determination or determinations in
whole or in part and the rationale for the action.
(v) A statement of the right to request a hearing in any case when
the formal review determination is less than fully favorable, the issue
is appealable, and the amount in dispute is $300 or more.
(5) Effect of formal review determination. The formal review
determination is final if one or more of the following exist:
(i) The issue is not appealable. (See paragraph (a)(6) of this
section.)
(ii) The amount in dispute is less than $300. (See paragraph (a)(7)
of this section.)
(iii) Appeal rights have been offered but a request for hearing is
not received by OCHAMPUS within 60 days of the date of the notice of the
formal review determination.
(d) Hearing. Any party to the initial determination may request a
hearing if the party is dissatisfied with the formal review
determination and the formal review determination is not final under the
provisions of paragraph (c)(5), of this section, or the initial
determination involves the sanctioning of a provider under Sec. 199.9
of this part and involves an appealable issue.
(1) Requesting a hearing--(i) Written request required. The request
shall be in writing, state the specific matter in dispute, include a
copy of the appropriate initial determination or formal review
determination being appealed, and include any additional information or
documents not submitted previously.
(ii) Where to file. The request shall be submitted to the Chief,
Appeals and Hearings, OCHAMPUS, Aurora, Colorado 80045-6900.
(iii) Allowed time to file. The request shall be mailed within 60
days after the date of the notice of the initial determination or formal
review determination being appealed.
(iv) Official filing date. A request for hearing shall be deemed
filed on the date it is mailed and postmarked. If a request for hearing
does not have a postmark, it shall be deemed filed on the day received
by OCHAMPUS.
(2) Hearing process. A hearing is an administrative proceeding in
which facts relevant to the appealable issue(s) in the case are
presented and evaluated in relation to applicable law, regulation,
policies, and guidelines in effect at the time the care in dispute was
provided or requested; at the time of the initial determination, formal
review determination, or hearing decision involving a provider request
for approval under CHAMPUS as an authorized provider; or at the time of
the act or event which is the basis for the imposition of sanctions
under this part. A hearing, except for an appeal involving a provider
sanction, generally shall be conducted as a nonadversary, administrative
proceeding. However, an authorized party to any hearing, including
CHAMPUS, may submit additional evidence or testimony relevant to the
appealable issue(s) and may appoint a representative, including legal
counsel, to participate in the hearing process.
(3) Timeliness of hearing. (i) Except as otherwise provided in this
section, within 60 days following receipt of a request for hearing, the
Director, OCHAMPUS, or a designee, normally will appoint a hearing
officer to hear the appeal. Copies of all records in the possession of
OCHAMPUS that are pertinent to the matter to be heard or
[[Page 238]]
that formed the basis of the formal review determination shall be
provided to the hearing officer and, upon request, to the appealing
party.
(ii) The hearing officer, except as otherwise provided in this
Section, normally shall have 60 days from the date of written notice of
assignment to review the file, schedule and hold the hearing, and issue
a recommended decision to the Director, OCHAMPUS, or designee.
(iii) The Director, OCHAMPUS, or designee, may delay the case
assignment to the hearing officer if additional information is needed
that cannot be obtained and included in the record within the time
period specified above. The appealing party will be notified in writing
of the delay resulting from the request for additional information. The
Director, OCHAMPUS, or a designee, in such circumstances, will assign
the case to a hearing officer within 30 days of receipt of all such
additional information, or within 60 days of receipt of the request for
hearing, whichever shall occur last.
(iv) The hearing officer may delay submitting the recommended
decision if, at the close of the hearing, any party to the hearing
requests that the record remain open for submission of additional
information. In such circumstances, the hearing officer will have 30
days following receipt of all such additional information including
comments from the other parties to the hearing concerning the additional
information to submit the recommended decision to the Director,
OCHAMPUS, or a designee.
(4) Representation at a hearing. Any party to the hearing may
appoint a representative to act on behalf of the party at the hearing,
unless such person currently is disqualified or suspended from acting in
another Federal administrative proceeding, or unless otherwise
prohibited by law, this part, or any other DoD regulation (see paragraph
(a)(2)(ii) of this section). A hearing officer may refuse to allow any
person to represent a party at the hearing when such person engages in
unethical, disruptive, or contemptuous conduct, or intentionally fails
to comply with proper instructions or requests of the hearing officer,
or the provisions of this part. The representative shall have the same
authority as the appealing party and notice given to the representative
shall constitute notice required to be given to the appealing party.
(5) Consolidation of proceedings. The Director, OCHAMPUS, or a
designee, may consolidate any number of proceedings for hearing when the
facts and circumstances are similar and no substantial right of an
appealing party will be prejudiced.
(6) Authority of the hearing officer. The hearing officer in
exercising the authority to conduct a hearing under this part will be
bound by 10 U.S.C. chapter 55 and this part. The hearing officer in
addressing substantive, appealable issues shall be bound by policy
manuals, instructions, procedures, and other guidelines issued by the
ASD(HA), or a designee, or by the Director, OCHAMPUS, or a designee, in
effect for the period in which the matter in dispute arose. A hearing
officer may not establish or amend policy, procedures, instructions, or
guidelines. However, the hearing officer may recommend reconsideration
of the policy, procedures, instructions or guidelines by the ASD(HA), or
a designee, when the final decision is issued in the case.
(7) Disqualification of hearing officer. A hearing officer
voluntarily shall disqualify himself or herself and withdraw from any
proceeding in which the hearing officer cannot give fair or impartial
hearing, or in which there is a conflict of interest. A party to the
hearing may request the disqualification of a hearing officer by filing
a statement detailing the reasons the party believes that a fair and
impartial hearing cannot be given or that a conflict of interest exists.
Such request immediately shall be sent by the appealing party or the
hearing officer to the Director, OCHAMPUS, or a designee, who shall
investigate the allegations and advise the complaining party of the
decision in writing. A copy of such decision also shall be mailed to all
other parties to the hearing. If the Director, OCHAMPUS, or a designee,
reassigns the case to another hearing officer, no investigation shall be
required.
[[Page 239]]
(8) Notice and scheduling of hearing. The hearing officer shall
issue by certified mail, when practicable, a written notice to the
parties to the hearing of the time and place for the hearing. Such
notice shall be mailed at least 15 days before the scheduled date of the
hearing. The notice shall contain sufficient information about the
hearing procedure, including the party's right to representation, to
allow for effective preparation. The notice also shall advise the
appealing party of the right to request a copy of the record before the
hearing. Additionally, the notice shall advise the appealing party of
his or her responsibility to furnish the hearing officer, no later than
7 days before the scheduled date of the hearing, a list of all witnesses
who will testify and a copy of all additional information to be
presented at the hearing. The time and place of the hearing shall be
determined by the hearing officer, who shall select a reasonable time
and location mutually convenient to the appealing party and OCHAMPUS.
(9) Dismissal of request for hearing. (i) By application of
appealing party. A request for hearing may be dismissed by the Director,
OCHAMPUS, or a designee, at any time before the mailing of the final
decision, upon the application of the appealing party. A request for
dismissal must be in writing and filed with the Chief, Appeals and
Hearings, OCHAMPUS, or the hearing officer. When dismissal is requested,
the formal review determination in the case shall be deemed final,
unless the dismissal is vacated in accordance with paragraph (d)(9)(v)
of this section.
(ii) By stipulation of the parties to the hearing. A request for a
hearing may be dismissed by the Director, OCHAMPUS, or a designee, at
any time before to the mailing of notice of the final decision under a
stipulation agreement between the appealing party and OCHAMPUS. When
dismissal is entered under a stipulation, the formal review decision
shall be deemed final, unless the dismissal is vacated in accordance
with paragraph (d)(9)(v) of this section.
(iii) By abandonment. The Director, OCHAMPUS, or a designee, may
dismiss a request for hearing upon abandonment by the appealing party.
(A) An appealing party shall be deemed to have abandoned a request
for hearing, other than when personal appearance is waived in accordance
with Sec. 199.10(d)(11)(xii), if neither the appealing party nor an
appointed representative appears at the time and place fixed for the
hearing and if, within 10 days after the mailing of a notice by
certified mail to the appealing party by the hearing officer to show
cause, such party does not show good and sufficient cause for such
failure to appear and failure to notify the hearing officer before the
time fixed for hearing that an appearance could not be made.
(B) An appealing party shall be deemed to have abandoned a request
for hearing if, before assignment of the case to the hearing officer,
OCHAMPUS is unable to locate either the appealing party or an appointed
representative.
(C) An appealing party shall be deemed to have abandoned a request
for hearing if the appealing party fails to prosecute the appeal.
Failure to prosecute the appeal includes, but is not limited to, an
appealing party's failure to provide information reasonably requested by
OCHAMPUS or the hearing officer for consideration in the appeal.
(D) If the Director, OCHAMPUS, or a designee, dismisses the request
for hearing because of abandonment, the formal review determination in
the case shall be deemed to be final, unless the dismissal is vacated in
accordance with paragraph (d)(9)(v) of this section.
(iv) For cause. The Director, OCHAMPUS, or a designee, may dismiss
for cause a request for hearing either entirely or as to any stated
issue. If the Director, OCHAMPUS, or a designee, dismisses a hearing
request for cause, the formal review determination in the case shall be
deemed to be final, unless the dismissal is vacated in accordance with
paragraph (d)(9)(v) of this section. A dismissal for cause may be issued
under any of the following circumstances:
(A) When the appealing party requesting the hearing is not a proper
party under paragraph (a)(2)(i) of this section, or does not otherwise
have a right to participate in a hearing.
[[Page 240]]
(B) When the appealing party who filed the hearing request dies, and
there is no information before the Director, OCHAMPUS, or a designee,
showing that a party to the initial determination who is not an
appealing party may be prejudiced by the formal review determination.
(C) When the issue is not appealable (see Sec. 199.10(a)(6)).
(D) When the amount in dispute is less than $300 (see Sec.
199.10(a)(7)).
(E) When all appealable issues have been resolved in favor of the
appealing party.
(v) Vacation of dismissal. Dismissal of a request for hearing may be
vacated by the Director, OCHAMPUS, or a designee, upon written request
of the appealing party, if the request is received within 6 months of
the date of the notice of dismissal mailed to the last known address of
the party requesting the hearing.
(10) Preparation for hearing. (i) Prehearing statement of
contentions. The hearing officer may on reasonable notice require a
party to the hearing to submit a written statement of contentions and
reasons. The written statement shall be provided to all parties to the
hearing before the hearing takes place.
(ii) Discovery. Upon the written request of a party to the initial
determination (including OCHAMPUS) and for good cause shown, the hearing
officer will allow that party to inspect and copy all documents, unless
privileged, relevant to issues in the proceeding that are in the
possession or control of the other party participating in the appeal.
The written request shall state clearly what information and documents
are required for inspection and the relevance of the documents to the
issues in the proceeding. Depositions, interrogatories, requests for
admissions, and other forms of prehearing discovery are generally not
authorized and the Department of Defense does not have subpoena
authority for purposes of administrative hearings under this Section. If
the hearing officer finds that good cause exists for taking a deposition
or interrogatory, the expense shall be assessed to the requesting party,
with copies furnished to the hearing officer and the other party or
parties to the hearing.
(iii) Witnesses and evidence. All parties to a hearing are
responsible for producing, at each party's expense, meaning without
reimbursement of payment by CHAMPUS, witnesses and other evidence in
their own behalf, and for furnishing copies of any such documentary
evidence to the hearing officer and other party or parties to the
hearing. The Department of Defense is not authorized to subpoena
witnesses or records. The hearing officer may issue invitations and
requests to individuals to appear and testify without cost to the
Government, so that the full facts in the case may be presented.
(11) Conduct of hearing. (i) Right to open hearing. Because of the
personal nature of the matters to be considered, hearings normally shall
be closed to the public. However, the appealing party may request an
open hearing. If this occurs, the hearing shall be open except when
protection of other legitimate Government purposes dictates closing
certain portions of the hearing.
(ii) Right to examine parties to the hearing and their witnesses.
Each party to the hearing shall have the right to produce and examine
witnesses, to introduce exhibits, to question opposing witnesses on any
matter relevant to the issue even though the matter was not covered in
the direct examination, to impeach any witness regardless of which party
to the hearing first called the witness to testify, and to rebut any
evidence presented. Except for those witnesses employed by OCHAMPUS at
the time of the hearing, or records in the possession of OCHAMPUS, a
party to a hearing shall be responsible, that is to say no payment or
reimbursement shall be made by CHAMPUS for the cost or fee associated
with producing witnesses or other evidence in the party's own behalf, or
for furnishing copies of documentary evidence to the hearing officer and
other party or parties to the hearing.
(iii) Taking of evidence. The hearing officer shall control the
taking of evidence in a manner best suited ascertain the facts and
safeguard the rights of the parties to the hearing. Before taking
evidence, the hearing officer shall identify and state the issues in
dispute
[[Page 241]]
on the record and the order in which evidence will be received.
(iv) Questioning and admission of evidence. A hearing officer may
question any witness and shall admit any relevant evidence. Evidence
that is irrelevant or unduly repetitious shall be excluded.
(v) Relevant evidence. Any relevant evidence shall be admitted,
unless unduly repetitious, if it is the type of evidence on which
responsible persons are accustomed to rely in the conduct of serious
affairs, regardless of the existence of any common law or statutory rule
that might make improper the admission of such evidence over objection
in civil or criminal actions.
(vi) CHAMPUS determination first. The basis of the CHAMPUS
determinations shall be presented to the hearing officer first. The
appealing party shall then be given the opportunity to establish
affirmatively why this determination is held to be in error.
(vii) Testimony. Testimony shall be taken only on oath, affirmation,
or penalty of perjury.
(viii) Oral argument and briefs. At the request of any party to the
hearing made before the close of the hearing, the hearing officer shall
grant oral argument. If written argument is requested, it shall be
granted, and the parties to the hearing shall be advised as to the time
and manner within which such argument is to be filed. The hearing
officer may require any party to the hearing to submit written memoranda
pertaining to any or all issues raised in the hearing.
(ix) Continuance of hearing. A hearing officer may continue a
hearing to another time or place on his or her own motion or, upon
showing of good cause, at the request of any party. Written notice of
the time and place of the continued hearing, except as otherwise
provided here, shall be in accordance with this part. When a continuance
is ordered during a hearing, oral notice of the time and place of the
continued hearing may be given to each party to the hearing who is
present at the hearing.
(x) Continuance for additional evidence. If the hearing officer
determines, after a hearing has begun, that additional evidence is
necessary for the proper determination of the case, the following
procedures may be invoked:
(A) Continue hearing. The hearing may be continued to a later date
in accordance with Sec. 199.10(d)(11)(ix), above.
(B) Closed hearing. The hearing may be closed, but the record held
open in order to permit the introduction of additional evidence. Any
evidence submitted after the close of the hearing shall be made
available to all parties to the hearing, and all parties to the hearing
shall have the opportunity for comment. The hearing officer may reopen
the hearing if any portion of the additional evidence makes further
hearing desirable. Notice thereof shall be given in accordance with
paragraph (d)(8) of this section.
(xi) Transcript of hearing. A verbatim taped record of the hearing
shall be made and shall become a permanent part of the record. Upon
request, the appealing party shall be furnished a duplicate copy of the
tape. A typed transcript of the testimony will be made only when
determined to be necessary by OCHAMPUS. If a typed transcript is made,
the appealing party shall be furnished a copy without charge.
Corrections shall be allowed in the typed transcript by the hearing
officer solely for the purpose of conforming the transcript to the
actual testimony.
(xii) Waiver of right to appear and present evidence. If all parties
waive their right to appear before the hearing officer for presenting
evidence and contentions personally or by representation, it will not be
necessary for the hearing officer to give notice of, or to conduct a
formal hearing. A waiver of the right to appear must be in writing and
filed with the hearing officer or the Chief, Appeals and Hearings,
OCHAMPUS. Such waiver may be withdrawn by the party by written notice
received by the hearing officer or Chief, Appeals and Hearings, no later
than 7 days before the scheduled hearing or the mailing of notice of the
final decision, whichever occurs first. For purposes of this Section,
failure of a party to appear personally or by representation after
filing written notice of waiver, will not be cause for finding of
abandonment and the hearing officer shall make the recommended decision
on the basis of all evidence of record.
[[Page 242]]
(12) Recommended decision. At the conclusion of the hearing and
after the record has been closed, the matter shall be taken under
consideration by the hearing officer. Within the time frames previously
set forth in this Section, the hearing officer shall submit to the
Director, OCHAMPUS, or a designee, a written recommended decision
containing a statement of findings and a statement of reasons based on
the evidence adduced at the hearing and otherwise included in the
hearing record.
(i) Statement of findings. A statement of findings is a clear and
concise statement of fact evidenced in the record or conclusions that
readily can be deduced from the evidence of record. Each finding must be
supported by substantial evidence that is defined as such evidence as a
reasonable mind can accept as adequate to support a conclusion.
(ii) Statement of reasons. A reason is a clear and concise statement
of law, regulation, policies, or guidelines relating to the statement of
findings that provides the basis for the recommended decision.
(e) Final decision--(1) Director, OCHAMPUS. The recommended decision
shall be reviewed by the Director, OCHAMPUS, or a designee, who shall
adopt or reject the recommended decision or refer the recommended
decision for review by the Assistant Secretary of Defense (Health
Affairs). The Director, OCHAMPUS, or designee, normally will take action
with regard to the recommended decision within 90 days of receipt of the
recommended decision or receipt of the revised recommended decision
following a remand order to the Hearing Officer.
(i) Final action. If the Director, OCHAMPUS, or a designee, concurs
in the recommended decision, no further agency action is required and
the recommended decision, as adopted by the Director, OCHAMPUS, is the
final agency decision in the appeal. In the case of rejection, the
Director, OCHAMPUS, or a designee, shall state the reason for
disagreement with the recommended decision and the underlying facts
supporting such disagreement. In these circumstances, the Director,
OCHAMPUS, or a designee, may have a final decision prepared based on the
record, or may remand the matter to the Hearing Officer for appropriate
action. In the latter instance, the Hearing Officer shall take
appropriate action and submit a new recommended decision within 60 days
of receipt of the remand order. The decision by the Director, OCHAMPUS,
or a designee, concerning a case arising under the procedures of this
section, shall be the final agency decision and the final decision shall
be sent by certified mail to the appealing party or parties. A final
agency decision under paragraph (e)(1) of this section will not be
relied on, used, or cited as precedent by the Department of Defense in
the administration of CHAMPUS.
(ii) Referral for review by ASD(HA). The Director, OCHAMPUS, or a
designee, may refer a hearing case to the Assistant Secretary of Defense
(Health Affairs) when the hearing involves the resolution of CHAMPUS
policy and issuance of a final decision which may be relied on, used, or
cited as precedent in the administration of CHAMPUS. In such a
circumstance, the Director, OCHAMPUS, or a designee, shall forward the
recommended decision, together with the recommendation of the Director,
OCHAMPUS, or a designee, regarding disposition of the hearing case.
(2) ASD(HA). The ASD(HA), or a designee, after reviewing a case
arising under the procedures of this section may issue a final decision
based on the record in the hearing case or remand the case to the
Director, OCHAMPUS, or a designee, for appropriate action. A decision
issued by the ASD(HA), or a designee, shall be the final agency decision
in the appeal and a copy of the final decision shall be sent by
certified mail to the appealing party or parties. A final decision of
the ASD(HA), or a designee, issued under this paragraph (e)(2) may be
relied on, used, or cited as precedent in the administration of CHAMPUS.
[51 FR 24008, July 1, 1986, as amended at 52 FR 33007, Sept. 1, 1987; 54
FR 25255, June 14, 1989; 55 FR 43341, Nov. 16, 1990; 56 FR 59880, Nov.
26, 1991; 66 FR 40607, Aug. 3, 2001; 68 FR 11973, Mar. 13, 2003; 68 FR
23033, Apr. 30, 2003; 68 FR 32362, May 30, 2003; 69 FR 6920, Feb. 12,
2004]
[[Page 243]]
Sec. 199.11 Overpayments recovery.
(a) General. Actions to recover overpayments arise when the
government has a right to recover money, funds, or property from any
person, partnership, association, corporation, governmental body or
other legal entity, foreign or domestic, except another Federal agency,
because of an erroneous payment of benefits under both CHAMPUS and the
TRICARE program under this part. The term ``Civilian Health and Medical
Program of the Uniformed Services'' (CHAMPUS) is defined in 10 U.S.C.
1072(2), referred to as the CHAMPUS basic program. Prior to January 1,
2018, the term ``TRICARE program'' referred to the triple-option of
health benefits known as TRICARE Prime, TRICARE Extra, and TRICARE
Standard. Specifically, TRICARE Standard was the TRICARE program under
which the basic program of health care benefits generally referred to as
CHAMPUS was made available to eligible beneficiaries under this Part
199. Effective January 1, 2018, the term ``TRICARE program'' is defined
in 10 U.S.C. 1072(2) and includes TRICARE Prime, TRICARE Select and
TRICARE for Life. It is the purpose of this section to prescribe
procedures for investigation, determination, assertion, collection,
compromise, waiver and termination of claims in favor of the United
States for erroneous benefit payments arising out of the administration
CHAMPUS and the TRICARE program. For the purpose of this section,
references herein to TRICARE beneficiaries, claims, benefits, payments,
or appeals shall include CHAMPUS beneficiaries, claims, benefits,
payments, or appeals. A claim against several joint debtors arising from
a single incident or transaction is considered one claim. The Director,
or a designee, may pursue collection against all joint debtors and is
not required to allocate the burden of payment between debtors.
(b) Authority--(1) Federal statutory authority. The Federal Claims
Collection Act, 31 U.S.C. 3701, et seq., as amended by the Debt
Collection Act of 1982 and the Debt Collection Improvement Act of 1996
(DCIA), provides the basic authority under which claims may be asserted
pursuant to this section. The DCIA is implemented by the Federal Claims
Collection Standards, joint regulations issued by the Department of the
Treasury (Treasury) and the Department of Justice (DOJ) (31 CFR Parts
900-904), that prescribe government-wide standards for administrative
collection, offset, compromise, suspension, or termination of agency
collection action, disclosure of debt information to credit reporting
agencies, referral of debts to private collection contractors for
resolution, and referral to the Department of Justice for litigation to
collect debts owed the Federal government. The regulations under this
part are also issued under Treasury regulations implementing the DCIA
(31 CFR part 285) and related statutes and regulations governing the
offset of Federal salaries (5 U.S.C. 5514; 5 CFR part 550, subpart K),
administrative offset (31 U.S.C. 3716; 31 CFR part 285, subpart A);
administrative offset of tax refunds (31 U.S.C. 3720A) and offset of
military pay (37 U.S.C. 1007(c); Volume 7A, Chapter 50 and Volume 7B,
Chapter 28 of the Department of Defense Financial Management Regulation,
DOD 7000.14-R \1\ (DoDFMR)).
---------------------------------------------------------------------------
\1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(2) Other authority. Federal claims may arise under authorities
other than the federal statutes, referenced above. These include, but
are not limited to:
(i) State worker's compensation laws.
(ii) State hospital lien laws.
(iii) State no-fault automobile statutes.
(iv) Contract rights under terms of insurance policies.
(c) Policy. The Director, TMA, or a designee, shall aggressively
collect all debts arising out of its activities. Claims arising out of
any incident, which has or probably will generate a claim in favor of
the government, will not be compromised, except as otherwise provided in
this section, nor will any person not authorized to take final action on
the government's claim, compromise or terminate collection action. Title
28 U.S.C. 2415-2416 establishes a statute of limitation applicable to
the government where previously neither limitations nor latches were
available as a defense. Claims falling within the provisions of this
[[Page 244]]
statute will be referred to the Department of Justice without attempting
administrative collection action, if such action cannot be accomplished
in sufficient time to preclude the running of the statute of
limitations.
(d) Appealability. This section describes the procedures to be
followed in the recovery and collection of federal claims in favor of
the United States arising from the operation of TRICARE. Actions taken
under this section are not initial determinations for the purpose of the
appeal procedures of Sec. 199.10 of this part. However, the proper
exercise of the right to appeal benefit or provider status
determinations under the procedures set forth in Sec. 199.10 of this
part may affect the processing of federal claims arising under this
section. Those appeal procedures afford a TRICARE beneficiary or
participating provider an opportunity for administrative appellate
review in cases in which benefits have been denied and in which there is
an appealable issue. For example, a TRICARE contractor may erroneously
make payment for services, which are excluded as TRICARE benefits
because they are determined to be not medically necessary. In that
event, the contractor will initiate recoupment action, and at the same
time, the contractor will offer an administrative appeal as provided in
Sec. 199.10 of this part on the medical necessity issue raised by the
adverse benefit determination. The recoupment action and the
administrative appeal are separate actions. However, in an appropriate
case, the pendency of the appeal may provide a basis for the suspension
of collection in the recoupment case. If an appeal were resolved
entirely in favor of the appealing party, it would provide a basis for
the termination of collection action in the recoupment case.
(e) Delegation. Subject to the limitations imposed by law or
contained in this section, the authority to assert, settle, and
compromise or to suspend or terminate collection action arising on
claims under the Federal Claims Collection Act has been delegated to the
Director, TMA, or a designee.
(f) Recoupment of erroneous payments. (1) Erroneous payments are
expenditures of government funds, which are not authorized by law or
this part. Examples which are sometimes encountered in the
administration of TRICARE include mathematical errors, payment for care
provided to an ineligible person, payment for care which is not an
authorized benefit, payment for duplicate claims, incorrect application
of the deductible or co-payment or payment for services which were not
medically necessary. Claims in favor of the government arising as the
result of the filing of false TRICARE claims or other fraud fall under
the cognizance of the Department of Justice. Consequently, procedures in
this section apply to such claims only when specifically authorized or
directed by the Department of Justice. (See 31 CFR 900.3.) Due to the
nature of contractual agreements between network providers and TRICARE
prime contractors, recoupment procedures may be modified or adapted to
conform to network agreements. The provisions of Sec. 199.11 shall
apply if recoupment under the network agreements is not successful.
(2) Scope--(i) General. Paragraph (f) of this section and the
paragraphs following contain requirements and procedures for the
assertion, collection or compromise of, and the suspension or
termination of collection action on claims for erroneous payments
against a sponsor, patient, beneficiary, provider, physician or other
supplier of products or services under TRICARE.
(ii) Debtor defined. As used herein, ``debtor'' means a sponsor,
beneficiary, provider, physician, other supplier of services or
supplies, or any other person who for any reason has been erroneously
paid under TRICARE. It includes an individual, partnership, corporation,
professional corporation or association, estate, trust or any other
legal entity.
(iii) Delinquency defined. A debt is ``delinquent'' if it has not
been paid by the date specified in the initial written demand for
payment (that is, the initial written notification) or other applicable
contractual agreement, unless other satisfactory payment arrangements
have been made by the date specified in the initial written demand for
payment. A debt is considered delinquent if at any time after entering
[[Page 245]]
into a repayment agreement, the debtor fails to satisfy any obligations
under that agreement.
(3) Claims arising from erroneous TRICARE payments in situations
where the beneficiary has entitlement to an insurance, medical service,
health and medical plan, including any plan offered by a third party
payer as defined in 10 U.S.C. 1095(h)(1) or other government program,
except in the case of a plan administered under Title XIX of the Social
Security Act (42 U.S.C. 1396, et seq.) through employment, by law,
through membership in an organization, or as a student, or through the
purchase of a private insurance or health plan, shall be recouped
following the procedures in paragraph (f) of this section. If the other
plan has not made payment to the beneficiary or provider, the contractor
shall first attempt to recover the overpayment from the other plan
through the contractor's coordination of benefits procedures. If the
overpayment cannot be recovered from the other plan, or if the other
plan has made payment, the overpayment will be recovered from the party
that received the erroneous payment from TRICARE. Nothing in this
section shall be construed to require recoupment from any sponsor,
beneficiary, provider, supplier and/or the Medicare Program under Title
XVIII of the Social Security Act in the event of a retroactive
determination of entitlement to SSDI and Medicare Part A coverage made
by the Social Security Administration as discussed in Sec. 199.8(d) of
this part.
(4) Claim denials due to clarification or change. In those instances
where claim review results in the denial of benefits previously
provided, but now denied due to a change, clarification or
interpretation of the public law or this part, no recoupment action need
be taken to recover funds expended prior to the effective date of such
change, clarification or interpretation.
(5) Good faith payment. (i) The Department of Defense, through the
Defense Enrollment Eligibility Reporting System (DEERS), is responsible
for establishing and maintaining a file listing of persons eligible to
receive benefits under TRICARE. However, it is the responsibility of the
Uniformed Services to provide eligible TRICARE beneficiaries with
accurate and appropriate means of identification. When sources of
civilian medical care exercise reasonable care and precaution
identifying persons claiming to be eligible TRICARE beneficiaries, and
furnish otherwise covered services and supplies to such persons in good
faith, TRICARE benefits may be paid subject to prior approval by the
Director, TMA, or a designee, notwithstanding the fact that the person
receiving the services and supplies is subsequently determined to be
ineligible for benefits. Good faith payments will not be authorized for
services and supplies provided by a civilian source of medical care
because of its own careless identification procedures.
(ii) When it is determined that a person was not a TRICARE
beneficiary, the TRICARE contractor and the civilian source of medical
care are expected to make all reasonable efforts to obtain payment or to
recoup the amount of the good faith payment from the person who
erroneously claimed to be the TRICARE beneficiary. Recoupment of good
faith payments initiated by the TRICARE contractor will be processed
pursuant to the provisions of paragraph (f) of this section.
(6) Recoupment procedures. (i) Initial action. When an erroneous
payment is discovered, the TRICARE contractor normally will be required
to take the initial action to effect recoupment. Such actions will be in
accordance with the provisions of this part and the TRICARE contracts
and will include a demand (or demands) for refund or an offset against
any other TRICARE payment(s) becoming due the debtor. When the efforts
of the TRICARE contractor to effect recoupment are not successful within
a reasonable time, recoupment cases will be referred to the Office of
General Counsel, TMA, for further action in accordance with the
provisions of paragraph (f) of this section. All requests to debtors for
refund or notices of intent to offset shall be in writing.
(ii) Demand for payment. Written demand(s) for payment shall inform
the debtor of the following:
[[Page 246]]
(A) The basis for and amount of the debt and the consequences of
failing to cooperate to resolve the debt;
(B) The right to inspect and copy TRICARE records pertaining to the
debt;
(C) The opportunity to request an administrative review by the
TRICARE contractor; and that such a request must be received by the
TRICARE contractor within 90 days from the date of the initial demand
letter;
(D) That payment of the debt is due within 30 days from the date of
the initial demand notification;
(E) That interest will be assessed on the debt at the Treasury
Current Value of Funds rate, pursuant to 31 U.S.C. 3717, and will begin
to accrue on the date of the initial demand letter; and that interest
will be waived on the debt, or any portion thereof, which is paid within
30 days from the date of the initial demand notification letter;
(F) That administrative costs and penalties will be charged pursuant
to 31 CFR 901.9;
(G) That collection by offset against current or subsequent claims
or other amounts payable from the government may be taken;
(H) The opportunity to enter into a written agreement to repay the
debt;
(I) The name, address, and phone number of a contact person or
office that the debtor may contact regarding the debt.
(iii) A minimum of one demand letter is required. However, the
specific content, timing and number of demand letters may be tailored to
the type and amount of the debt, and the debtor's response, if any.
Contractors' demand letters must be mailed or hand-delivered on the same
date they are dated.
(iv) The initial or subsequent demand letters may also inform the
debtor of the requirement to report delinquent debts to credit reporting
agencies and to collection agencies, the requirement to refer debts to
the Treasury Offset Program for offset from Federal income tax refunds
and other amounts payable by the Government, offset from state payments,
the requirement to refer debts to Treasury for collection and TRICARE
policies concerning the referral of delinquent debts to the Department
of Justice for enforced collection action. The initial or subsequent
demand letter may also inform the debtor of TRICARE policies concerning
waiver. When necessary to protect the Government's interest (for example
to prevent the running of a statute of limitations), written demand may
be preceded by other appropriate actions under this regulation,
including referral to the Department of Justice for litigation. There
should be no undue delay in responding to any communication received
from the debtor. Responses to communications from debtors should be made
within 30 days of receipt whenever feasible. If prior to the initiation
of the demand process or at any time during or after completion of the
demand process, the Director, TMA, or a designee, determines to pursue
or is required to pursue offset, the procedures applicable to
administrative offset, found at paragraph (f)(6)(v) of this section,
must be followed. If it appears that initial collection efforts are not
productive or if immediate legal action on the claim appears necessary,
the claim shall be referred promptly by the contractor to the Office of
General Counsel, TMA.
(v) Collection by administrative offset. Collections by offset will
be undertaken administratively in every instance when feasible.
Collections may be taken by administrative offset under 31 U.S.C. 3716,
the common law or other applicable statutory authority. No collection by
offset may be undertaken unless the debtor has been sent a written
demand for payment, including the procedural safeguards described in
paragraph (f)(6)(ii) of this section, unless the failure to take the
offset would substantially prejudice the Government's ability to collect
the debt, and the time before payment is to be made does not reasonably
permit the time for sending written notice. Such prior offset must be
promptly followed by sending a written notice and affording the debtor
the opportunity for a review by the TRICARE contractor. Examples of
erroneous payments include, but are not limited to, claims submitted by
individuals ineligible for TRICARE benefits, claims submitted for non-
covered services or supplies, claims for which payments by
[[Page 247]]
another insurance or health plan reduce TRICARE liability, and from
claims made from participating providers in which payment was initially
erroneously made to the beneficiary. The resolution of recoupment claims
rarely involves issues of credibility or veracity and a review of the
written record is ordinarily an adequate means to correct prior
mistakes. For this reason, the pre-offset oral hearing requirements of
the Federal Claims Collection Standards, 31 CFR 901.3(e) do not apply to
the recoupment of erroneous TRICARE payments. However, in instances
where an oral hearing is not required, the debtor will be afforded an
administrative review if the TRICARE contractor receives a written
request for an administrative review within 90 days from the date of the
initial demand letter. The appeals procedures described in Sec. 199.10
of this part, afford a TRICARE beneficiary or participating provider an
opportunity for an administrative appellate review, including under
certain circumstances, the right to an oral hearing before a hearing
officer when an appealable issue exists. TRICARE contractors may take
administrative action to offset erroneous payments against other current
TRICARE payments owing a debtor. Payments on the claims of a debtor
pending at or filed subsequent to the time collection action is
initiated should be suspended pending the outcome of the collection
action so that these funds will be available for offset. All or part of
a debt may be offset depending on the amount available for offset. Any
requests for offset received from other agencies and garnishment orders
issued by courts of competent jurisdiction will be forwarded to the
Office of General Counsel, TMA. Unless otherwise provided by law,
administrative offset of payments under the authority of 31 U.S.C. 3716
may not be conducted more than 10 years after the Government's right to
collect the debt first accrued, unless facts material to the
Government's right to collect the debt were not known and could not
reasonably have been known by the TRICARE official or officials charged
with the responsibility to discover and collect such debts. This
limitation does not apply to debts reduced to judgment. This section
does not apply to debts arising under the Social Security Act, except as
provided in 42 U.S.C. 404, payments made under the Social Security Act,
except as provided for in 31 U.S.C. 3716(c), debts arising under, or
payments made under, the Internal Revenue Code, except for offset of tax
refunds or tariff laws of the United States; offsets against Federal
salaries to the extent these standards are inconsistent with regulations
published to implement such offsets under 5 U.S.C. 5514 and 31 U.S.C.
3716; offsets under 31 U.S.C. 3728 against a judgment obtained by a
debtor against the United States; offset or recoupment under common law,
state law, or federal statutes specifically prohibiting offset or
recoupment of particular types of debts or offsets in the course of
judicial proceedings, including bankruptcy.
(A) Referral for centralized administrative offset. When cost-
effective, legally enforceable non-tax debts delinquent over 180 days
that are eligible for collection through administrative offset shall be
referred to Treasury for administrative offset, unless otherwise
exempted from referral. Referrals shall include certification that the
debt is past due and legally enforceable and that TMA has complied with
all due process requirements of the statute-authorizing offset.
Administrative offset, including administrative offset against tax
refunds due debtors under 26 U.S.C. 6402, in accordance with 31 U.S.C.
3720A, shall be effected through referral for centralized administrative
offset, after debtors have been afforded at least sixty (60) days notice
required in paragraph (f)(6) of this section. Salary offsets shall be
effected through referral for centralized administrative offset, after
debtors have been afforded due process required by 5 U.S.C. 5514, in
accordance with 31 CFR 285.7. Referrals for salary offset shall include
certification that the debts are past due, legally enforceable debts and
that TMA has complied with all due process requirements under 5 U.S.C.
5514 and applicable agency regulations. The Treasury, Financial
Management Service (FMS) may waive the salary offset certification
requirement set forth in 31
[[Page 248]]
CFR 285.7, as a prerequisite to submitting the debt to FMS for offset
from other payment types. If FMS waives the certification requirement,
before an offset occurs, TMA will provide the employee with the notice
and opportunity for a hearing as required by 5 U.S.C. 5514 and
applicable regulations, and will certify to FMS that the requirements of
5 U.S.C. 5514 and applicable agency regulations have been met. TMA is
not required to duplicate notice and administrative review or salary
offset hearing opportunities before referring debts for centralized
administrative offset when the debtor has been previously given them.
(B) Referral for non-centralized administrative offset. Unless
otherwise prohibited by law, when centralized administrative offset is
not available or appropriate, past due legally enforceable non-tax-
delinquent debts that are eligible for referral may be collected through
non-centralized administrative offset through a request directly to the
payment-authorizing agency. Referrals shall include certification that
the debts are past due and that the agency has complied with due process
requirements under 31 U.S.C. 3716(a) or other applicable authority and
applicable agency regulations concerning administrative offset.
Generally, non-centralized administrative offsets will be made on an ad
hoc case-by-case basis, in cooperation with the agency certifying or
authorizing payments to the debtor.
(vi) Collection by transfer of debts to Treasury or a Treasury-
designated debt collection center for collection through cross
servicing. (A) The Director, TMA or a designee, is required to transfer
legally enforceable non-tax debts that are delinquent 180 days or more
to Treasury for collection through cross-servicing (31 U.S.C. 3711(g);
31 CFR 285.12.) Debts referred or transferred to Treasury or Treasury-
designated debt collection centers shall be serviced, collected, or
compromised, or the collection action will be suspended or terminated,
in accordance with the statutory requirements and authorities applicable
to the collection of such debts. Agencies operating Treasury-designated
debt collection centers are authorized to charge a fee for services
rendered regarding referred or transferred debts. This fee may be paid
out of amounts collected and may be added to the debt as an
administrative cost. Referrals will include certification that the debts
transferred are valid, legally enforceable debts, that there are no
legal bars to collection and that the agency has complied with all
prerequisites to a particular collection action under the applicable
laws, regulations or policies, unless the agency and Treasury agree that
Treasury will do so on behalf of the agency.
(B) The requirement of paragraph (f)(1) of this section does not
apply to any debt that:
(1) Is in litigation or foreclosure.
(2) Will be disposed of under an approved asset sale program.
(3) Has been referred to a private collection contractor for a
period of time acceptable to Treasury.
(4) Will be collected under internal offset procedures within 3
years after the debt first became delinquent.
(5) Is exempt from this requirement based on a determination by the
Secretary of the Treasury that exemption for a certain class of debt is
in the best interest of the United States.
(vii) Collection by salary offset. When a debtor is a member of the
military service or a retired member and collection by offset against
other TRICARE payments due the debtor cannot be accomplished, and there
have been no positive responses to a demand for payment, the Director,
TMA, or a designee, may refer the debt for offset from the debtor's pay
account pursuant to 37 U.S.C. 1007(c), as implemented by Volume 7A,
Chapter 50 and Volume 7B, Chapter 28 of the DoDFMR. Collection from a
Federal employee may be effected through salary offset under 5 U.S.C.
5514.
(A) For collections by salary offset the Director, TMA, or designee,
will issue written notification, as required by 5 CFR 550.1104(d) at
least 30 days before any offsets are taken. In addition, the
notification will advise the employee that if he or she retires, resigns
or his or her employment ends before collection of the debt is
completed, collection may be made from subsequent payments of any nature
due from the
[[Page 249]]
United States (e.g., final salary payment, lump-sum leave under 31
U.S.C. 3716 due the employee as of date of separation.) A debtor's
involuntary payment of all or part of a debt being collected will not be
construed as a waiver of any rights the debtor may have under 5 U.S.C.
5514 or any other provision of contract or law, unless there are
statutory or contractual provisions to the contrary or the employee's
paying agency is directed by an administrative or judicial order to
refund amounts deducted from his or her current pay. No interest will be
paid on amounts waived or determined not to be owed unless there are
statutory or contractual provisions to the contrary.
(B) Petition for hearing. The notice of the proposed offset will
advise the debtor of his or her right to petition for a hearing. The
petition for hearing must be signed by the debtor or his or her
representative and must state whether he or she is contesting debt
validity, debt amount and/or the terms of the proposed offset schedule.
It must explain with reasonable specificity all the facts, evidence and
witnesses, if any (in the case of an oral hearing and a summary of their
anticipated testimony), which the debtor believes support his or her
position, and include any supporting documentation. If contesting the
terms of the proposed offset schedule, the debtor must provide financial
information including a completed Department of Justice Financial
Statement of Debtor form (OBD-500 or other form prescribed by DOJ),
including specific details concerning income and expenses of the
employee, his or her spouse and dependents for 1-year period preceding
the debt notification and projected income and expenses for the proposed
offset period and a statement of the reason why the debtor believes the
salary offset schedule will impose extreme financial hardship. Upon
receipt of the petition for hearing, the Director, TMA, or a designee,
will complete reconsideration. If the Director, TMA, or a designee
determines that the debt amount is not owed, that a less amount is owed,
or that the terms of the employee's proposed offset schedule are
acceptable, it will advise the debtor and request that the employee
accept the results of the reconsideration in lieu of a hearing. If the
employee declines to accept the results of reconsideration in lieu of a
hearing, the debtor will be afforded a hearing. Ordinarily, a petition
for hearing and required submissions that are not timely filed, shall be
accepted after expiration of the deadline provided in the notice of the
proposed offset, only when the debtor can demonstrate to the Director,
TMA, or a designee, that the timely filing of the request was not
feasible due to extraordinary circumstances over which the appealing
party had no practical control or because of failure to receive notice
of the time limit (unless he or she was otherwise aware of it). Each
request for an exception to the timely filing requirement will be
considered on its own merits. The decision of the Director, TMA, or a
designee, on a request for an exception to the timely filing requirement
shall be final.
(C) Extreme financial hardship. The maximum authorized amount that
may be collected through involuntary salary offset is the lesser of 15
percent of the employee's disposable pay or the full amount of the debt.
An employee who has petitioned for a hearing may assert that the maximum
allowable rate of involuntary offset produces extreme financial
hardship. An offset produces an extreme financial hardship if the offset
prevents the employee from meeting the costs necessarily incurred for
the essential expenses of the employee, employee's spouse and
dependents. These essential expenses include costs incurred for food,
housing, necessary public utilities, clothing, transportation and
medical care. In determining whether the offset would prevent the
employee from meeting the essential expenses identified above, the
following shall be considered:
(1) Income from all sources of the employee, the employee's spouse,
and dependents;
(2) The extent to which assets of the employee, employee's spouse
and dependents are available to meet the offset and essential
subsistence expenses;
(3) Whether these essential subsistence expenses have been minimized
to the greatest extent possible;
(4) The extent to which the employee or the employee's spouse can
borrow
[[Page 250]]
money to meet the offset and other essential expenses; and
(5) The extent to which the employee and the employee's spouse and
dependents have other exceptional expenses that should be taken into
account and whether these expenses have been minimized.
(D) Form and content of hearings. The resolution of recoupment
claims rarely involves issues of credibility or veracity and a review of
the written record is ordinarily an adequate means to determine the
validity or amount of the debt and/or the terms of a proposed offset
schedule. The Director, TMA, or a designee, will determine whether an
oral hearing is required. A debtor who has petitioned for a hearing, but
who is not entitled to an oral hearing will be given an administrative
hearing, based on the written documentation submitted by the debtor and
the Director, TMA, or a designee. If the Director, TMA, or a designee,
determines that the debtor should be afforded the opportunity for an
oral hearing, the debtor may elect to have a hearing based on the
written record in lieu of an oral hearing. The Director, TMA, or a
designee, will provide the debtor (or his representative) notification
of the time, date and location of the oral hearing to be held if the
debtor has been afforded an oral hearing. Copies of records documenting
the debt will be provided to the debtor or his representative (if they
have not been previously provided), at least 3 calendar days prior to
the date of the oral hearing. At oral hearings, the only evidence
permitted, except oral testimony, will be that which was previously
submitted as pre-hearing submissions. At oral hearings, the debtor may
not raise any issues not previously raised with TMA. In the absence of
good cause shown, a debtor who fails to appear at an oral hearing will
be deemed to have waived the right to a hearing and salary offset may be
initiated.
(E) Costs for attendance at oral hearings. Debtors and their
witnesses will bear their own costs for attendance at oral hearings.
(F) Hearing official's decision. The Hearing Official's decision
will be in writing and will identify the documentation reviewed. It will
indicate the amount of debt that he or she determined is valid and shall
state the amount of the offset and the estimated duration of the offset.
The determination of a hearing official designated under this section is
considered an official certification regarding the existence and amount
of the debt and/or the terms of the proposed offset schedule for the
purposes of executing salary offset under 5 U.S.C. 5514. The Hearing
Official's decision must be issued at the earliest practical date, but
not later than 60 days from the date the petition for hearing is
received by the Office of General Counsel, TMA, unless the debtor
requests, and the Hearing Official grants a delay in the proceedings. If
a hearing official determines that the debt may not be collected by
salary offset, but the Director, TMA, or a designee, finds the debt is
still valid, the Director, TMA or a designee, may seek collection
through other means, including but not limited to, offset from other
payments due from the United States.
(viii) [Reserved]
(ix) Collection of installments. Debts, including interest, penalty
and administrative costs shall be collected in one lump sum whenever
possible. However, when the debtor is financially unable to pay the debt
in one lump sum, the TRICARE contractor or the Director, TMA, or
designee, may accept payment in installments. Debtors claiming that lump
sum payment will create financial hardship may be required to complete a
Department of Justice Financial Statement of Debtor form or provide
other financial information that will permit TMA to verify such
representations. TMA may also obtain credit reports to assess
installment requests. Normally, debtors will make installment payments
on a monthly basis. Installment payment shall bear a reasonable
relationship to the size of the debt and the debtor's ability to pay.
Except when a debtor can demonstrate financial hardship or another
reasonable cause exists, installment payments should be sufficient in
size and frequency to liquidate the debt in 3 years or less. (31 CFR
901.8(b)). Normally, installment payments of $75 or less will not be
accepted unless the
[[Page 251]]
debtor demonstrates financial hardship. Any installment agreement with a
debtor in which the total amount of deferred installments will exceed
$750, should normally include an executed promissory agreement. Copies
of installment agreements will be retained in the contractor's or TMA,
Office of General Counsel's files.
(x) Interest, penalties, and administrative costs. Title 31 U.S.C.
3717 and the Federal Claims Collection Standards, 31 CFR 901.9, require
the assessment of interest, penalty and administrative costs on
delinquent debts. Interest shall accrue from the date the initial debt
notification is mailed to the debtor. The rate of interest assessed
shall be the rate of the current value of funds to the United States
Treasury (the Treasury tax and loan account rate). The collection of
interest on the debt or any portion of the debt, which is paid within 30
days after the date on which interest begins to accrue, shall be waived.
The Director, TMA, or designee, may extend this 30-day period on a case-
by-case basis, if it reasonably determines that such action is
appropriate. The rate of interest as initially assessed shall remain
fixed for the duration of the indebtedness; except that where the debtor
has defaulted on a repayment agreement and seeks to enter into a new
agreement, a new interest rate may be set which reflects the current
value of funds to the Treasury at the time the new agreement is
executed. Interest shall not be compounded; that is, interest shall not
be charged on interest, penalties, or administrative costs required by
this section. However, if a debtor defaults on a previous repayment
agreement, charges that accrued but were not collected under the
defaulted agreement, shall be added to the principal under the new
repayment agreement. The collection of interest, penalties and
administrative costs may be waived in whole or in part as a part of the
compromise of a debt as provided in paragraph (g) of this section. In
addition, the Director, TMA, or designee may waive in whole or in part,
the collection of interest, penalties, or administrative costs assessed
herein if he or she determines that collection would be against equity
and good conscience and not in the best interest of the United States.
Some situations in which a waiver may be appropriate include:
(A) Waiver of interest consistent with 31 CFR 903.2(c)(2) in
connection with a suspension of collection when a TRICARE appeal is
pending under Sec. 199.10 of this part where there is a substantial
issue of fact in dispute.
(B) Waiver of interest where the original debt arose through no
fault or lack of good faith on the part of the debtor and the collection
of interest would impose a financial hardship or burden on the debtor.
Some examples in which such a waiver would be appropriate include: A
debt arising when a TRICARE beneficiary in good faith files and is paid
for a claim for medical services or supplies, which are later determined
not to be covered benefits, or a debt arising when a TRICARE beneficiary
is overpaid as the result of a calculation error on the part of the
TRICARE contractor or TMA.
(C) Waiver of interest where there has been an agreement to repay a
debt in installments, there is no indication of fault or lack of good
faith on the part of the debtor, and the amount of interest is so large
in relation to the size of the installments that the debtor can
reasonably afford to pay, that it is likely the debt will never be
repaid in full. When a debt is paid in installments, the installment
payments first will be applied to the payment of outstanding penalty and
administrative cost charges, second, to accrued interest and then to
principal. Administrative costs incurred as the result of a debt
becoming delinquent (as defined in paragraph (f)(2)(iii) of this
section) shall be assessed against a debtor. These administrative costs
represent the additional costs incurred in processing and handling the
debt because it became delinquent. The calculation of administrative
costs should be based upon cost analysis establishing an average of
actual additional costs incurred in processing and handling claims
against other debtors in similar stages of delinquency. A penalty
charge, not exceeding six percent a year, shall be assessed on the
amount due on a debt that is delinquent for more than 90 days. This
charge, which
[[Page 252]]
need not be calculated until the 91st day of delinquency, shall accrue
from the date that the debt became delinquent.
(xi) Referral to private collection agencies. TMA shall use
government-wide debt collection contracts to obtain debt collection
services provided by private contractors in accordance with 31 CFR
901.5(b).
(xii) Reporting delinquent debts to credit reporting agencies.
Delinquent consumer debts shall be reported to credit reporting
agencies. Delinquent debts are debts which are not paid or for which
satisfactory payment arrangements are not made by the due date specified
in the initial debt notification letter, or those for which the debtor
has entered into a written payment agreement and installment payments
are past due 30 days or longer. Such referrals shall comply with the
Bankruptcy Code and the Privacy Act of 1974, 5 U.S.C. 552a, as amended.
The provisions of the Privacy Act do not apply to credit bureaus (31 CFR
901.4(1)). There is no requirement to duplicate the notice and review
opportunities before referring debts to credit bureaus. Debtors will be
advised of the specific information to be transmitted (i.e., name,
address, and taxpayer identification number, information about the
debt). Procedures developed for such referrals must ensure that an
accounting of the disclosures shall be kept which is available to the
debtor; that the credit reporting agencies are provided with corrections
and annotations of disagreements of the debtor; and that reasonable
efforts are made to ensure that the information to be reported is
accurate, complete, timely and relevant. When requested by a credit-
reporting agency, verification of the information disclosed will be
provided promptly. Once a claim has been reviewed and determined to be
valid, a complete explanation of the claim will be given the debtor.
When the claim is overdue, the individual will be notified in writing
that payment is overdue; that within not less than 60 days, disclosure
of the claim shall be made to a consumer reporting agency unless
satisfactory payment arrangements are made, or unless the debtor
requests an administrative review and demonstrates some basis on which
the debt is legitimately disputed; and of the specific information to be
disclosed to the consumer reporting agency. The information to be
disclosed to the credit reporting agency will be limited to information
necessary to establish the identity of the debtor, including name,
address and taxpayer identification number; the amount, status and
history of the claim; and the agency or program under which the claim
arose. Reasonable action will be taken to locate an individual for whom
a current address is not available. The requirements of this section do
not apply to commercial debts, although commercial debts shall be
reported to commercial credit bureaus. Treasury will report debts
transferred to it for collection to credit reporting agencies on behalf
of the Director, TMA, or a designee.
(xiii) Use and disclosure of mailing addresses. In attempting to
locate a debtor in order to collect or compromise a debt under this
section, the Director, TMA, or a designee, may send a written request to
the Secretary of the Treasury, or a designee, for current address
information from records of the Internal Revenue Service. TMA may
disclose mailing addresses obtained under this authority to other
agencies and to collection agencies for collection purposes.
(g) Compromise, suspension or termination of collection actions
arising under the Federal Claims Collection Act--(1) Basic
considerations. Federal claims against the debtor and in favor of the
United States arising out of the administration of TRICARE may be
compromised or collection action taken thereon may be suspended or
terminated in compliance with the Federal Claims Collection Act, 31
U.S.C. 3711, as implemented by the Federal Claims Collection Standards,
31 CFR parts 900-904. The provisions concerning compromise, suspension
or termination of collection activity pursuant to 31 U.S.C. 3711 apply
to debts, which do not exceed $100,000 or any higher amount authorized
by the Attorney General, exclusive of interest, penalties, and
administrative costs, after deducting the amount of partial payments or
collections, if any. If, after deducting the
[[Page 253]]
amount of any partial payments or collections, the principal amount of a
debt exceeds $100,000, or any higher amount authorized by the Attorney
General, exclusive of interest, penalties and administrative costs, the
authority to suspend or terminate rests solely with the DOJ.
(2) Authority. TRICARE contractors are not authorized to compromise
or to suspend or terminate collection action on TRICARE claims. Only the
Director, TMA, or designee or Uniformed Services claims officers acting
under the provisions of their own regulations are so authorized.
(3) Basis for compromise. A compromise should be for an amount that
bears a reasonable relation to the amount that can be recovered by
enforced collection procedures, with regard to the exemptions available
to the debtor and the time collection will take. A claim may be
compromised hereunder if the government cannot collect the full amount
if:
(i) The debtor or the estate of a debtor does not have the present
or prospective ability to pay the full amount within a reasonable time;
(ii) The cost of collecting the claim does not justify enforced
collection of the full amount; or
(iii) The government is unable to enforce collection of the full
amount within a reasonable time by enforced collection proceedings; or
(iv) There is significant doubt concerning the Government's ability
to prove its case in court for the full amount claimed; or
(v) The cost of collecting the claim does not justify enforced
collection of the full amount.
(4) Basis for suspension. Collection action may be suspended for the
following reasons if future collection action may be sufficiently
productive to justify periodic review and action on the claim,
considering its size and the amount, which may be realized thereon:
(i) The debtor cannot be located; or
(ii) The debtor's financial condition is expected to improve; or
(iii) The debtor is unable to make payments on the government's
claim or effect a compromise at the time, but the debtor's future
prospects justify retention of the claim for periodic review and action
and;
(A) The applicable statute of limitations has been tolled or started
running anew; or
(B) Future collections can be effected by administrative offset,
notwithstanding the expiration of the applicable statute of limitations
for litigation of claims with due regard to the 10-year limitation for
administrative offset under 31 U.S.C. 3716(e)(1); or
(C) The debtor agrees to pay interest on the amount of the debt on
which collection action will be temporarily suspended and such temporary
suspension is likely to enhance the debtor's ability fully to pay the
principal amount of the debt with interest at a later date.
(iv) Consideration may be given by the Director, TMA, or designee to
suspend collection action pending action on a request for a review of
the government's claim against the debtor or pending an administrative
review under Sec. 199.10 of this part of any TRICARE claim or claims
directly involved in the government's claim against the debtor.
Suspension under this paragraph will be made on a case-by-case basis as
to whether:
(A) There is a reasonable possibility that the debt (in whole or in
part) will be found not owing from the debtor;
(B) The government's interest would be protected if suspension were
granted by reasonable assurance that the debt would be recovered if the
debtor does not prevail; and
(C) Collection of the debt will cause undue hardship.
(5) Collection action may be terminated for one or more of the
following reasons:
(i) TMA cannot collect or enforce collection of any substantial
amount through its own efforts or the efforts of others, including
consideration of the judicial remedies available to the government, the
debtor's future financial prospects, and the exemptions available to the
debtor under state and federal law;
(ii) The debtor cannot be located, and either;
(iii) The costs of collection are anticipated to exceed the amount
recoverable; or
[[Page 254]]
(iv) It is determined that the debt is legally without merit or
enforcement of the debt is barred by any applicable statute of
limitations; or
(v) The debt cannot be substantiated; or
(vi) The debt against the debtor has been discharged in bankruptcy.
Collection activity may be continued subject to the provisions of the
Bankruptcy Code, such as collection of any payments provided under a
plan of reorganization or in cases when TMA did not receive notice of
the bankruptcy proceedings.
(6) In determining whether the debt should be compromised, suspended
or terminated, the responsible TMA collection authority will consider
the following factors:
(i) Age and health of the debtor; present and potential income;
inheritance prospects; the possibility that assets have been concealed
or improperly transferred by the debtor; and the availability of assets
or income which may be realized by enforced collection proceedings;
(ii) Applicability of exemptions available to a debtor under state
or federal law;
(iii) Uncertainty as to the price which collateral or other property
may bring at a forced sale;
(iv) The probability of proving the claim in court because of legal
issues involved or because of a bona fide dispute of the facts; the
probability of full or partial recovery; the availability of necessary
evidence and related pragmatic considerations. Debtors may be required
to provide a completed Department of Justice Financial Statement of
Debtor form (OBD-500 or such other form that DOJ shall prescribe) or
other financial information that will permit TMA to verify debtors'
representations. TMA may obtain credit reports or other financial
information to enable it independently to verify debtors'
representations.
(7) Payment of compromised claims. (i) Time and manner. Compromised
claims are to be paid in one lump sum whenever possible. However, if
installment payments of a compromised claim are necessary, a legally
enforceable compromise agreement must be obtained. Payment of the amount
that TMA has agreed to accept as a compromise in full settlement of a
TRICARE claim must be made within the time and in the manner prescribed
in the compromise agreement. Any such compromised amount is not settled
until full payment of the compromised amount has been made within the
time and manner prescribed. Compromise agreements must provide for the
reinstatement of the prior indebtedness, less sums paid thereon, and
acceleration of the balance due upon default in the payment of any
installment.
(ii) Failure to pay the compromised amount. Failure of any debtor to
make payment as provided in the compromise agreement will have the
effect of reinstating the full amount of the original claim, less any
amounts paid prior to default.
(iii) Effect of compromise, waiver, suspension or termination of
collection action. Pursuant to the Internal Revenue Code, 26 U.S.C.
6050P, compromises and terminations of undisputed debts totaling $600 or
more for the year will be reported to the Internal Revenue Service in
the manner prescribed. Amounts, other than those discharged in
bankruptcy, will be included in the debtor's gross income for that year.
Any action taken under paragraph (g) of this section regarding the
compromise of a federal claim, or waiver or suspension or termination of
collection action on a federal claim is not an initial determination for
the purposes of the appeal procedures in Sec. 199.10.
(h) Referrals for collection--(1) Prompt referral. Federal claims of
$2,500, exclusive of interest, penalties and administrative costs, or
such other amount as the Attorney General shall from time to time
prescribe on which collection action has been taken under the provisions
of this section which cannot be collected or compromised or on which
collection action cannot be suspended or terminated as provided herein,
will be promptly referred to the Department of Justice for litigation in
accordance with 31 CFR part 904. Such referrals shall be made as early
as possible consistent with aggressive collection action made by TRICARE
contractors and TMA. Referral will be made
[[Page 255]]
with sufficient time to bring timely suit against the debtor. Referral
shall be made by submission of a completed Claims Collection Litigation
Report (CCLR), accompanied by a signed Certificate of Indebtedness.
Claims of less than the minimum amount shall not be referred unless
litigation to collect such smaller claims is important to ensure
compliance with TRICARE's policies or programs; the claim is being
referred solely for the purpose of securing a judgment against the
debtor, which will be filed as a lien against the debtor's property
pursuant to 28 U.S.C. 3201 and returned to the referring office for
enforcement; or the debtor has the clear ability to pay the claim and
the Government effectively can enforce payment, with due regard for the
exemptions available to the debtor under state and Federal law and
judicial remedies available to the Government.
(2) Preservation of evidence. The Director, TMA, or a designee will
take such action as is necessary to ensure that all files, records and
exhibits on claims referred, hereunder, are properly preserved.
(i) Claims involving indication of fraud, filing of false claims or
misrepresentation. Any case in which there is an indication of fraud,
the filing of a false claim or misrepresentation on the part of the
debtor or any party having an interest in the claim, shall be promptly
referred to the Director, TMA, or designee. The Director, TMA, or a
designee, will investigate and evaluate the case and either refer the
case to an appropriate investigative law enforcement agency or return
the claim for other appropriate administrative action, including
collection action under this section. Payment on all TRICARE beneficiary
or provider claims in which fraud, filing false claims or
misrepresentation is suspected will be suspended until the Director,
TMA, or designee, authorizes payment or denial of the claims. Collection
action on all claims in which a suspicion of fraud, misrepresentation or
filing false claims arises, will be suspended pending referral to the
appropriate law enforcement agencies by the Director, TMA, or a
designee. Only the Department of Justice has authority to compromise,
suspend or terminate collection of such debts.
(ii) [Reserved]
[73 FR 71547, Nov. 25, 2008, as amended at 77 FR 38176, June 27, 2012;
82 FR 45447, Sept. 29, 2017]
Sec. 199.12 Third party recoveries.
(a) General. This section deals with the right of the United States
to recover from third-parties the costs of medical care furnished to or
paid on behalf of TRICARE beneficiaries. These third-parties may be
individuals or entities that are liable for tort damages to the injured
TRICARE beneficiary or a liability insurance carrier covering the
individual or entity. These third-parties may also include other
entities who are primarily responsible to pay for the medical care
provided to the injured beneficiary by reason of an insurance policy,
workers' compensation program or other source of primary payment.
Authority--(1) Third-party payers. This part implements the
provisions of 10 U.S.C. 1095b which, in general, allow the Secretary of
Defense to authorize certain TRICARE claims to be paid, even though a
third-party payer may be primary payer, with authority to collect from
the third-party payer the TRICARE costs incurred on behalf of the
beneficiary. (See Sec. 199.2 for definition of ``third-party payer.'')
Therefore, 10 U.S.C. 1095b establishes the statutory obligation of
third-party payers to reimburse the United States the costs incurred on
behalf of TRICARE beneficiaries who are also covered by the third-party
payer's plan.
(2) Federal Medical Care Recovery Act--(i) In general. In many cases
covered by this section, the United States has a right to collect under
both 10 U.S.C. 1095b and the Federal Medical Care Recovery Act (FMCRA),
Public Law 87-693 (42 U.S.C. 2651 et. seq.). In such cases, the
authority is concurrent and the United States may pursue collection
under both statutory authorities.
(ii) Cases involving tort liability. In cases in which the right of
the United States to collect from an automobile liability insurance
carrier is premised on establishing some tort liability on some third
person, matters regarding the determination of such tort liability
[[Page 256]]
shall be governed by the same substantive standards as would be applied
under the FMCRA including reliance on state law for determinations
regarding tort liability. In addition, the provisions of 28 CFR part 43
(Department of Justice regulations pertaining to the FMCRA) shall apply
to claims made under the concurrent authority of the FMCRA and 10 U.S.C.
1095b. All other matters and procedures concerning the right of the
United States to collect shall, if a claim is made under the concurrent
authority of the FMCRA and this section, be governed by 10 U.S.C. 1095b
and this part.
(c) Appealability. This section describes the procedures to be
followed in the assertion and collection of third-party recovery claims
in favor of the United States arising from the operation of TRICARE.
Actions taken under this section are not initial determinations for the
purpose of the appeal procedures of Sec. 199.10 of this part. However,
the proper exercise of the right to appeal benefit or provider status
determinations under the procedures set forth in Sec. 199.10 may affect
the processing of federal claims arising under this section. Those
appeal procedures afford a TRICARE beneficiary or participating provider
an opportunity for administrative appellate review in cases in which
benefits have been denied and in which there is a significant factual
dispute. For example, a TRICARE contractor may deny payment for services
that are determined to be excluded as TRICARE benefits because they are
found to be not medically necessary. In that event the TRICARE
contractor will offer an administrative appeal as provided in Sec.
199.10 of this part on the medical necessity issue raised by the adverse
benefit determination. If the care in question results from an
accidental injury and if the appeal results in a reversal of the initial
determination to deny the benefit, a third-party recovery claim may
arise as a result of the appeal decision to pay the benefit. However, in
no case is the decision to initiate such a claim itself appealable under
Sec. 199.10.
(d) Statutory obligation of third-party payer to pay--(1) Basic
Rule. Pursuant to 10 U.S.C. 1095b, when the Secretary of Defense
authorizes certain TRICARE claims to be paid, even though a third-party
payer may be primary payer (as specified under Sec. 199.8(c)(2)), the
right to collect from a third-party payer the TRICARE costs incurred on
behalf of the beneficiary is the same as exists for the United States to
collect from third-party payers the cost of care provided by a facility
of the uniformed services under 10 U.S.C. 1095 and part 220 of this
title. Therefore the obligation of a third-party payer to pay is to the
same extent that the beneficiary would be eligible to receive
reimbursement or indemnification from the third-party payer if the
beneficiary were to incur the costs on the beneficiary's own behalf.
(2) Application of cost shares. If the third-party payer's plan
includes a requirement for a deductible or copayment by the beneficiary
of the plan, then the amount the United States may collect from the
third-party payer is the cost of care incurred on behalf of the
beneficiary less the appropriate deductible or copayment amount.
(3) Claim from the United States exclusive. The only way for a
third-party payer to satisfy its obligation under 10 U.S.C. 1095b is to
pay the United States or authorized representative of the United States.
Payment by a third-party payer to the beneficiary does not satisfy 10
U.S.C. 1095b.
(4) Assignment of benefits not necessary. The obligation of the
third-party to pay is not dependent upon the beneficiary executing an
assignment of benefits to the United States.
(e) Exclusions impermissible--(1) Statutory requirement. With the
same right to collect from third-party payers as exists under 10 U.S.C.
1095(b), no provision of any third-party payer's plan having the effect
of excluding from coverage or limiting payment for certain care if that
care is provided or paid by the United States shall operate to prevent
collection by the United States.
(2) Regulatory application. No provision of any third-party payer's
plan or program purporting to have the effect of excluding or limiting
payment for certain care that would not be given
[[Page 257]]
such effect under the standards established in part 220 of this title to
implement 10 U.S.C. 1095 shall operate to exclude or limit payment under
10 U.S.C. 1095b or this section.
(f) Records available. When requested, TRICARE contractors or other
representatives of the United States shall make available to
representatives of any third-party payer from which the United States
seeks payment under 10 U.S.C. 1095b, for inspection and review,
appropriate health care records (or copies of such records) of
individuals for whose care payment is sought. Appropriate records which
will be made available are records which document that the TRICARE costs
incurred on behalf of beneficiaries which are the subject of the claims
for payment under 10 U.S.C. 1095b were incurred as claimed and the
health care service were provided in a manner consistent with
permissible terms and conditions of the third-party payer's plan. This
is the sole purpose for which patient care records will be made
available. Records not needed for this purpose will not be made
available.
(g) Remedies. Pursuant to 10 U.S.C. 1095b, when the Director,
TRICARE Management Activity, or a designee, authorizes certain TRICARE
claims to be paid, even though a third-party payer may be primary payer,
the right to collect from a third-party payer the TRICARE costs incurred
on behalf of the beneficiary is the same as exists for the United States
to collect from third-party payers the cost of care provided by a
facility of the uniformed services under 10 U.S.C. 1095.
(1) This includes the authority under 10 U.S.C. 1095(e)(1) for the
United States to institute and prosecute legal proceedings against a
third-party payer to enforce a right of the United States under 10
U.S.C. 1095b and this section.
(2) This also includes the authority under 10 U.S.C. 1095(e)(2) for
an authorized representative of the United States to compromise, settle
or waive a claim of the United States under 10 U.S.C. 1095b and this
section.
(3) The authorities provided by the Federal Claims Collection Act of
1966, as amended (31 U.S.C. 3701 et. seq.) and any implementing
regulations (including Sec. 199.11) regarding collection of
indebtedness due the United States shall also be available to effect
collections pursuant to 10 U.S.C. 1095b and this section.
(h) Obligations of beneficiaries. To insure the expeditious and
efficient processing of third-party payer claims, any person furnished
care and treatment under TRICARE, his or her guardian, personal
representative, counsel, estate, dependents or survivors shall be
required:
(1) To provide information regarding coverage by a third-party payer
plan and/or the circumstances surrounding an injury to the patient as a
conditional precedent of the processing of a TRICARE claim involving
possible third-party payer coverage.
(2) To furnish such additional information as may be requested
concerning the circumstances giving rise to the injury or disease for
which care and treatment are being given and concerning any action
instituted or to be instituted by or against a third person; and,
(3) To cooperate in the prosecution of all claims and actions by the
United States against such third person.
(i) Responsibility for recovery. The Director, TRICARE Management
Activity, or a designee, is responsible for insuring that TRICARE claims
arising under 10 U.S.C. 1095b and this section (including claims
involving the FMCRA) are properly referred to and coordinated with
designated claims authorities of the uniformed services who shall assert
and recover TRICARE costs incurred on behalf of beneficiaries.
Generally, claims arising under this section will be processed as
follows:
(1) Identification and referral. In most cases where civilian
providers provide medical care and payment for such care has been by a
TRICARE contractor, initial identification of potential third-party
payers will be by the TRICARE contractor. In such cases, the TRICARE
contractor is responsible for conducting a preliminary investigation and
referring the case to designated appropriate claims authorities of the
Uniformed Services.
(2) Processing TRICARE claims. When the TRICARE contractor initially
identifies a claim as involving a potential
[[Page 258]]
third-party payer, it shall request additional information concerning
the circumstances of the injury or disease and/or the identify of any
potential third-party payer from the beneficiary or other responsible
party unless adequate information is submitted with the claim. The
TRICARE claim will be suspended and no payment issued pending receipt of
the requested information. If the requested information is not received,
the claim will be denied. A TRICARE beneficiary may expedite the
processing of his or her TRICARE claim by submitting appropriate
information with the first claim for treatment of an accidental injury.
Third-party payer information normally is required only once concerning
any single accidental injury on episode of care. Once the third-party
payer information pertaining to a single incident or episode of care is
received, subsequent claims associated with the same incident or episode
of care may be processed to payment in the usual manner. If, however,
the requested third-party payer information is not received, subsequent
claims involving the same incident or episode of care will be suspended
or denied as stated above.
(3) Ascertaining total potential liability. It is essential that the
appropriate claims responsible for asserting the claim against the
third-party payer receive from the TRICARE contractor a report of all
amounts expended by the United States for care resulting from the
incident upon which potential liability in the third party is based
(including amounts paid by TRICARE for both inpatient and outpatient
care). Prior to assertion and final settlement of a claim, it will be
necessary for the responsible claims authority to secure from the
TRICARE contractor updated information to insure that all amounts
expended under TRICARE are included in the government's claim. It is
equally important that information on future medical payments be
obtained through the investigative process and included as a part of the
government's claim. No TRICARE-related claim will be settled,
compromised or waived without full consideration being given to the
possible future medical payment aspects of the individual case.
(j) Reporting requirements. Pursuant to 10 U.S.C. 1079a, all refunds
and other amounts collected in the administration of TRICARE shall be
credited to the appropriation available for that program for the fiscal
year in which the refund or amount is collected. Therefore, the
Department of Defense requires an annual report stating the number and
dollar amount of claims asserted against, and the number and dollar
amount of recoveries from third-party payers (including FMCRA
recoveries) arising from the operation of the TRICARE. To facilitate the
preparation of this report and to maintain program integrity, the
following reporting requirements are established:
(1) TRICARE contractors. Each TRICARE contractor shall submit on or
before January 31 of each year an annual report to the Director, TRICARE
Management Activity, or a designee, covering the 12 months of the
previous calendar year. This report shall contain, as a minimum, the
number and total dollar of cases of potential third-party payer/FMCRA
liability referred to uniformed services claims authorities for further
investigation and collection. These figures are to be itemized by the
states and uniformed services to which the cases are referred.
(2) Uniformed Services. Each uniformed service will submit to the
Director, TRICARE Management Activity, or designee, an annual report
covering the 12 calendar months of the previous year, setting forth, as
a minimum, the number and total dollar amount of cases involving TRICARE
payments received from TRICARE contractors, the number and dollar amount
of cases involving TRICARE payments received from other sources, and the
number and dollar amount of claims actually asserted against, and the
dollar amount of recoveries from, third-payment payers or under the
FMCRA. The report, itemized by state and foreign claims jurisdictions,
shall be provided no later than February 28 of each year.
(3) Implementation of the reporting requirements. The Director,
TRICARE Management Activity, or a designee
[[Page 259]]
shall issue guidance for implementation of the reporting requirements
prescribed by this section.
[68 FR 6619, Feb. 10, 2003]
Sec. 199.13 TRICARE Dental Program.
(a) General provisions--(1) Purpose. This section prescribes
guidelines and policies for the delivery and administration of the
TRICARE Dental Program (TDP) of the Uniformed Services of the Army, the
Navy, the Air Force, the Marine Corps, the Coast Guard, the Commissioned
Corps of the U.S. Public Health Service (USPHS) and the National Oceanic
and Atmospheric Administration (NOAA) Corps. The TDP is a premium based
indemnity dental insurance coverage plan that is available to specified
categories of individuals who are qualified for these benefits by virtue
of their relationship to one of the seven (7) Uniformed Services and
their voluntary decision to accept enrollment in the plan and cost share
(when applicable) with the Government in the premium cost of the
benefits. The TDP is authorized by 10 U.S.C. 1076a, TRICARE dental
program, and this section was previously titled the ``Active Duty
Dependents Dental Plan''. The TDP incorporates the former 10 U.S.C.
1076b, Selected Reserve dental insurance, and the section previously
titled the ``TRICARE Selected Reserve Dental Program'', Sec. 199.21.
(2) Applicability--(i) Geographic scope. (A) The TDP is applicable
geographically within the fifty (50) States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, and the
U.S. Virgin Islands. These areas are collectively referred to as the
``CONUS (or Continental United States) service area''.
(B) Extension of the TDP to areas outside the CONUS service area. In
accordance with the authority cited in 10 U.S.C. 1076a(h), the Assistant
Secretary of Defense (Health Affairs) (ASD(HA)) may extend the TDP to
areas other than those areas specified in paragraph (a)(2)(i)(A) of this
section for the eligible members and eligible dependents of members of
the Uniformed Services. These areas are collectively referred to as the
``OCONUS (or outside the Continental United States) service area''. In
extending the TDP outside the CONUS service area, the ASD(HA), or
designee, is authorized to establish program elements, methods of
administration and payment rates and procedures to providers that are
different from those in effect for the CONUS service area to the extent
the ASD(HA), or designee, determines necessary for the effective and
efficient operation of the TDP. This includes provisions for
preauthorization of care if the needed services are not available in a
Uniformed Service overseas dental treatment facility and payment by the
Department of certain cost-shares (or co-payments) and other portions of
a provider's billed charges for certain beneficiary categories. Other
differences may occur based on limitations in the availability and
capabilities of the Uniformed Service overseas dental treatment facility
and a particular nation's civilian sector providers in certain areas.
These differences include varying licensure and certification
requirements of OCONUS providers, Uniformed Service provider selection
criteria and local results of provider selection, referral, beneficiary
pre-authorization and marketing procedures, and care for beneficiaries
residing in distant areas. The Director, Office of Civilian Health and
Medical Program of the Uniformed Services (OCHAMPUS) shall issue
guidance, as necessary, to implement the provisions of paragraph
(a)(2)(i)(B). Beneficiaries will be eligible for the same TDP benefits
in the OCONUS service area although services may not be available or
accessible in all OCONUS countries.
(ii) Agency. The provisions of this section apply throughout the
Department of Defense (DoD), the United States Coast Guard, the USPHS
and NOAA.
(iii) Exclusion of benefit services performed in military dental
care facilities. Except for emergency treatment, dental care provided
outside the United States, services incidental to noncovered services,
and services provided under paragraph (a)(2)(iv), dependents of active
duty, Selected Reserve and Individual Ready Reserve members enrolled in
the TDP may not obtain those services that are benefits of the TDP in
military dental care facilities, as long
[[Page 260]]
as those covered benefits are available for cost-sharing under the TDP.
Enrolled dependents of active duty, Selected Reserve and Individual
Ready Reserve members may continue to obtain noncovered services from
military dental care facilities subject to the provisions for space
available care.
(iv) Exception to the exclusion of services performed in military
dental care facilities.
(A) Dependents who are 12 years of age or younger and are covered by
a dental plan established under this section may be treated by
postgraduate dental residents in a dental treatment facility of the
uniformed services under a graduate dental education program accredited
by the American Dental Association if
(1) Treatment of pediatric dental patients is necessary in order to
satisfy an accreditation standard of the American Dental Association
that is applicable to such program, or training in pediatric dental care
is necessary for the residents to be professionally qualified to provide
dental care for dependent children accompanying members of the uniformed
services outside the United States; and
(2) The number of pediatric patients at such facility is
insufficient to support satisfaction of the accreditation or
professional requirements in pediatric dental care that apply to such
programs or students.
(B) The total number of dependents treated in all facilities of the
uniformed services under paragraph (a)(2)(iv) in a fiscal year may not
exceed 2,000.
(3) Authority and responsibility--(i) Legislative authority--(A)
Joint regulations. 10 U.S.C. 1076a authorized the Secretary of Defense,
in consultation with the Secretary of Health and Human Services, and the
Secretary of Transportation, to prescribe regulations for the
administration of the TDP.
(B) Administration. 10 U.S.C. 1073 authorizes the Secretary of
Defense to administer the TDP for the Army, Navy, Air Force, and Marine
Corps under DoD jurisdiction, the Secretary of Transportation to
administer the TDP for the Coast Guard, when the Coast Guard is not
operating as a service in the Navy, and the Secretary of Health and
Human Services to administer the TDP for the Commissioned Corps of the
USPHS and the NOAA Corps.
(ii) Organizational delegations and assignments--(A) Assistant
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to
provide policy guidance, management control, and coordination as
required for all DoD health and medical resources and functional areas
including health benefit programs. Implementing authority is contained
in 32 CFR part 367. For additional implementing authority see Sec.
199.1. Any guidelines or policy necessary for implementation of this
Sec. 199.13 shall be issued by the Director, OCHAMPUS.
(B) Evidence of eligibility. DoD, through the Defense Enrollment
Eligibility Reporting System (DEERS), is responsible for establishing
and maintaining a listing of persons eligible to receive benefits under
the TDP.
(4) Preemption of State and local laws. (i) Pursuant to 10 U.S.C.
1103 and section 8025 (fourth proviso) of the Department of Defense
Appropriations Act, 1994, DoD has determined that, in the administration
of 10 U.S.C. chapter 55, preemption of State and local laws relating to
health insurance, prepaid health plans, or other health care delivery or
financing methods is necessary to achieve important Federal interests,
including, but not limited to, the assurance of uniform national health
programs for Uniformed Service beneficiaries and the operation of such
programs at the lowest possible cost to DoD, that have a direct and
substantial effect on the conduct of military affairs and national
security policy of the United States. This determination is applicable
to the dental services contracts that implement this section.
(ii) Based on the determination set forth in paragraph (a)(4)(i) of
this section, any State or local law relating to health or dental
insurance, prepaid health or dental plans, or other health or dental
care delivery or financing methods is preempted and does not apply in
connection with the TDP contract. Any such law, or regulation pursuant
to such law, is without any force
[[Page 261]]
or effect, and State or local governments have no legal authority to
enforce them in relation to the TDP contract. (However, DoD may, by
contract, establish legal obligations on the part of the dental plan
contractor to conform with requirements similar or identical to
requirements of State or local laws or regulations.)
(iii) The preemption of State and local laws set forth in paragraph
(a)(4)(ii) of this section includes State and local laws imposing
premium taxes on health or dental insurance carriers or underwriters or
other plan managers, or similar taxes on such entities. Such laws are
laws relating to health insurance, prepaid health plans, or other health
care delivery or financing methods, within the meaning of the statutes
identified in paragraph (a)(4)(i) of this section. Preemption, however,
does not apply to taxes, fees, or other payments on net income or profit
realized by such entities in the conduct of business relating to DoD
health services contracts, if those taxes, fees, or other payments are
applicable to a broad range of business activity. For purposes of
assessing the effect of Federal preemption of State and local taxes and
fees in connection with DoD health and dental services contracts,
interpretations shall be consistent with those applicable to the Federal
Employees Health Benefits Program under 5 U.S.C. 8909(f).
(5) Plan funds--(i) Funding sources. The funds used by the TDP are
appropriated funds furnished by the Congress through the annual
appropriation acts for DoD, the Department of Health and Human Services
and the Department of Transportation and funds collected by the
Uniformed Services or contractor through payroll deductions or through
direct billing as premium shares from beneficiaries.
(ii) Disposition of funds. TDP funds are paid by the Government (or
in the case of direct billing, by the beneficiary) as premiums to an
insurer, service, or prepaid dental care organization under a contract
negotiated by the Director, OCHAMPUS, or a designee, under the
provisions of the Federal Acquisition Regulation (FAR) (48 CFR chapter
1).
(iii) Plan. The Director, OCHAMPUS, or designee provides an
insurance policy, service plan, or prepaid contract of benefits in
accordance with those prescribed by law and regulation; as interpreted
and adjudicated in accord with the policy, service plan, or contract and
a dental benefits brochure; and as prescribed by requirements of the
dental plan contractor's contract with the Government.
(iv) Contracting out. The method of delivery of the TDP is through a
competitively procured contract. The Director, OCHAMPUS, or a designee,
is responsible for negotiating, under provisions of the FAR, a contract
for dental benefits insurance or prepayment that includes responsibility
for:
(A) Development, publication, and enforcement of benefit policy,
exclusions, and limitations in compliance with the law, regulation, and
the contract provisions;
(B) Adjudicating and processing claims; and conducting related
supporting activities, such as enrollment, disenrollment, collection of
premiums, eligibility verification, provider relations, and beneficiary
communications.
(6) Role of Health Benefits Advisor (HBA). The HBA is appointed
(generally by the commander of an Uniformed Services medical treatment
facility) to serve as an advisor to patients and staff in matters
involving the TDP. The HBA may assist beneficiaries in applying for
benefits, in the preparation of claims, and in their relations with
OCHAMPUS and the dental plan contractor. However, the HBA is not
responsible for the TDP's policies and procedures and has no authority
to make benefit determinations or obligate the TDP's funds. Advice given
to beneficiaries by HBAs as to determination of benefits or level of
payment is not binding on OCHAMPUS or the dental plan contractor.
(7) Right to information. As a condition precedent to the provision
of benefits hereunder, the Director, OCHAMPUS, or designee, shall be
entitled to receive information from an authorized provider or other
person, institution, or organization (including a local, State, or
United States Government agency) providing services or supplies to the
beneficiary for which
[[Page 262]]
claims for benefits are submitted. While establishing enrollment and
eligibility, benefits, and benefit utilization and performance reporting
information standards, the Government has established and does maintain
a system of records for dental information under the TDP. By contract,
the Government audits the adequacy and accuracy of the dental plan
contractor's system of records and requires access to information and
records to meet plan accountabilities, to assist in contractor
surveillance and program integrity investigations and to audit OCONUS
financial transactions where the Department has a financial stake. Such
information and records may relate to attendance, testing, monitoring,
examination, or diagnosis of dental disease or conditions; or treatment
rendered; or services and supplies furnished to a beneficiary; and shall
be necessary for the accurate and efficient administration and payment
of benefits under this plan. To assist in claims adjudication, grievance
and fraud investigations, and the appeals process, and before an interim
or final determination can be made on a claim of benefits, a beneficiary
or active duty, Selected Reserve or individual Ready Reserve member must
provide particular additional information relevant to the requested
determination, when necessary. Failure to provide the requested
information may result in denial of the claim and inability to
effectively investigate the grievance or fraud or process the appeal.
The recipient of such information shall in every case hold such records
confidential except when:
(i) Disclosure of such information is necessary to the determination
by a provider or the dental plan contractor of beneficiary enrollment or
eligibility for coverage of specific services;
(ii) Disclosure of such information is authorized specifically by
the beneficiary;
(iii) Disclosure is necessary to permit authorized Government
officials to investigate and prosecute criminal actions;
(iv) Disclosure constitutes a routine use of a routine use of a
record which is compatible with the purpose for which it was collected.
This includes a standard and acceptable business practice commonly used
among dental insurers which is consistent with the principle of
preserving confidentiality of personal information and detailed clinical
data. For example, the release of utilization information for the
purpose of determining eligibility for certain services, such as the
number of dental prophylaxis procedures performed for a beneficiary, is
authorized;
(v) Disclosure is pursuant to an order from a court of competent
jurisdiction; or
(vi) Disclosure by the Director, OCHAMPUS, or designee, is for the
purpose of determining the applicability of, and implementing the
provisions of, other dental benefits coverage or entitlement.
(8) Utilization review and quality assurance. Claims submitted for
benefits under the TDP are subject to review by the Director, OCHAMPUS,
or designee, for quality of care and appropriate utilization. The
Director, OCHAMPUS, or designee, is responsible for appropriate
utilization review and quality assurance standards, norms, and criteria
consistent with the level of benefits.
(b) Definitions. For most definitions applicable to the provisions
of this section, refer to Sec. 199.2. The following definitions apply
only to this section:
(1) Assignment of benefits. Acceptance by a nonparticipating
provider of payment directly from the insurer while reserving the right
to charge the beneficiary or active duty, Selected Reserve or Individual
Ready Reserve member for any remaining amount of the fees for services
which exceeds the prevailing fee allowance of the insurer.
(2) Authorized provider. A dentist, dental hygienist, or certified
and licensed anesthetist specifically authorized to provide benefits
under the TDP in paragraph (f) of this section.
(3) Beneficiary. A dependent of an active duty, Selected Reserve or
Individual Ready Reserve member, or a member of the Selected Reserve or
Individual Ready Reserve, who has been enrolled in the TDP, and has been
determined to be eligible for benefits, as set forth in paragraph (c) of
this section.
(4) Beneficiary liability. The legal obligation of the beneficiary,
his or her estate, or responsible family member to
[[Page 263]]
pay for the costs of dental care or treatment received. Specifically,
for the purposes of services and supplies covered by the TDP,
beneficiary liability including cost-sharing amounts or any amount above
the network maximum allowable charge where the provider selected by the
beneficiary is not a participating provider or a provider within an
approved alternative delivery system. In cases where a nonparticipating
provider does not accept assignment of benefits.
(5) By report. Dental procedures which are authorized as benefits
only in unusual circumstances requiring justification of exceptional
conditions related to otherwise authorized procedures. These services
are further defined in paragraph (e) of this section.
(6) Contingency operation. Defined in 10 U.S.C. 101(a)(13) as a
military operation designated as a contingency operation by the
Secretary of Defense or a military operation that results in the
exercise of authorities for ordering Reserve Component members to active
duty without their consent and is therefore automatically a contingency
operation.
(7) Cost-share. The amount of money for which the beneficiary (or
active duty, Selected Reserve or Individual Ready Reserve member) is
responsible in connection with otherwise covered dental services (other
than disallowed amounts) as set forth in paragraph (e) of this section.
A cost-share may also be referred to as a ``co-payment.''
(8) Defense Enrollment Eligibility Reporting System (DEERS). The
automated system that is composed of two (2) phases:
(i) Enrolling all active duty, Reserve and retired service members,
their dependents, and the dependents of deceased service members; and
(ii) Verifying their eligibility for health care benefits in the
direct care facilities and through the TDP.
(9) Dental hygienist. Practitioner in rendering complete oral
prophylaxis services, applying medication, performing dental
radiography, and providing dental education services with a certificate,
associate degree, or bachelor's degree in the field, and licensed by an
appropriate authority.
(10) Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate
authority.
(11) Diagnostic services. Category of dental services including:
(i) Clinical oral examinations;
(ii) Radiographic examinations; and
(iii) Diagnostic laboratory tests and examinations provided in
connection with other dental procedures authorized as benefits of the
TDP and further defined in paragraph (e) of the section.
(12) Endodontics. The etiology, prevention, diagnosis, and treatment
of diseases and injuries affecting the dental pulp, tooth root, and
periapical tissue as further defined in paragraph (e) of this section.
(13) Initial determination. A formal written decision on a TDP
claim, a request for TDP benefit pre-determination, a request by a
provider for approval as an authorized provider, or a decision
suspending, excluding or terminating a provider as an authorized
provider under the TDP. Rejection of a claim or pre-determination, or of
a request for benefit or provider authorization for failure to comply
with administrative requirements, including failure to submit reasonably
requested information, is not an initial determination. Responses to
general or specific inquiries regarding TDP benefits are not initial
determinations.
(14) Nonparticipating provider. A dentist or dental hygienist that
furnished dental services to a TDP beneficiary, but who has not agreed
to participate in the contractor's network and accept reimbursement in
accordance with the contractor's network agreement. A nonparticipating
provider looks to the beneficiary or active duty, Selected Reserve or
Individual Ready Reserve member for final responsibility for payment of
his or her charge, but may accept payment (assignment of benefits)
directly from the insurer or assist the beneficiary in filing the claim
for reimbursement by the dental plan contractor. Where the
nonparticipating provider does not accept payment directly from the
insurer, the insurer pays the beneficiary or active duty, Selected
Reserve or Individual Ready Reserve member, not the provider.
[[Page 264]]
(15) Oral and maxillofacial surgery. Surgical procedures performed
in the oral cavity as further defined in paragraph (e) of this section.
(16) Orthodontics. The supervision, guidance, and correction of the
growing or mature dentofacial structures, including those conditions
that require movement of teeth or correction of malrelationships and
malformations of their related structures and adjustment of
relationships between and among teeth and facial bones by the
application of forces and/or the stimulation and redirection of
functional forces within the craniofacial complex as further defined in
paragraph (e) of this section.
(17) Participating provider. A dentist or dental hygienist who has
agreed to participate in the contractor's network and accept
reimbursement in accordance with the contractor's network agreement as
the total charge (even though less than the actual billed amount),
including provision for payment to the provider by the beneficiary (or
active duty, Selected Reserve or Individual Ready Reserve member) or any
cost-share for covered services.
(18) Party to the initial determination. Includes the TDP, a
beneficiary of the TDP and a participating provider of services whose
interests have been adjudicated by the initial determination. In
addition, provider who has been denied approval as an authorized TDP
provider is a party to the initial determination, as is a provider who
is suspended, excluded or terminated as an authorized provider, unless
the provider is excluded or suspended by another agency of the Federal
Government, a state, or a local licensing authority.
(19) Periodontics. The examination, diagnosis, and treatment of
diseases affecting the supporting structures of the teeth as further
defined in paragraph (e) of this section.
(20) Preventive services. Traditional prophylaxis including scaling
deposits from teeth, polishing teeth, and topical application of
fluoride to teeth, as well as other dental services authorized in
paragraph (e) of this section.
(21) Prosthodontics. The diagnosis, planning, making, insertion,
adjustment, refinement, and repair of artificial devices intended for
the replacement of missing teeth and associated tissues as further
defined in paragraph (e) of this section.
(22) Provider. A dentist, dental hygienist, or certified and
licensed anesthetist as specified in paragraph (f) of this section. This
term, when used in relation to OCONUS service area providers, may
include other recognized professions authorized to furnish care under
laws of that particular country.
(23) Restorative services. Restoration of teeth including those
procedures commonly described as amalgam restorations, resin
restorations, pin retention, and stainless steel crowns for primary
teeth as further defined in paragraph (e) of this section.
(c) Eligibility and enrollment--(1) General. 10 U.S.C. 1076a,
1072(2)(A), (D), or (I), 1072(6), 10143 and 10144 set forth those
persons who are eligible for voluntary enrollment in the TDP. A
determination that a person is eligible for voluntary enrollment does
not automatically entitle that person to benefit payments. The person
must be enrolled in accordance with the provisions set forth in this
section and meet any additional eligibility requirements in this part in
order for dental benefits to be extended.
(2) Eligibility--(i) Persons eligible. Eligibility for the TDP is
continuous in situations where the sponsor or member changes status
between any of these eligible categories and there is no break in
service or transfer to a non-eligible status.
(A) A person who bears one of the following relationships to an
active duty member (under a call or order that does not specify a period
of thirty (30) days or less) or a member of the Selected Reserve (as
specified in 10 U.S.C. 10143) or Individual Ready Reserve (as specified
in 10 U.S.C. 10144):
(1) Spouse. A lawful husband or wife, regardless of whether or not
dependent upon the active duty, Selected Reserve or Individual Ready
Reserve member.
(2) Child. To be eligible, the child must be unmarried and meet one
of the requirements set forth in section 199.3(b)(2)(ii)(A)-(F) or
199.3(b)(2)(ii)(H).
(B) A member of the Selected Reserve of the Ready Reserve (as
specified in 10 U.S.C. 10143).
[[Page 265]]
(C) A member of the Individual Ready Reserve of the Ready Reserve
(as specified in 10 U.S.C. 10144(b)) who is subject to being ordered to
active duty involuntarily in accordance with 10 U.S.C. 12304.
(D) All other members of the Individual Ready Reserve of the Ready
Reserve (as specified in 10 U.S.C. 10144(a)).
(ii) Determination of eligibility status and evidence of
eligibility--(A) Eligibility determination responsibility of the
Uniformed Services. Determination of a person's eligibility for the TDP
is the responsibility of the member's Uniformed Service. For the purpose
of program integrity, the appropriate Uniformed Service shall, upon
request of the Director, OCHAMPUS, or designee, review the eligibility
of a specified person when there is reason to question the eligibility
status. In such cases, a report on the result of the review and any
action taken will be submitted to the Director, OCHAMPUS, or designee.
(B) Procedures for determination of eligibility. Uniformed Service
identification cards do not distinguish eligibility for the TDP.
Procedures for the determination of eligibility are identified in Sec.
199.3(f)(2), except that Uniformed Service identification cards do not
provide evidence of eligibility for the TDP. Although OCHAMPUS and the
dental plan contractor must make determinations concerning a member or
dependent's eligibility in order to ensure proper enrollment and proper
disbursement of appropriated funds, ultimate responsibility for
resolving a member or dependent's eligibility rests with the Uniformed
Services.
(C) Evidence of eligibility required. Eligibility and enrollment in
the TDP will be verified through the DEERS. Eligibility and enrollment
information established and maintained in the DEERS file is the only
acceptable evidence of TDP eligibility and enrollment. It is the
responsibility of the active duty, Selected Reserve or Individual Ready
Reserve member or TDP beneficiary, parent, or legal representative, when
appropriate, to provide adequate evidence for entry into the DEERS file
to establish eligibility for the TDP, and to ensure that all changes in
status that may affect eligibility are reported immediately to the
appropriate Uniformed Service for action. Ineligibility for benefits is
presumed in the absence of prescribed eligibility evidence in the DEERS
file.
(3) Enrollment--(i) Previous plans--(A) Basic Active Duty Dependents
Dental Benefit Plan. The Basic Active Duty Dependents Dental Plan was
effective from August 1, 1987, up to the date of implementation of the
Expanded Active Duty Dependents Dental Benefit Plan. The Basic Active
Duty Dependents Dental Benefit Plan terminated upon implementation of
the expanded plan.
(B) Expanded Active Duty Dependents Dental Benefit Plan. The
Expanded Active Duty Dependents Dental Benefit Plan (also known as the
TRICARE Family Member Dental Plan) was effective from August 1, 1993, up
to the date of implementation of the TDP. The Expanded Active Duty
Dependents Dental Benefit Plan terminates upon implementation of the
TDP.
(ii) TRICARE Dental Program (TDP)--(A) Election of coverage. (1)
Except as provided in paragraph (c)(3)(ii)(A)(2) of this section, active
duty, Selected Reserve and Individual Ready Reserve service members may
voluntarily elect to enroll their eligible dependents and members of the
Selected Reserve and Individual Ready Reserve may voluntarily elect to
enroll themselves following implementation of the TDP. In order to
obtain TDP coverage, written or telephonic election by the active duty,
Selected Reserve or Individual Ready Reserve member must be made and
will be accomplished by submission or telephonic completion of an
application to the dental plan contractor. This election can also be
accomplished via electronic means.
(2) Eligible dependents of active duty members enrolled in the
Expanded Active Duty Dependents Dental Benefit Plan at the time of
implementation of the TDP will automatically be enrolled in the TDP.
Eligible members of the Selected Reserve enrolled in the TRICARE
Selected Reserve Dental Program at the time of implementation of the TDP
will automatically be enrolled in the TDP. No election to enroll in the
TDP will be required by the active duty or Selected Reserve member.
[[Page 266]]
(B) Premiums--(1) Enrollment will be by either single or family
premium as defined as follows:
(i) Single premium. One (1) covered eligible dependent or one (1)
covered eligible Selected Reserve or Individual Ready Reserve member.
(ii) Family premium. Two (2) or more covered eligible dependents.
Under the family premium, all eligible dependents of the active duty,
Selected Reserve or Individual Ready Reserve member are enrolled.
(2) Exceptions. (i) An active duty, Selected Reserve or Individual
Ready Reserve member may elect to enroll only those eligible dependents
residing in one (1) location when the active duty, Selected Reserve or
Individual Ready Reserve member has eligible dependents residing in two
or more geographically separate locations (e.g., children living with a
divorced spouse; a child attending college).
(ii) Instances where a dependent of an active duty member requires a
hospital or special treatment environment (due to a medical, physical
handicap, or mental condition) for dental care otherwise covered by the
TDP, the dependent may be excluded from TDP enrollment and may continue
to receive care from a military treatment facility.
(iii) A member of the Selected Reserve or Individual Ready Reserve
may enroll separately from his or her eligible dependents. A member of
the Selected Reserve or Individual Ready Reserve does not have to be
enrolled in order for his or her eligible dependents to enroll under the
TDP.
(C) Enrollment period--(1) General. Enrollment of eligible
dependents or members is for a period of one (1) year followed by month-
to-month enrollment as long as the active duty, Selected Reserve or
Individual Ready Reserve member chooses to continue enrollment. Active
duty members may enroll their eligible dependents and eligible members
of the Selected Reserve or Individual Ready Reserve may enroll
themselves or their eligible dependents in the TDP provided there is an
intent to remain on active duty or as a member of the Selected Reserve
or Individual Ready Reserve (or any combination thereof without a break
in service or transfer to a non-eligible status) for a period of not
less than one (1) year by the service member and their parent Uniformed
Service. Beneficiaries enrolled in the TDP must remain enrolled for a
minimum period of one (1) year unless one of the conditions for
disenrollment specified in paragraph (c)(3)(ii)(E) of this section is
met.
(2) Special enrollment period for Reserve component members ordered
to active duty in support of contingency operations. The mandatory
twelve (12) month enrollment period does not apply to Reserve component
members ordered to active duty (other than for training) in support of a
contingency operation as designated by the Secretary of Defense.
Affected Reserve component members may enroll in the TDP only if their
orders specify that they are ordered to active duty in support of a
contingency operation, as defined by 10 U.S.C., for a period of thirty-
one (31) days or more. An affected Reserve component member must elect
to enroll in the TDP and complete the enrollment application within
thirty (30) days following entry on active duty or within sixty (60)
days following implementation of the TDP. Following enrollment,
beneficiaries must remain enrolled, with the member paying premiums,
until the end of the member's active duty period in support of the
contingency operation or twelve (12) months, whichever occurs first
unless one of the conditions for disenrollment specified in paragraph
(c)(3)(ii)(E) of this section is met.
(3) Continuation of enrollment from Expanded Active Duty Dependents
Dental Benefit Plan. Beneficiaries enrolled in the Expanded Active Duty
Dependents Dental Benefit Plan at the time when TDP coverage begins must
complete their two (2) year enrollment period established under this
former plan except if one of the conditions for disenrollment specified
in paragraph (c)(3)(ii)(E) of this section is met. Once this original
two (2) year enrollment period is met, the active duty member may
continue TDP enrollment on a month-to-month basis. A new one (1) year
enrollment period will only be incurred if the active duty member
disenrolls and attempts to reenroll in the TDP at a later date.
[[Page 267]]
(4) Continuation of enrollment from TRICARE Selected Reserve Dental
Program. Beneficiaries enrolled in the TRICARE Selected Reserve Dental
Program at the time when TDP coverage begins must complete their one (1)
year enrollment period established under this former program except if
one of the conditions for disenrollment specified in paragraph
(c)(3)(ii)(E) of this section is met. Once this original one (1) year
enrollment period is met, the Selected Reserve member may continue TDP
enrollment on a month-to-month basis. A new one (1) year enrollment
period will only be incurred if the Selected Reserve member disenrolls
and attempts to reenroll in the TDP at a later date.
(D) Beginning dates of eligibility. The beginning date of
eligibility for TDP benefits is the first day of the month following the
month in which the election of enrollment is completed, signed, and the
enrollment and premium is received by the dental plan contractor,
subject to a predetermined and publicized dental plan contractor monthly
cut-off date, except that the date of eligibility shall not be earlier
than the first day of the month in which the TDP is implemented. This
includes any changes between single and family member premium coverage
and coverage of newly eligible or enrolled dependents or members.
(E) Changes in and termination of enrollment--(1) Changes in status
of active duty, Selected Reserve or Individual Ready Reserve member.
When the active duty, Selected Reserve or Individual Ready Reserve
member is separated, discharged, retired, transferred to the Standby or
Retired Reserve, his or her enrolled dependents and/or the enrolled
Selected Reserve or Individual Ready Reserve member loses eligibility
and enrollment as of 11:59 p.m. on the last day of the month in which
the change in status takes place. When the Selected Reserve or
Individual Ready Reserve member is ordered to active duty for a period
of more than 30 days without a break in service, the member loses
eligibility and is disenrolled, if previously enrolled; however, their
enrolled dependents maintain their eligibility and previous enrollment
subject to eligibility, enrollment and disenrollment provisions
described in this section and in the TDP contract.
(i) Reserve component members separated from active duty in support
of a contingency operation. When a member of a reserve component who is
separated from active duty to which called or ordered in support of a
contingency operation if the active duty is for more than 30 days, the
member becomes eligible for Transitional Health Care pursuant to 10
U.S.C. 1145(a) and the member is entitled to dental care to which a
member of the uniformed services on active duty for more than 30 days is
entitled. Thus the member has no requirement for the TDP and is not
eligible to purchase the TDP. Upon the termination of Transitional
Health Care eligibility, the member regains TDP eligibility and is
reenrolled, if previously enrolled.
(ii) Dependents of members separated from active duty in support of
a contingency operation. Dependents of a member of a reserve component
who is separated from active duty to which called or ordered in support
of a contingency operation if the active duty is active for more than 30
days maintain their eligibility and previous enrollment, subject to
eligibility, enrollment and disenrollment provisions described in this
section and in the TDP contract. During the member's Transitional Health
Care eligibility, the dependents are considered family members of
Reserve Component members.
(iii) Members separated from active duty and not covered by 10
U.S.C. 1145(a)(2)(B). When the previously enrolled active duty member is
transferred back to the Selected Reserve or Individual Ready Reserve,
and is not covered by 10 U.S.C. 1145(a)(2)(B), without a break in
service, the member regains TDP eligibility and is reenrolled; however,
enrolled dependents maintain their eligibility and previous enrollment
subject to eligibility, enrollment and disenrollment provisions
described in this section and in the TDP contract.
(iv) Eligible dependents of an active duty, Selected Reserve or
Individual Ready Reserve member serving a sentence of confinement in
conjunction with a sentence of punitive discharge are still eligible for
the TDP until such
[[Page 268]]
time as the active duty, Selected Reserve or Individual Ready Reserve
member's discharge is executed.
(2) Survivor eligibility. Eligible dependents of active duty members
who die 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) who die, shall be eligible for survivor
enrollment in the TDP. During the period of survivor enrollment, the
government will pay both the government and the eligible dependent's
portion of the premium share. This survivor 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.
1072(2)(D) or (I), the period of survivor 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.
(3) Changes in status of dependent--(i) Divorce. A spouse separated
from an active duty, Selected Reserve or Individual Ready Reserve member
by a final divorce decree loses all eligibility based on his or her
former marital relationship as of 11:59 p.m. of the last day of the
month in which the divorce becomes final. The eligibility of the active
duty, Selected Reserve or Individual Ready Reserve member's own children
(including adopted and eligible illegitimate children) is unaffected by
the divorce. An unadopted stepchild, however, loses eligibility with the
termination of the marriage, also as of 11:59 p.m. of the last day of
the month in which the divorce becomes final.
(ii) Annulment. A spouse whose marriage to an active duty, Selected
Reserve or Individual Ready Reserve member is dissolved by annulment
loses eligibility as of 11:59 p.m. of the last day of the month in which
the court grants the annulment order. The fact that the annulment
legally declares the entire marriage void from its inception does not
affect the termination date of eligibility. When there are children, the
eligibility of the active duty, Selected Reserve or Individual Ready
Reserve member's own children (including adopted and eligible
illegitimate children) is unaffected by the annulment. An unadopted
stepchild, however, loses eligibility with the annulment of the
marriage, also as of 11:59 p.m. of the last day of the month in which
the court grants the annulment order.
(iii) Adoption. A child of an active duty, Selected Reserve or
Individual Ready Reserve member who is adopted by a person, other than a
person whose dependents are eligible for TDP benefits while the active
duty, Selected Reserve or Individual Ready Reserve member is living,
thereby severing the legal relationship between the child and the active
duty, Selected Reserve or Individual Ready Reserve member, loses
eligibility as of 11:59 p.m. of the last day of the month in which the
adoption becomes final.
(iv) Marriage of child. A child of an active duty, Selected Reserve
or Individual Ready Reserve member who marries a person whose dependents
are not eligible for the TDP, loses eligibility as of 11:59 p.m. on the
last day of the month in which the marriage takes place. However, should
the marriage be terminated by death, divorce, or annulment before the
child is twenty-one (21) years old, the child again become eligible for
enrollment as a dependent as of 12:00 a.m. of the first day of the month
following the month in which the occurrence takes place that terminates
the marriage and continues up to age twenty-one (21) if the child does
not remarry before that time. If the marriage
[[Page 269]]
terminates after the child's 21st birthday, there is no reinstatement of
eligibility.
(v) Disabling illness or injury of child age 21 or 22 who has
eligibility based on his or her student status. A child twenty-one (21)
or twenty-two (22) years old who is pursuing a full-time course of
higher education and who, either during the school year or between
semesters, suffers a disabling illness or injury with resultant
inability to resume attendance at the institution remains eligible for
the TDP for six (6) months after the disability is removed or until the
student passes his or her 23rd birthday, whichever occurs first.
However, if recovery occurs before the 23rd birthday and there is
resumption of a full-time course of higher education, the TDP can be
continued until the 23rd birthday. The normal vacation periods during an
established school year do not change the eligibility status of a
dependent child twenty-one (21) or twenty-two (22) years old in full-
time student status. Unless an incapacitating condition existed before,
and at the time of, a dependent child's 21st birthday, a dependent child
twenty-one (21) or twenty-two (22) years old in student status does not
have eligibility related to mental or physical incapacity as described
in Sec. 199.3(b)(2)(iv)(C)(2).
(4) Other--(i) Disenrollment because of no eligible beneficiaries.
When an active duty, Selected Reserve or Individual Ready Reserve member
ceases to have any eligible beneficiaries, enrollment is terminated for
those enrolled dependents.
(ii) Option to disenroll as a result of a change in active duty
station. When an active duty member transfers with enrolled dependents
to a duty station where space-available dental care for the enrolled
dependents is readily available at the local Uniformed Service dental
treatment facility, the active duty member may elect, within ninety (90)
calendar days of the transfer, to disenroll their dependents from the
TDP. If the active duty member is later transferred to a duty station
where dental care for the dependents is not available in the local
Uniformed Service dental treatment facility, the active duty member may
reenroll their eligible dependents in the TDP provided the member, as of
the date of reenrollment, otherwise meets the requirements for
enrollment, including the intent to remain on active duty for a period
of not less than one (1) year. This disenrollment provision does not
apply to enrolled dependents of members of the Selected Reserve or
Individual Ready Reserve or to enrolled members of the Selected Reserve
or Individual Ready Reserve.
(iii) Option to disenroll due to transfer to OCONUS service area.
When an enrolled dependent of an active duty, Selected Reserve or
Individual Ready Reserve member or an enrolled Selected Reserve or
Individual Ready Reserve member relocates to locations within the OCONUS
service area, the active duty, Selected Reserve or Individual Ready
Reserve member may elect, within ninety (90) calendar days of the
relocation, to disenroll their dependents from the TDP, or in the case
of enrolled members of the Selected Reserve or Individual Ready Reserve,
to disenroll themselves from the TDP. The active duty, Selected Reserve
or Individual Ready Reserve member may reenroll their eligible
dependents, or in the case of members of the Selected Reserve or
Individual Ready Reserve, may reenroll themselves in the TDP provided
the member, as of the date of reenrollment, otherwise meets the
requirements for enrollment, including the intent to remain on active
duty or as a member of the Selected Reserve or Individual Ready Reserve
(or any combination thereof without a break in service or transfer to a
non-eligible status) for a period of not less than one (1) year.
(iv) Option to disenroll after an initial one (1) year enrollment.
When a dependent's enrollment under an active duty, Selected Reserve or
Individual Ready Reserve member or a Selected Reserve or Individual
Ready Reserve member's own enrollment has been in effect for a
continuous period of one (1) year, the active duty, Selected Reserve or
Individual Ready Reserve member may disenroll their dependents, or in
the case of enrolled members of the Selected Reserve or Individual Ready
Reserve may disenroll themselves at any time following procedures as set
up by the dental plan contractor. Subsequent
[[Page 270]]
to the disenrollment, the active duty, Selected Reserve or Individual
Ready Reserve member may reenroll their eligible dependents, or in the
case of members of the Selected Reserve or Individual Ready Reserve may
reenroll themselves, for another minimum period of one (1) year. If,
during any one (1) year enrollment period, the active duty, Selected
Reserve or Individual Ready Reserve member disenrolls their dependents,
or in the case of members of the Selected Reserve or Individual Ready
Reserve disenrolls themselves, for reasons other than those listed in
this paragraph (c)(3)(ii)(E) or fails to make premium payments,
dependents enrolled under the active duty, Selected Reserve or
Individual Ready Reserve member, or enrolled members of the Selected
Reserve and Individual Ready Reserve, will be subject to a lock-out
period of twelve (12) months. Following this period of time, active
duty, Selected Reserve or Individual Ready Reserve members will be able
to reenroll their eligible dependents, or members of the Selected
Reserve or Individual Ready Reserve will be able to reenroll themselves,
if they so choose. The twelve (12) month lock-out period applies to
enrolled dependents of a Reserve component member who disenrolls for
reasons other than those listed in this paragraph (c)(3)(ii)(E) or fails
to make premium payments after the member has enrolled pursuant to
paragraph (c)(3)(ii)(C) of this section.
(5) TRICARE Dental Program coverage shall terminate for members who
no longer qualify for the TRICARE Dental Program as specified in
paragraph (c)(2) of this section, with one exception. If a member is
involuntarily separated from the Selected Reserve under other than
adverse conditions, as characterized by the Secretary concerned, and
TRICARE Dental Program coverage is in effect for the member and/or the
family on the last day of his or her membership in the Selected Reserve;
then the TRICARE Dental Program coverage that was actually in effect may
terminate no earlier than 180 days after the date on which the member is
separated from the Selected Reserve. This exception expires December 31,
2018.
(d) Premium sharing--(1) General. Active duty, Selected Reserve or
Individual Ready Reserve members enrolling their eligible dependents, or
members of the Selected Reserve or Individual Ready Reserve enrolling
themselves, in the TDP shall be required to pay all or a portion of the
premium cost depending on their status.
(i) Members required to pay a portion of the premium cost. This
premium category includes active duty members (under a call or order to
active duty that does not specify a period of thirty (30) days or less)
on behalf of their enrolled dependents. It also includes members of the
Selected Reserve (as specified in 10 U.S.C. 10143) and the Individual
Ready Reserve (as specified in 10 U.S.C. 10144(b)) enrolled on their own
behalf.
(ii) Members required to pay the full premium cost. This premium
category includes members of the Selected Reserve (as specified in 10
U.S.C. 10143), and the Individual Ready Reserve (as specified in 10
U.S.C. 10144), on behalf of their enrolled dependents. It also includes
members of the Individual Ready Reserve (as specified in 10 U.S.C.
10144(a)) enrolled on their own behalf.
(2) Proportion of premium share. The proportion of premium share to
be paid by the active duty, Selected Reserve and Individual Reserve
member pursuant to paragraph (d)(1)(i) of this section is established by
the ASD(HA), or designee, at not more than forty (40) percent of the
total premium. The proportion of premium share to be paid by the
Selected Reserve and Individual Reserve member pursuant to paragraph
(d)(1)(ii) of this section is established by the ASD(HA), or designee,
at one hundred (100) percent of the total premium.
(3) Provision for increases in active duty, Selected Reserve and
Individual Ready Reserve member's premium share. (i) Although previously
capped at $20 per month, the law has been amended to authorize the cap
on active duty, Selected Reserve and Individual Ready Reserve member's
premiums pursuant to paragraph (d)(1)(i) of this section to rise,
effective as of January 1 of each year, by the percent equal to the
lesser of:
[[Page 271]]
(A) The percent by which the rates of basic pay of members of the
Uniformed Services are increased on such date; or
(B) The sum of one-half percent and the percent computed under 5
U.S.C. 5303(a) for the increase in rates of basic pay for statutory pay
systems for pay periods beginning on or after such date.
(ii) Under the legislation authorizing an increase in the monthly
premium cap, the methodology for determining the active duty, Selected
Reserve and Individual Ready Reserve member's TDP premium pursuant to
paragraph (d)(1)(i) of this section will be applied as if the
methodology had been in continuous use since December 31, 1993.
(4) Reduction of premium share for enlisted members. For enlisted
members in pay grades E-1 through E-4, the ASD(HA) or designee, may
reduce the monthly premium these active duty, Selected Reserve and
Individual Ready Reserve members pay pursuant to paragraph (d)(1)(i) of
this section.
(5) Reduction of cost-shares for enlisted members. For enlisted
members in pay grades E-1 through E-4, the ASD(HA) or designee, may
reduce the cost-shares that active duty, Selected Reserve and Individual
Ready Reserve members pay on behalf of their enrolled dependents and
that members of the Selected Reserve and Individual Ready Reserve pay on
their own behalf for selected benefits as specified in paragraph
(e)(3)(i) of this section.
(6) Premium payment method. The active duty, Selected Reserve and
Individual Ready Reserve member's premium share may be deducted from the
active duty, Selected Reserve or Individual Ready Reserve member's basic
pay or compensation paid under 37 U.S.C. 206, if sufficient pay is
available. For members who are otherwise eligible for TDP benefits and
who do not receive such pay and dependents who are otherwise eligible
for TDP benefits and whose sponsors do not receive such pay, or if
insufficient pay is available, the premium payment may be collected
pursuant to procedures established by the Director, OCHAMPUS, or
designee.
(7) Annual notification of premium rates. TDP premium rates will be
determined as part of the competitive contracting process. Information
on the premium rates will be widely distributed by the dental plan
contractor and the Government.
(e) Plan benefits--(1) General--(i) Scope of benefits. The TDP
provides coverage for diagnostic and preventive services, sealants,
restorative services, endodontics, periodontics, prosthodontics,
orthodontics and oral and maxillofacial surgery.
(ii) Authority to act for the plan. The authority to make benefit
determinations and authorize plan payments under the TDP rests primarily
with the insurance, service plan, or prepayment dental plan contractor,
subject to compliance with Federal law and regulation and Government
contract provisions. The Director, OCHAMPUS, or designee, provides
required benefit policy decisions resulting from changes in Federal law
and regulation and appeal decisions. No other persons or agents (such as
dentists or Uniformed Services HBAs) have such authority.
(iii) Dental benefits brochure--(A) Content. The Director, OCHAMPUS,
or designee, shall establish a comprehensive dental benefits brochure
explaining the benefits of the plan in common lay terminology. The
brochure shall include the limitations and exclusions and other benefit
determination rules for administering the benefits in accordance with
the law and this part. The brochure shall include the rules for
adjudication and payment of claims, appealable issues, and appeal
procedures in sufficient detail to serve as a common basis for
interpretation and understanding of the rules by providers,
beneficiaries, claims examiners, correspondence specialists, employees
and representatives of other Government bodies, HBAs, and other
interested parties. Any conflict, which may occur between the dental
benefits brochure and law or regulation, shall be resolved in favor of
law and regulation.
(B) Distribution. The dental benefits brochure will be available
through the dental plan contractor and will be distributed with the
assistance of the Uniformed Services HBAs and major personnel centers at
Uniformed Service installations and headquarters to all members
enrolling themselves or their eligible dependents.
[[Page 272]]
(iv) Alternative course of treatment policy. The Director, OCHAMPUS,
or designee, may establish, in accordance with generally accepted dental
benefit practices, an alternative course of treatment policy which
provides reimbursement in instances where the dentist and beneficiary
select a more expensive service, procedure, or course of treatment than
is customarily provided. The alternative course of treatment policy must
meet following conditions:
(A) The service, procedure, or course of treatment must be
consistent with sound professional standards of dental practice for the
dental condition concerned.
(B) The service, procedure, or course of treatment must be a
generally accepted alternative for a service or procedure covered by the
TDP for the dental condition.
(C) Payment for the alternative service or procedure may not exceed
the lower of the prevailing limits for the alternative procedure, the
prevailing limits or dental plan contractor's scheduled allowance for
the otherwise authorized benefit procedure for which the alternative is
substituted, or the actual charge for the alternative procedure.
(2) Benefits. The following benefits are defined (subject to the
TDP's exclusions, limitations, and benefit determination rules approved
by OCHAMPUS) using the American Dental Association's Council on Dental
Care Program's Code on Dental Procedures and Nomenclature. The Director,
OCHAMPUS, or designee, may modify these services, to the extent
determined appropriate based on developments in common dental care
practices and standard dental insurance programs.
(i) Diagnostic and preventive services. Benefits may be extended for
those dental services described as oral examination, diagnostic, and
preventive services when performed directly by dentists and dental
hygienists as authorized under paragraph (f) of this section. These
include the following categories of service:
(A) Diagnostic services. (1) Clinical oral examinations.
(2) Radiographs and diagnostic imaging.
(3) Tests and laboratory examinations.
(B) Preventive services. (1) Dental prophylaxis.
(2) Topical fluoride treatment (office procedure).
(3) Other preventive services.
(4) Space maintenance (passive appliances).
(5) Sealants.
(ii) General services and services ``by report''. The following
categories of services are authorized when performed directly by
dentists or dental hygienists, as authorized under paragraph (f) of this
section, only in unusual circumstances requiring justification of
exceptional conditions directly related to otherwise authorized
procedures. Use of the procedures may not result in the fragmentation of
services normally included in a single procedure. The dental plan
contractor may recognize a ``by report'' condition by providing
additional allowance to the primary covered procedure instead of
recognizing or permitting a distinct billing for the ``by report''
service. These include the following categories of general services:
(A) Unclassified treatment.
(B) Anesthesia.
(C) Professional consultation.
(D) Professional visits.
(E) Drugs.
(F) Miscellaneous services.
(iii) Restorative services. Benefits may be extended for restorative
services when performed directly by dentists or dental hygienists, or
under orders and supervision by dentists, as authorized under paragraph
(f) of this section. These include the following categories of
restorative services:
(A) Amalgam restorations.
(B) Resin restorations.
(C) Inlay and onlay restorations.
(D) Crowns.
(E) Other restorative services.
(iv) Endodontic services. Benefits may be extended for those dental
services involved in treatment of diseases and injuries affecting the
dental pulp, tooth root, and periapical tissue when
[[Page 273]]
performed directly by dentists as authorized under paragraph (f) of this
section. These include the following categories of endodontic services:
(A) Pulp capping.
(B) Pulpotomy and pulpectomy.
(C) Endodontic therapy.
(D) Apexification and recalcification procedures.
(E) Apicoectomy and periradicular services.
(F) Other endodontic procedures.
(v) Periodontic services. Benefits may be extended for those dental
services involved in prevention and treatment of diseases affecting the
supporting structures of the teeth to include periodontal prophylaxis,
gingivectomy or gingivoplasty, gingival curettage, etc., when performed
directly by dentists as authorized under paragraph (f) of this section.
These include the following categories of periodontic services:
(A) Surgical services.
(B) Periodontal services.
(C) Other periodontal services.
(vi) Prosthodontic services. Benefits may be extended for those
dental services involved in fabrication, insertion adjustment,
relinement, and repair of artificial teeth and associated tissues to
include removable complete and partial dentures, fixed crowns and
bridges when performed directly by dentists as authorized under
paragraph (f)(4) of this section. These include the following categories
of prosthodontic services:
(A) Prosthodontics (removable).
(1) Complete and partial dentures.
(2) Adjustments to dentures.
(3) Repairs to complete and partial dentures.
(4) Denture rebase procedures.
(5) Denture reline procedures.
(6) Other removable prosthetic services.
(B) Prosthodontics (fixed).
(1) Fixed partial denture pontics.
(2) Fixed partial denture retainers.
(3) Other partial denture services.
(vii) Orthodontic services. Benefits may be extended for the
supervision, guidance, and correction of growing or mature dentofacial
structures, including those conditions that require movement of teeth or
correction of malrelationships and malformations through the use of
orthodontic procedures and devices when performed directly by dentists
as authorized under paragraph (f) of this section to include in-process
orthodontics. These include the following categories of orthodontic
services:
(A) Limited orthodontic treatment.
(B) Minor treatment to control harmful habits.
(C) Interceptive orthodontic treatment.
(D) Comprehensive orthodontic treatment.
(E) Other orthodontic services.
(viii) Oral and maxillofacial surgery services. Benefits may be
extended for basic surgical procedure of the extraction, reimplantation,
stabilization and repositioning of teeth, alveoloplasties, incision and
drainage of abscesses, suturing of wounds, biopsies, etc., when
performed directly by dentists as authorized under paragraph (f) of this
section. These include the following categories of oral and
maxillofacial surgery services:
(A) Extractions.
(B) Surgical extractions.
(C) Other surgical procedures.
(D) Alveoloplasty--surgical preparation of ridge for denture.
(E) Surgical incision.
(F) Repair of traumatic wounds.
(G) Complicated suturing.
(H) Other repair procedures.
(ix) Exclusion of adjunctive dental care. Adjunctive dental care
benefits are excluded under the TDP. For further information on
adjunctive dental care benefits under TRICARE/CHAMPUS, see Sec.
199.4(e)(10).
(x) Benefit limitations and exclusions. The Director, OCHAMPUS, or
designee, may establish such exclusions and limitations as are
consistent with those established by dental insurance and prepayment
plans to control utilization and quality of care for the services and
items covered by the TDP.
(xi) Limitation on reduction of benefits. If a reduction in benefits
is planned, the Secretary of Defense, or designee, may not reduce TDP
benefits without notifying the appropriate Congressional committees. If
a reduction is approved, the Secretary of Defense, or designee, must
wait one (1) year from the date of notice before a benefit reduction can
be implemented.
[[Page 274]]
(3) Cost-shares, liability and maximum coverage--(i) Cost-shares.
The following table lists maximum active duty, Selected Reserve and
Individual Ready Reserve member and dependent cost-shares for covered
services for participating and nonparticipating providers of care (see
paragraph (f)(6) of this section for additional active duty, Selected
Reserve and Individual Ready Reserve costs). These are percentages of
the dental plan contractor's determined allowable amount that the active
duty, Selected Reserve and Individual Ready Reserve member or
beneficiary must pay to these providers. For care received in the OCONUS
service area, the ASD(HA), or designee, may pay certain cost-shares and
other portions of a provider's billed charge for enrolled dependents of
active duty members (under a call or order that does not specify a
period of thirty (30) days or less), and for members of the Selected
Reserve (as specified in 10 U.S.C. 10143) and Individual Ready Reserve
(as specified in 10 U.S.C. 10144(b)) enrolled on their own behalf.
[In percent]
------------------------------------------------------------------------
Cost-share
for pay Cost-share
Covered services grades E-1, for all
E-2, E-3 other pay
and E-4 grades
------------------------------------------------------------------------
Diagnostic.................................... 0 0
Preventive, except Sealants................... 0 0
Emergency Services............................ 0 0
Professional Consultations.................... 20 20
Professional Visits........................... 20 20
Post Surgical Services........................ 20 20
Basic Restorative (example: amalgams, resins, 20 20
stainless steel crowns)......................
Endodontic.................................... 30 40
Periodontic................................... 30 40
Oral and Maxillofacial Surgery................ 30 40
General Anesthesia............................ 40 40
Intravenous Sedation.......................... 50 50
Other Restorative (example: crowns, onlays, 50 50
casts).......................................
Prosthodontics................................ 50 50
Medications................................... 50 50
Orthodontic................................... 50 50
Miscellaneous................................. 50 50
------------------------------------------------------------------------
(ii) Dental plan contractor liability. When more than twenty-five
(25) percent or more than two hundred (200) enrollees in a specific five
(5) digit zip code area are unable to obtain a periodic or initial (non-
emergency) dentistry appointment with a network provider within twenty-
one (21) calendar days and within thirty-five (35) miles of the
enrollee's place of residence, then the TRICARE Management Activity
(TMA) will designate that area as ``non-compliant with the access
standard.'' Once so designated, the dental program contractor will
reimburse the beneficiary, or active duty, Selected Reserve or
Individual Ready Reserve member, or the nonparticipating provider
selected by enrollees in that area (or a subset of the area or nearby
zip codes in other five (5) digit zip code areas as determined by TMA)
at the level of the provider's usual fees less the applicable enrollee
cost-share, if any. TMA shall determine when such area becomes compliant
with the access standards. This access standard and associated liability
does not apply to care received in the OCONUS service area.
(iii) Maximum coverage amounts. Beneficiaries are subject to an
annual maximum coverage amount for non-orthodontic dental benefits and a
lifetime maximum coverage amount for orthodontics as established by the
ASD (HA) or designee.
(f) Authorized providers--(1) General. Beneficiaries may seek
covered services from any provider who is fully licensed and approved to
provide dental care or covered anesthesia benefits in the state where
the provider is located. This includes licensed dental hygienists,
practicing within the scope of their licensure, subject to any
restrictions a state licensure or legislative body imposes regarding
their status as independent providers of care.
(2) Authorized provider status does not guarantee payment of
benefits. The fact that a provider is ``authorized'' is not to be
construed to mean that the TDP will automatically pay a claim for
services or supplies provided by such a provider. The Director,
OCHAMPUS, or designee, also must determine if the patient is an eligible
beneficiary, whether the services or supplies billed are authorized and
medically necessary, and whether any of the authorized exclusions of
otherwise qualified providers presented in this section apply.
(3) Utilization review and quality assurance. Services and supplies
furnished by providers of care shall be subject to
[[Page 275]]
utilization review and quality assurance standards, norms, and criteria
established under the TDP. Utilization review and quality assurance
assessments shall be performed under the TDP consistent with the nature
and level of benefits of the plan, and shall include analysis of the
data and findings by the dental plan contractor from other dental
accounts.
(4) Provider required. In order to be considered benefits, all
services and supplies shall be rendered by, prescribed by, or furnished
at the direction of, or on the order of a TDP authorized provider
practicing within the scope of his or her license.
(5) Participating provider. An authorized provider may elect to
participate as a network provider in the dental plan contractor's
network and any such election will apply to all TDP beneficiaries. The
authorized provider may not participate on a claim-by-claim basis. The
participating provide must agree to accept, within one (1) day of a
request for appointment, beneficiaries in need of emergency palliative
treatment. Payment to the participating provider is based on the
methodology specified in paragraph (g)(2)(ii) of this section. The fee
or charge determinations are binding upon the provider in accordance
with the dental plan contractor's procedures for participation in the
network. Payment is made directly to the participating provider, and the
participating provider may only charge the beneficiary the applicable
percent cost-share of the dental plan contractor's allowable charge for
those benefit categories as specified in paragraph (e) of this section,
in addition to the full charges for any services not authorized as
benefits.
(6) Nonparticipating provider. An authorized provider may elect to
not participate for all TDP beneficiaries and request the beneficiary or
active duty, Selected Reserve or Individual Ready Reserve member to pay
any amount of the provider's billed charge in excess of the dental plan
contractor's determination of allowable charges (to include the
appropriate cost-share). Neither the Government nor the dental plan
contractor shall have any responsibility for any amounts over the
allowable charges as determined by the dental plan contractor, except
where the dental plan contractor is unable to identify a participating
provider of care within thirty-five (35) miles of the beneficiary's
place of residence with appointment availability within twenty-one (21)
calendar days. In such instances of the nonavailability of a
participating provider and in accordance with the provisions of the
dental contract, the nonparticipating provider located within thirty-
five (35) miles of the beneficiary's place of residence shall be paid
his or her usual fees (either by the beneficiary or the dental plan
contractor if the beneficiary elected assignment of benefits), less the
percent cost-share as specified in paragraph (e)(3)(i) of this section.
(i) Assignment of benefits. A nonparticipating provider may accept
assignment of benefits for claims (for beneficiaries certifying their
willingness to make such assignment of benefits) by filing the claims
completed with the assistance of the beneficiary or active duty,
Selected Reserve or Individual Ready Reserve member for direct payment
by the dental plan contractor to the provider.
(ii) No assignment of benefits. A nonparticipating provider for all
beneficiaries may request that the beneficiary or active duty, Selected
Reserve or Individual Ready Reserve member file the claim directly with
the dental plan contractor, making arrangements with the beneficiary or
active duty, Selected Reserve or Individual Ready Reserve member for
direct payment by the beneficiary or active duty, Selected Reserve or
Individual Ready Reserve member.
(7) Alternative delivery system--(i) General. Alternative delivery
systems may be established by the Director, OCHAMPUS, or designee, as
authorized providers. Only dentists, dental hygienists and licensed
anesthetists shall be authorized to provide or direct the provision of
authorized services and supplies in an approved alternative delivery
system.
(ii) Defined. An alternative delivery system may be any approved
arrangement for a preferred provider organization, capitation plan,
dental health maintenance or clinic organization, or
[[Page 276]]
other contracted arrangement which is approved by OCHAMPUS in accordance
with requirements and guidelines.
(iii) Elective or exclusive arrangement. Alternative delivery
systems may be established by contract or other arrangement on either an
elective or exclusive basis for beneficiary selection of participating
and authorized providers in accordance with contractual requirements and
guidelines.
(iv) Provider election of participation. Otherwise authorized
providers must be provided with the opportunity of applying for
participation in an alternative delivery system and of achieving
participation status based on reasonable criteria for timeliness of
application, quality of care, cost containment, geographic location,
patient availability, and acceptance of reimbursement allowance.
(v) Limitation on authorized providers. Where exclusive alternative
delivery systems are established, only providers participating in the
alternative delivery system are authorized providers of care. In such
instances, the TDP shall continue to pay beneficiary claims for services
rendered by otherwise authorized providers in accordance with
established rules for reimbursement of nonparticipating providers where
the beneficiary has established a patient relationship with the
nonparticipating provider prior to the TDP's proposal to subcontract
with the alternative delivery system.
(vi) Charge agreements. Where the alternative delivery system
employs a discounted fee-for-service reimbursement methodology or
schedule of charges or rates which includes all or most dental services
and procedures recognized by the American Dental Association's Council
on Dental Care Program's Code on Dental Procedures and Nomenclature, the
discounts or schedule of charges or rates for all dental services and
procedures shall be extended by its participating providers to
beneficiaries of the TDP as an incentive for beneficiary participation
in the alternative delivery system.
(g) Benefit payment--(1) General. TDP benefits payments are made
either directly to the provider or to the beneficiary or active duty,
Selected Reserve or Individual Ready Reserve member, depending on the
manner in which the claim is submitted or the terms of the subcontract
of an alternative delivery system with the dental plan contractor.
(2) Benefit payment. Beneficiaries are not required to utilize
participating providers. For beneficiaries who do use these
participating providers, however, these providers shall not balance bill
any amount in excess of the maximum payment allowed by the dental plan
contractor for covered services. Beneficiaries using nonparticipating
providers may be balance-billed amounts in excess of the dental plan
contractor's determination of allowable charges. The following general
requirements for the TDP benefit payment methodology shall be met,
subject to modifications and exceptions approved by the Director,
OCHAMPUS, or designee:
(i) Nonparticipating providers (or the Beneficiaries or active duty,
Selected Reserve or Individual Ready Reserve members for unassigned
claims) shall be reimbursed at the lesser of the provider's actual
charge: Or the network maximum allowable charge for similar services for
that same locality (region) or state, whichever is lower, subject to the
exception listed in paragraph (e)(3)(ii) of this section, less any cost-
share amount due for authorized services. The network maximum allowable
charge is the maximum negotiated fee between the dental contractor and
any TDP participating provider for similar services covered by the
dental plan in that same locality (region) or state.
(ii) Participating providers shall be reimbursed in accordance with
the contractor's network agreements, less any cost-share amount due for
authorized services.
(3) Fraud, abuse, and conflict of interest. The provisions of Sec.
199.9 shall apply except for Sec. 199.9(e). All references to ``CHAMPUS
contractors'', ``CHAMPUS beneficiaries'' and ``CHAMPUS providers'' in
Sec. 199.9 shall be construed to mean the ``dental plan contractor'',
``TDP beneficiaries'' and ``TPD providers'' respectively for the
purposes of this section. Examples of fraud include situations in which
ineligible persons not enrolled in the TDP obtain care and file claims
for benefits under the
[[Page 277]]
name and identification of a beneficiary; or when providers submit
claims for services and supplies not rendered to Beneficiaries; or when
a participating provider bills the beneficiary for amounts over the
dental plan contractor's determination of allowable charges; or when a
provider fails to collect the specified patient cost-share amount.
(h) Appeal and hearing procedures. The provisions of Sec. 199.10
shall apply except where noted in this section. All references to
``CHAMPUS contractors'', ``CHAMPUS beneficiaries'', ``CHAMPUS
participating providers'' and ``CHAMPUS Explanation of Benefits'' in
Sec. 199.10 shall be construed to mean the ``dental plan contractor'',
``TDP beneficiaries'', ``TDP participating providers'' and ``Dental
Explanation of Benefits or DEOB'' respectively for the purposes of this
section. References to ``OCHAMPUSEUR'' in Sec. 199.10 are not
applicable to the TDP or this section.
(1) General. See Sec. 199.10(a).
(i) Initial determination--(A) Notice of initial determination and
right to appeal. See Sec. 199.10(a)(1)(i).
(B) Effect of initial determination. See Sec. 199.10(a)(1)(ii).
(ii) Participation in an appeal. Participation in an appeal is
limited to any party to the initial determination, including OCHAMPUS,
the dental plan contractor, and authorized representatives of the
parties. Any party to the initial determination, except OCHAMPUS and the
dental plan contractor, may appeal an adverse determination. The
appealing party is the party who actually files the appeal.
(A) Parties to the initial determination. See Sec. Sec.
199.10(a)(2)(i) and 199.10(a)(2)(i) (A), (B), (C) and (E). In addition,
a third party other than the dental plan contractor, such as an
insurance company, is not a party to the initial determination and is
not entitled to appeal, even though it may have an indirect interest in
the initial determination.
(B) Representative. See Sec. 199.10(a)(2)(ii).
(iii) Burden of proof. See Sec. 199.10(a)(3).
(iv) Evidence in appeal and hearing cases. See Sec. 199.10(a)(4).
(v) Late filing. If a request for reconsideration, formal review, or
hearing is filed after the time permitted in this section, written
notice shall be issued denying the request. Late filing may be permitted
only if the appealing party reasonably can demonstrate to the
satisfaction of the dental plan contractor, or the Director, OCHAMPUS,
or designee, that timely filing of the request was not feasible due to
extraordinary circumstances over which the appealing party had no
practical control. Each request for an exception to the filing
requirement will be considered on its own merits. The decision of the
Director, OCHAMPUS, or a designee, on the request for an exception to
the filing requirement shall be final.
(vi) Appealable issue. See Sec. Sec. 199.10(a)(6), 199.10(a)(6)(i),
199.10(a)(6)(iv), including Sec. Sec. 199.10(a)(6)(iv) (A) and (C), and
199.10(a)(6)(v) for an explanation and examples of non-appealable
issues. Other examples of issues that are not appealable under this
section include:
(A) The amount of the dental plan contractor-determined allowable
charge since the methodology constitutes a limitation on benefits under
the provisions of this section.
(B) Certain other issues on the basis that the authority for the
initial determination is not vested in OCHAMPUS. Such issues include but
are not limited to the following examples:
(1) A determination of a person's enrollment in the TDP is the
responsibility of the dental plan contractor and ultimate responsibility
for resolving a beneficiary's enrollment rests with the dental plan
contractor. Accordingly, a disputed question of fact concerning a
beneficiary's enrollment will not be considered an appealable issue
under the provisions of this section, but shall be resolved in
accordance with paragraph (c) of this section and the dental plan
contractor's enrollment policies and procedures.
(2) Decisions relating to the issuance of a nonavailability
statement (NAS) in each case are made by the Uniformed Services.
Disputes over the need for an NAS or a refusal to issue an NAS are not
appealable under this section. The one exception is when a dispute
arises over whether the facts of
[[Page 278]]
the case demonstrate a dental emergency for which an NAS is not
required. Denial of payment in this one situation is an appealable
issue.
(3) Any decision or action on the part of the dental plan contractor
to include a provider in their network or to designate a provider as
participating is not appealable under this section. Similarly, any
decision or action on the part of the dental plan contractor to exclude
a provider from their network or to deny participating provider status
is not appealable under this section.
(vii) Amount in dispute--(A) General. An amount in dispute is
required for an adverse determination to be appealed under the
provisions of this section, except as set forth or further explained in
Sec. 199.10(a)(7)(ii), (iii) and (iv).
(B) Calculated amount. The amount in dispute is calculated as the
amount of money the dental plan contractor would pay if the services
involved in the dispute were determined to be authorized benefits of the
TDP. Examples of amounts of money that are excluded by this section from
payments for authorized benefits include, but are not limited to:
(1) Amounts in excess of the dental plan contractor's--determined
allowable charge.
(2) The beneficiary's cost-share amounts.
(3) Amounts that the beneficiary, or parent, guardian, or other
responsible person has no legal obligation to pay.
(4) Amounts excluded under the provisions of Sec. 199.8 of this
part.
(viii) Levels of appeal. See Sec. 199.10(a)(8)(i). Initial
determinations involving the sanctioning (exclusion, suspension, or
termination) of TDP providers shall be appealed directly to the hearing
level.
(ix) Appeal decision. See Sec. 199.10(a)(9).
(2) Reconsideration. See Sec. 199.10(b).
(3) Formal review. See Sec. 199.10(c).
(4) Hearing--(i) General. See Sec. Sec. 1.99.10(d) and 199.10(d)(1)
through (d)(5) and (d0(7) through (d)(12) for information on the hearing
process.
(ii) Authority of the hearing officer. The hearing officer, in
exercising the authority to conduct a hearing under this part, will be
bound by 10 U.S.C., chapter 55, and this part. The hearing officer in
addressing substantive, appealable issues shall be bound by the dental
benefits brochure applicable for the date(s) of service, policies,
procedures, instructions and other guidelines issued by the ASD(HA), or
a designee, or by the Director, OCHAMPUS, or a designee, in effect for
the period in which the matter in dispute arose. A hearing officer may
not establish or amend the dental benefits brochure, policy, procedures,
instructions, or guidelines. However, the hearing officer may recommend
reconsideration of the policy, procedures, instructions or guidelines by
the ASD (HA), or a designee, when the final decisions is issued in the
case.
(5) Final decision. See Sec. Sec. 199.10(e)(1) and 199.10(e)(1)(i)
for information on final decisions in the appeal and hearing process,
with the exception that no recommended decision shall be referred for
review by ASD(HA).
(i) Implementing Instructions. The Director, TRICARE Management
Activity or designee may issue TRICARE Dental Program policies,
standards, and criteria as may be necessary to implement the intent of
this section.
[66 FR 12860, Mar. 1, 2001; 66 FR 16400, Mar. 26, 2001, as amended at 68
FR 65174, Nov. 19, 2003; 69 FR 55359, Sept. 14, 2004; 70 FR 55252, Sept.
21, 2005; 71 FR 1696, Jan. 11, 2006; 71 FR 66872, Nov. 17, 2006; 72 FR
53685, Sept. 20, 2007; 76 FR 57643, Sept. 16, 2011; 76 FR 81367, Dec.
28, 2011; 80 FR 55254, Sept. 15, 2015; 81 FR 11667, Mar. 7, 2016]
Sec. 199.14 Provider reimbursement methods.
(a) Hospitals. The CHAMPUS-determined allowable cost for
reimbursement of a hospital shall be determined on the basis of one of
the following methodologies.
(1) CHAMPUS Diagnosis Related Group (DRG)-based payment system.
Under the CHAMPUS DRG-based payment system, payment for the operating
costs of inpatient hospital services furnished by hospitals subject to
the system is made on the basis of prospectively-determined rates and
applied on a per discharge basis using DRGs. Payments under this system
will include a differentiation for urban (using large urban and other
urban areas) and rural hospitals and an adjustment for area wage
differences and indirect medical
[[Page 279]]
education costs. Additional payments will be made for capital costs,
direct medical education costs, and outlier cases.
(i) General--(A) DRGs used. The CHAMPUS DRG-based payment system
will use the same DRGs used in the most recently available grouper for
the Medicare Prospective Payment System, except as necessary to
recognize distinct characteristics of CHAMPUS beneficiaries and as
described in instructions issued by the Director, OCHAMPUS.
(B) Assignment of discharges to DRGs. (1) The classification of a
particular discharge shall be based on the patient's age, sex, principal
diagnosis (that is, the diagnosis established, after study, to be
chiefly responsible for causing the patient's admission to the
hospital), secondary diagnoses, procedures performed and discharge
status. In addition, for neonatal cases (other than normal newborns) the
classification shall also account for birthweight, surgery and the
presence of multiple, major and other neonatal problems, and shall
incorporate annual updates to these classification features.
(2) Each discharge shall be assigned to only one DRG regardless of
the number of conditions treated or services furnished during the
patient's stay.
(C) Basis of payment--(1) Hospital billing. Under the CHAMPUS DRG-
based payment system, hospitals are required to submit claims (including
itemized charges) in accordance with Sec. 199.7(b). The CHAMPUS fiscal
intermediary will assign the appropriate DRG to the claim based on the
information contained in the claim. Any request from a hospital for
reclassification of a claim to a higher weighted DRG must be submitted,
within 60 days from the date of the initial payment, in a manner
prescribed by the Director, OCHAMPUS.
(2) Payment on a per discharge basis. Under the CHAMPUS DRG-based
payment system, hospitals are paid a predetermined amount per discharge
for inpatient hospital services furnished to CHAMPUS beneficiaries.
(3) Pricing of claims. All final claims with discharge dates of
September 30, 2014, or earlier that are reimbursed under the CHAMPUS
DRG-based payment system are to be priced as of the date of admission,
regardless of when the claim is submitted. All final claims with
discharge dates of October 1, 2014, or later that are reimbursed under
the CHAMPUS DRG-based payment system are to be priced as of the date of
discharge.
(4) Payment in full. The DRG-based amount paid for inpatient
hospital services is the total CHAMPUS payment for the inpatient
operating costs (as described in paragraph (a)(1)(i)(C)(5) of this
section) incurred in furnishing services covered by the CHAMPUS. The
full prospective payment amount is payable for each stay during which
there is at least one covered day of care, except as provided in
paragraph (a)(1)(iii)(E)(1)(i)(A) of this section.
(5) Inpatient operating costs. The CHAMPUS DRG-based payment system
provides a payment amount for inpatient operating costs, including:
(i) Operating costs for routine services, such as the costs of room,
board, and routine nursing services;
(ii) Operating costs for ancillary services, such as hospital
radiology and laboratory services (other than physicians' services)
furnished to hospital inpatients;
(iii) Special care unit operating costs; and
(iv) Malpractice insurance costs related to services furnished to
inpatients.
(6) Discharges and transfers--(i) Discharges. A hospital inpatient
is discharged when:
(A) The patient is formally released from the hospital (release of
the patient to another hospital as described in paragraph
(a)(1)(i)(C)(6)(ii) of this section, or a leave of absence from the
hospital, will not be recognized as a discharge for the purpose of
determining payment under the CHAMPUS DRG-based payment system);
(B) The patient dies in the hospital; or
(C) The patient is transferred from the care of a hospital included
under the CHAMPUS DRG-based payment system to a hospital or unit that is
excluded from the prospective payment system.
[[Page 280]]
(ii) Transfers. Except as provided under paragraph
(a)(1)(i)(C)(6)(i) of this section, a discharge of a hospital inpatient
is not counted for purposes of the CHAMPUS DRG-based payment system when
the patient is transferred:
(A) From one inpatient area or unit of the hospital to another area
or unit of the same hospital;
(B) From the care of a hospital included under the CHAMPUS DRG-based
payment system to the care of another hospital paid under this system;
(C) From the care of a hospital included under the CHAMPUS DRG-based
payment system to the care of another hospital that is excluded from the
CHAMPUS DRG-based payment system because of participation in a statewide
cost control program which is exempt from the CHAMPUS DRG-based payment
system under paragraph (a)(1)(ii)(A) of this section; or
(D) From the care of a hospital included under the CHAMPUS DRG-based
payment system to the care of a uniformed services treatment facility.
(iii) Payment in full to the discharging hospital. The hospital
discharging an inpatient shall be paid in full under the CHAMPUS DRG-
based payment system.
(iv) Payment to a hospital transferring an inpatient to another
hospital. If a hospital subject to the CHAMPUS DRG-based payment system
transfers an inpatient to another such hospital, the transferring
hospital shall be paid a per diem rate (except that in neonatal cases,
other than normal newborns, the hospital will be paid at 125 percent of
that per diem rate), as determined under instructions issued by TSO, for
each day of the patient's stay in that hospital, not to exceed the DRG-
based payment that would have been paid if the patient had been
discharged to another setting. For admissions occurring on or after
October 1, 1995, the transferring hospital shall be paid twice the per
diem rate for the first day of any transfer stay, and the per diem
amount for each subsequent day, up to the limit described in this
paragraph.
(v) Additional payments to transferring hospitals. A transferring
hospital may qualify for an additional payment for extraordinary cases
that meet the criteria for long-stay or cost outliers.
(D) DRG system updates. The CHAMPUS DRG-based payment system is
modeled on the Medicare Prospective Payment System (PPS) and uses
annually updated items and numbers from the Medicare PPS as provided for
in this part and in instructions issued by the Director, DHA. The
effective date of these items and numbers shall not correspond to that
under Medicare PPS but shall be delayed until January 1, to align with
TRICARE's program year reporting. This allows for an administrative
simplicity that optimizes healthcare delivery by reducing existing
administrative burden and costs.
(ii) Applicability of the DRG system--(A) Areas affected. The
CHAMPUS DRG-based payment system shall apply to hospitals' services in
the fifty states, the District of Columbia, and Puerto Rico, except that
any state which has implemented a separate DRG-based payment system or
similar payment system in order to control costs and is exempt from the
Medicare Prospective Payment System may be exempt from the CHAMPUS DRG-
based payment system if it requests exemption in writing, and provided
payment under such system does not exceed payment which would otherwise
be made under the CHAMPUS DRG-based payment system.
(B) Services subject to the DRG-based payment system. All normally
covered inpatient hospital services furnished to CHAMPUS beneficiaries
by hospitals are subject to the CHAMPUS DRG-based payment system.
(C) Services exempt from the DRG-based payment system. The following
hospital services, even when provided in a hospital subject to the
CHAMPUS DRG-based payment system, are exempt from the CHAMPUS DRG-based
payment system. The services in paragraphs (a)(1)(ii)(C)(1) through
(a)(1)(ii)(C)(4) and (a)(1)(ii)(C)(7) through (a)(1)(ii)(C)(9) of this
section shall be reimbursed under the procedures in paragraph (a)(4) of
this section, and the services in paragraphs (a)(1)(ii)(C)(5) and
(a)(1)(ii)(C)(6) of this section shall be reimbursed under the
procedures in paragraph (j) of this section.
[[Page 281]]
(1) Services provided by hospitals exempt from the DRG-based payment
system.
(2) All services related to solid organ acquisition for CHAMPUS
covered transplants by CHAMPUS-authorized transplantation centers.
(3) All services related to heart and liver transplantation for
admissions prior to October 1, 1998, which would otherwise be paid under
the respective DRG.
(4) All services related to CHAMPUS covered solid organ
transplantations for which there is no DRG assignment.
(5) All professional services provided by hospital-based physicians.
(6) All services provided by nurse anesthetists.
(7) All services related to discharges involving pediatric bone
marrow transplants (patient under 18 at admission).
(8) All services related to discharges involving children who have
been determined to be HIV seropositive (patient under 18 at admission).
(9) All services related to discharges involving pediatric cystic
fibrosis (patient under 18 at admission).
(10) For admissions occurring on or after October 1, 1990, and
before October 1, 1994, and for discharges occurring on or after October
1, 1997, the costs of blood clotting factor for hemophilia inpatients.
An additional payment shall be made to a hospital for each unit of blood
clotting factor furnished to a CHAMPUS inpatient who is hemophiliac in
accordance with the amounts established under the Medicare Prospective
Payment System (42 CFR 412.115).
(D) Hospitals subject to the CHAMPUS DRG-based payment system. All
hospitals within the fifty states, the District of Columbia, and Puerto
Rico which are certified to provide services to CHAMPUS beneficiaries
are subject to the DRG-based payment system except for the following
hospitals or hospital units which are exempt.
(1) Psychiatric hospitals. A psychiatric hospital which is exempt
from the Medicare Prospective Payment System is also exempt from the
CHAMPUS DRG-based payment system. In order for a psychiatric hospital
which does not participate in Medicare to be exempt from the CHAMPUS
DRG-based payment system, it must meet the same criteria (as determined
by the Director, OCHAMPUS, or a designee) as required for exemption from
the Medicare Prospective Payment System as contained in 42 CFR 412.23.
(2) Inpatient Rehabilitation Facilities (IRF). Prior to
implementation of the IRF PPS methodology described in paragraph (a)(10)
of this section, an inpatient rehabilitation facility which is exempt
from the Medicare prospective payment system is also exempt from the
TRICARE DRG-based payment system.
(3) Psychiatric and rehabilitation units (distinct parts). Prior to
implementation of the IRF PPS methodology described in paragraph (a)(10)
of this section, a rehabilitation unit which is exempt from the Medicare
prospective payment system is also exempt from the TRICARE DRG-based
payment system. A psychiatric unit which is exempt from the Medicare
prospective payment system is also exempt from the TRICARE DRG-based
payment system.
(4) Long Term Care Hospitals. Prior to implementation of the LTCH
PPS methodology described in paragraph (a)(9) of this section, a long-
term care hospital which is exempt from the Medicare prospective payment
system is also exempt from the CHAMPUS DRG-based payment system.
(5) Hospitals within hospitals. A hospital within a hospital which
is exempt from the Medicare prospective payment system is also exempt
from the CHAMPUS DRG-based payment system. In order for a hospital
within a hospital which does not participate in Medicare to be exempt
from the CHAMPUS DRG-based payment system, it must meet the same
criteria (as determined by the Director, TSO, or a designee) as required
for exemption from the Medicare Prospective Payment System as contained
in 42 CFR 412.22 and the criteria for one or more of the excluded
hospital classifications described in Sec. 412.23 of Title 42 CFR.
(6) Sole community hospitals (SCHs). Prior to implementation of the
SCH reimbursement method described in paragraph (a)(7) of this section,
any hospital that has qualified for special
[[Page 282]]
treatment under the Medicare prospective payment system as an SCH (see
subpart G of 42 CFR part 412) and has not given up that classification
is exempt from the CHAMPUS DRG-based payment system.
(7) Christian Science sanitoriums. All Christian Science sanitoriums
(as defined in paragraph (b)(4)(viii) of Sec. 199.6) are exempt from
the CHAMPUS DRG-based payment system.
(8) Cancer hospitals. Any hospital which qualifies as a cancer
hospital under the Medicare standards and has elected to be exempt from
the Medicare prospective payment system is exempt from the CHAMPUS DRG-
based payment system. (See 42 CFR 412.94.)
(9) Hospitals outside the 50 states, the District of Columbia, and
Puerto Rico. A hospital is excluded from the CHAMPUS DRG-based payment
system if it is not located in one of the fifty States, the District of
Colubmia, or Puerto Rico.
(10) CAHs. Effective December 1, 2009, any facility which has been
designated and certified as a CAH as contained in 42 CFR Part 485.606 is
exempt from the CHAMPUS DRG-based payment system.
(E) Hospitals which do not participate in Medicare. Any hospital
which is subject to the CHAMPUS DRG-based payment system and which
otherwise meets CHAMPUS requirements but which is not a Medicare-
participating provider (having completed a form HCA-1514, Hospital
Request for Certification in the Medicare/Medicaid Program and a form
HCFA-1561, Health Insurance Benefit Agreement) must complete a
participation agreement with TRICARE. By completing the participation
agreement, the hospital agrees to participate on all CHAMPUS inpatient
claims and to accept the CHAMPUS-determined allowable amount as payment
in full for these claims. Any hospital which does not participate in
Medicare and does not complete a participation agreement with TRICARE
will not be authorized to provide services to TRICARE beneficiaries.
(F) Substance Use Disorder Rehabilitation facilities. With
admissions on or after July 1, 1995, substance use disorder
rehabilitation facilities, authorized under Sec. 199.6(b)(4)(xiv), are
subject to the DRG-based payment system.
(iii) Determination of payment amounts. The actual payment for an
individual claim under the CHAMPUS DRG-based payment system is
calculated by multiplying the appropriate adjusted standardized amount
(adjusted to account for area wage differences using the wage indexes
used in the Medicare program) by a weighting factor specific to each
DRG.
(A) Calculation of DRG weights--(1) Grouping of charges. All
discharge records in the database shall be grouped by DRG.
(2) Remove DRGs. Those DRGs that represent discharges with invalid
data or diagnoses insufficient for DRG assignment purposes are removed
from the database.
(3) Indirect medical education standardization. To standardize the
charges for the cost effects of indirect medical education factors, each
teaching hospital's charges will be divided by 1.0 plus the following
ratio on a hospital-specific basis:
[GRAPHIC] [TIFF OMITTED] TC15NO91.042
(4) Wage level standardization. To standardize the charge records
for area wage differences, each charge record will be divided into
labor-related and nonlabor-related portions, and the labor-related
portion shall be divided by the most recently available Medicare wage
index for the area. The labor-related and nonlabor-related portions will
then be added together.
(5) Elimination of statistical outliers. All unusually high or low
charges shall be removed from the database.
[[Page 283]]
(6) Calculation of DRG average charge. After the standardization for
indirect medical education, and area wage differences, an average charge
for each DRG shall be computed by summing charges in a DRG and dividing
that sum by the number of records in the DRG.
(7) Calculation of national average charge per discharge. A national
average charge per discharge shall be calculated by summing all charges
and dividing that sum by the total number of records from all DRG
categories.
(8) DRG relative weights. DRG relative weights shall be calculated
for each DRG category by dividing each DRG average charge by the
national average charge.
(B) Empty and low-volume DRGs. For any DRG with less than ten (10)
occurrences in the CHAMPUS database, the Director, TSO, or designee, has
the authority to consider alternative methods for estimating CHAMPUS
weights in these low-volume DRG categories.
(C) Updating DRG weights. The CHAMPUS DRG weights shall be updated
or adjusted as follows:
(1) DRG weights shall be recalculated annually using CHAMPUS charge
data and the methodology described in paragraph (a)(1)(iii)(A) of this
section.
(2) When a new DRG is created, CHAMPUS will, if practical, calculate
a weight for it using an appropriate charge sample (if available) and
the methodology described in paragraph (a)(1)(iii)(A) of this section.
(3) In the case of any other change under Medicare to an existing
DRG weight (such as in connection with technology changes), CHAMPUS
shall adjust its weight for that DRG in a manner comparable to the
change made by Medicare.
(D) Calculation of the adjusted standardized amounts. The following
procedures shall be followed in calculating the CHAMPUS adjusted
standardized amounts. (1) Differentiate large urban and other area
charges. All charges in the database shall be sorted into large urban
and other area groups (using the same definitions for these categories
used in the Medicare program. The following procedures will be applied
to each group.
(2) Indirect medical education standardization. To standardize the
charges for the cost effects of indirect medical education factors, each
teaching hospital's charges will be divided by 1.0 plus the following
ratio on a hospital-specific basis:
[GRAPHIC] [TIFF OMITTED] TC15NO91.043
(3) Wage level standardization. To standardize the charge records
for area wage differences, each charge record will be divided into
labor-related and nonlabor-related portions, and the labor-related
portion shall be divided by the most recently available Medicare wage
index for the area. The labor-related and nonlabor-related portions will
then be added together.
(4) Apply the cost to charge ratio. Each charge is to be reduced to
a representative cost by using the Medicare cost to charge ratio. This
amount shall be increased by 1 percentage point in order to reimburse
hospitals for bad debt expenses attributable to CHAMPUS beneficiaries.
(5) Preliminary base year standardized amount. A preliminary base
year standardized amount shall be calculated by summing all costs in the
database applicable to the large urban or other area group and dividing
by the total number of discharges in the respective group.
(6) Update for inflation. The preliminary base year standardized
amounts shall be updated using an annual update factor equal to 1.07 to
produce fiscal year 1988 preliminary standardized amounts. Therefore,
any development of a new standardized amount will use an inflation
factor equal to the hospital market basket index used by the
[[Page 284]]
Health Care Financing Administration in their Prospective Payment
System.
(7) The preliminary standardized amounts, updated for inflation,
shall be divided by a system standardization factor so that total DRG
outlays, given the database distribution across hospitals and diagnosis,
are equal to the total charges reduced to costs.
(8) Labor and nonlabor portions of the adjusted standardized
amounts. The adjusted standardized amounts shall be divided into labor
and nonlabor portions in accordance with the Medicare division of labor
and nonlabor portions.
(E) Adjustments to the DRG-based payments amounts. The following
adjustments to the DRG-based amounts (the weight multiplied by the
adjusted standardized amount) will be made.
(1) Outliers. The DRG-based payment to a hospital shall be adjusted
for atypical cases. These outliers are those cases that have either an
unusually short length-of-stay or extremely long length-of-stay or that
involve extraordinarily high costs when compared to most discharges
classified in the same DRG. Cases which qualify as both a length-of-stay
outlier and a cost outlier shall be paid at the rate which results in
the greater payment.
(i) Length-of-stay outliers. Length-of-stay outliers shall be
identified and paid by the fiscal intermediary when the claims are
processed.
(A) Short-stay outliers. Any discharge with a length-of-stay (LOS)
less than 1.94 standard deviations from the DRG's arithmetic LOS shall
be classified as a short-stay outlier. Short-stay outliers shall be
reimbursed at 200 percent of the per diem rate for the DRG for each
covered day of the hospital stay, not to exceed the DRG amount. The per
diem rate shall equal the DRG amount divided by the arithmetic mean
length-of-stay for the DRG.
(B) Long-stay outliers. Any discharge (except for neonatal services
and services in children's hospitals) which has a length-of-stay (LOS)
exceeding a threshold established in accordance with the criteria used
for the Medicare Prospective Payment System as contained in 42 CFR
412.82 shall be classified as a long-stay outlier. Any discharge for
neonatal services or for services in a children's hospital which has a
LOS exceeding the lesser of 1.94 standard deviations or 17 days from the
DRG's arithmetic mean LOS also shall be classified as a long-stay
outlier. Long-stay outliers shall be reimbursed the DRG-based amount
plus a percentage (as established for the Medicare Prospective Payment
System) of the per diem rate for the DRG for each covered day of care
beyond the long-stay outlier threshold. The per diem rate shall equal
the DRG amount divided by the arithmetic mean LOS for the DRG. For
admissions on or after October 1, 1997, the long stay outlier has been
eliminated for all cases except children's hospitals and neonates. For
admissions on or after October 1, 1998, the long stay outlier has been
eliminated for children's hospitals and neonates.
(ii) Cost outliers. Additional payment for cost outliers shall be
made only upon request by the hospital.
(A) Cost outliers except those in children's hospitals or for
neonatal services. Any discharge which has standardized costs that
exceed a threshold established in accordance with the criteria used for
the Medicare Prospective Payment System as contained in 42 CFR 412.84
shall qualify as a cost outlier. The standardized costs shall be
calculated by multiplying the total charges by the factor described in
paragraph (a)(1)(iii)(D)(4) of this section and adjusting this amount
for indirect medical education costs. Cost outliers shall be reimbursed
the DRG-based amount plus a percentage (as established for the Medicare
Prospective Payment System) of all costs exceeding the threshold.
Effective with admissions occurring on or after October 1, 1997, the
standardized costs are no longer adjusted for indirect medical education
costs.
(B) Cost outliers in children's hospitals for neonatal services. Any
discharge for services in a children's hospital or for neonatal services
which has standardized costs that exceed a threshold of the greater of
two times the DRG-based amount or $13,500 shall qualify as a cost
outlier. The standardized costs shall be calculated by multiplying the
total charges by the factor described in paragraph (a)(1) (iii) (D) (4)
[[Page 285]]
of this section (adjusted to include average capital and direct medical
education costs) and adjusting this amount for indirect medical
education costs. Cost outliers for services in children's hospitals and
for neonatal services shall be reimbursed the DRG-based amount plus a
percentage (as established for the Medicare Prospective Payment System)
of all costs exceeding the threshold. Effective with admissions
occurring on or after October 1, 1998, standardized costs are no longer
adjusted for indirect medical education costs. In addition, CHAMPUS will
calculate the outlier payments that would have occurred at each of the
59 Children's hospitals under the FY99 outlier policy for all cases that
would have been outliers under the FY94 policies using the most accurate
data available in September 1998. A ratio will be calculated which
equals the level of outlier payments that would have been made under the
FY94 outlier policies and the outlier payments that would be made if the
FY99 outlier policies had applied to each of these potential outlier
cases for these hospitals. The ratio will be calculated across all
outlier claims for the 59 hospitals and will not be hospital specific.
The ratio will be used to increase cost outlier payments in FY 1999 and
FY 2000, unless the hospital has a negotiated agreement with a managed
care support contractor which would affect this payment. For hospitals
with managed care support agreements which affect these payments,
CHAMPUS will apply these payments if the increased payments would be
consistent with the agreements. In FY 2000 the ratio of outlier payments
(long stay and cost) that would have occurred under the FY 94 policy and
actual cost outlier payments made under the FY 99 policy will be
recalculated. If the ratio has changed significantly, the ratio will be
revised for use in FY 2001 and thereafter. In FY 2002, the actual cost
outlier cases in FY 2000 and 2001 will be reexamined. The ratio of
outlier payments that would have occurred under the FY94 policy and the
actual cost outlier payments made under the FY 2000 and FY 2001
policies. If the ratio has changed significantly, the ratio will be
revised for use in FY 2003.
(C) Cost outliers for burn cases. All cost outliers for DRGs related
to burn cases shall be reimbursed the DRG-based amount plus a percentage
(as established for the Medicare Prospective Payment System) of all
costs exceeding the threshold. The standardized costs and thresholds for
these cases shall be calculated in accordance with Sec.
199.14(a)(1)(iii)(E)(1)(ii)(A) and Sec. 199.14(a)(1)(iii)(E)(1)(ii)(B).
(2) Wage adjustment. CHAMPUS will adjust the labor portion of the
standardized amounts according to the hospital's area wage index.
(3) Indirect medical education adjustment. The wage adjusted DRG
payment will also be multiplied by 1.0 plus the hospital's indirect
medical education ratio.
(4) Children's hospital differential. With respect to claims from
children's hospitals, the appropriate adjusted standardized amount shall
also be adjusted by a children's hospital differential.
(i) Qualifying children's hospitals. Hospitals qualifying for the
children's hospital differential are hospitals that are exempt from the
Medicare Prospective Payment System, or, in the case of hospitals that
do not participate in Medicare, that meet the same criteria (as
determined by the Director, OCHAMPUS, or a designee) as required for
exemption from the Medicare Prospective Payment System as contained in
42 CFR 412.23.
(ii) Calculation of differential. The differential shall be equal to
the difference between a specially calculated children's hospital
adjusted standardized amount and the adjusted standardized amount for
fiscal year 1988. The specially calculated children's hospital adjusted
standardized amount shall be calculated in the same manner as set forth
in Sec. 199.14(a)(1)(iii)(D), except that:
(A) The base period shall be fiscal year 1988 and shall represent
total estimated charges for discharges that occurred during fiscal year
1988.
(B) No cost to charge ratio shall be applied.
(C) Capital costs and direct medical education costs will be
included in the calculation.
[[Page 286]]
(D) The factor used to update the database for inflation to produce
the fiscal year 1988 base period amount shall be the applicable Medicare
inpatient hospital market basket rate.
(iii) Transition rule. Until March 1, 1992, separate differentials
shall be used for each higher volume children's hospital (individually)
and for all other children's hospitals (in the aggregate). For this
purpose, a higher volume hospital is a hospital that had 50 or more
CHAMPUS discharges in fiscal year 1988.
(iv) Hold harmless provision. At such time as the weights initially
assigned to neonatal DRGs are recalibrated based on sufficient volume of
CHAMPUS claims records, children's hospital differentials shall be
recalculated and appropriate retrospective and prospective adjustments
shall be made. To the extent practicable, the recalculation shall also
include reestimated values of other factors (including but not limited
to direct education and capital costs and indirect education factors)
for which more accurate data became available.
(v) No update for inflation. The children's hospital differential,
calculated (and later recalculated under the hold harmless provision)
for the base period of fiscal year 1988, shall not be updated for
subsequent fiscal years.
(vi) Administrative corrections. In connection with determinations
pursuant to paragraph (a)(1)(iii) (E)(4)(iii) of this section, any
children's hospital that believes OCHAMPUS erroneously failed to
classify the hospital as a high volume hospital or incorrectly
calculated (in the case of a high volume hospital) the hospital's
differential may obtain administrative corrections by submitting
appropriate documentation to the Director, OCHAMPUS (or a designee).
(F) Updating the adjusted standardized amounts. Beginning in FY
1989, the adjusted standardized amounts will be updated by the Medicare
annual update factor, unless the adjusted standardized amounts are
recalculated.
(G) Annual cost pass-throughs--(1) Capital costs. When requested in
writing by a hospital, CHAMPUS shall reimburse the hospital its share of
actual capital costs as reported annually to the CHAMPUS fiscal
intermediary. Payment for capital costs shall be made annually based on
the ratio of CHAMPUS inpatient days for those beneficiaries subject to
the CHAMPUS DRG-based payment system to total inpatient days applied to
the hospital's total allowable capital costs. Reductions in payments for
capital costs which are required under Medicare shall also be applied to
payments for capital costs under CHAMPUS.
(i) Costs included as capital costs. Allowable capital costs are
those specified in Medicare Regulation Sec. 413.130, as modified by
Sec. 412.72.
(ii) Services, facilities, or supplies provided by supplying
organizations. If services, facilities, or supplies are provided to the
hospital by a supplying organization related to the hospital within the
meaning of Medicare Regulation Sec. 413.17, then the hospital must
include in its capital-related costs, the capital-related costs of the
supplying organization. However, if the supplying organization is not
related to the provider within the meaning of Sec. 413.17, no part of
the change to the provider may be considered a capital-related cost
unless the services, facilities, or supplies are capital-related in
nature and:
(A) The capital-related equipment is leased or rented by the
provider;
(B) The capital-related equipment is located on the provider's
premises; and
(C) The capital-related portion of the charge is separately
specified in the charge to the provider.
(2) Direct medical education costs. When requested in writing by a
hospital, CHAMPUS shall reimburse the hospital its actual direct medical
education costs as reported annually to the CHAMPUS fiscal intermediary.
Such teaching costs must be for a teaching program approved under
Medicare Regulation Sec. 413.85. Payment for direct medical education
costs shall be made annually based on the ratio of CHAMPUS inpatient
days for those beneficiaries subject to the CHAMPUS DRG-based payment
system to total inpatient days applied to the hospital's total allowable
direct medical education costs. Allowable direct medical education costs
are those specified in Medicare Regulation Sec. 413.85.
[[Page 287]]
(3) Information necessary for payment of capital and direct medical
education costs. All hospitals subject to the CHAMPUS DRG-based payment
system, except for children's hospitals, may be reimbursed for allowed
capital and direct medical education costs by submitting a request to
the CHAMPUS contractor. Beginning October 1, 1998, such request shall be
filed with CHAMPUS on or before the last day of the twelfth month
following the close of the hospitals' cost reporting period, and shall
cover the one-year period corresponding to the hospital's Medicare cost-
reporting period. The first such request may cover a period of less than
a full year--from the effective date of the CHAMPUS DRG-based payment
system to the end of the hospital's Medicare cost-reporting period. All
costs reported to the CHAMPUS contractor must correspond to the costs
reported on the hospital's Medicare cost report. An extension of the due
date for filing the request may only be granted if an extension has been
granted by HCFA due to a provider's operations being significantly
adversely affected due to extraordinary circumstances over which the
provider has no control, such as flood or fire. (If these costs change
as a result of a subsequent audit by Medicare, the revised costs are to
be reported to the hospital's CHAMPUS contractor within 30 days of the
date the hospital is notified of the change). The request must be signed
by the hospital official responsible for verifying the amounts and shall
contain the following information.
(i) The hospital's name.
(ii) The hospital's address.
(iii) The hospital's CHAMPUS provider number.
(iv) The hospital's Medicare provider number.
(v) The period covered--this must correspond to the hospital's
Medicare cost-reporting period.
(vi) Total inpatient days provided to all patients in units subject
to DRG-based payment.
(vii) Total allowed CHAMPUS inpatient days provided in units subject
to DRG-based payment.
(viii) Total allowable capital costs.
(ix) Total allowable direct medical education costs.
(x) Total full-time equivalents for:
(A) Residents.
(B) Interns.
(xi) Total inpatient beds as of the end of the cost-reporting
period. If this has changed during the reporting period, an explanation
of the change must be provided.
(xii) Title of official signing the report.
(xiii) Reporting date.
(xiv) The report shall contain a certification statement that any
changes to the items in paragraphs (a)(1)(iii)(G)(3)(vi), (vii), (viii),
(ix), or (x), which are a result of an audit of the hospital's Medicare
cost-report, shall be reported to CHAMPUS within thirty (30) days of the
date the hospital is notified of the change.
(2) CHAMPUS mental health per diem payment system. The CHAMPUS
mental health per diem payment system shall be used to reimburse for
inpatient mental health hospital care in specialty psychiatric hospitals
and units. Payment is made on the basis of prospectively determined
rates and paid on a per diem basis. The system uses two sets of per
diems. One set of per diems applies to hospitals and units that have a
relatively higher number of CHAMPUS discharges. For these hospitals and
units, the system uses hospital-specific per diem rates. The other set
of per diems applies to hospitals and units with a relatively lower
number of CHAMPUS discharges. For these hospitals and units, the system
uses regional per diems, and further provides for adjustments for area
wage differences and indirect medical education costs and additional
pass-through payments for direct medical education costs.
(i) Applicability of the mental health per diem payment system--(A)
Hospitals and units covered. The CHAMPUS mental health per diem payment
system applies to services covered (see paragraph (a)(2)(i)(B) of this
section) that are provided in Medicare prospective payment system (PPS)
exempt psychiatric specialty hospitals and all Medicare PPS exempt
psychiatric specialty units of other hospitals. In addition, any
psychiatric hospital that does
[[Page 288]]
not participate in Medicare, or any other hospital that has a
psychiatric specialty unit that has not been so designated for exemption
from the Medicare prospective payment system because the hospital does
not participate in Medicare, may be designated as a psychiatric hospital
or psychiatric specialty unit for purposes of the CHAMPUS mental health
per diem payment system upon demonstrating that it meets the same
criteria (as determined by the Director, OCHAMPUS) as required for the
Medicare exemption. The CHAMPUS mental health per diem payment system
does not apply to mental health services provided in other hospitals.
(B) Services covered. Unless specifically exempted, all covered
hospitals' and units' inpatient claims which are classified into a
mental health DRG (DRG categories 425-432, but not DRG 424) or an
alcohol/drug abuse DRG (DRG categories 433-437) shall be subject to the
mental health per diem payment system.
(ii) Hospital-specific per diems for higher volume hospitals and
units. This paragraph describes the per diem payment amounts for
hospitals and units with a higher volume of CHAMPUS discharges.
(A)(1) Per diem amount. A hospital-specific per diem amount shall be
calculated for each hospital and unit with a higher volume of CHAMPUS
discharges. The base period per diem amount shall be equal to the
hospital's average daily charge in the base period. The base period
amount, however, may not exceed the cap described in paragraph
(a)(2)(ii)(B) of this section. The base period amount shall be updated
in accordance with paragraph (a)(2)(iv) of this section.
(2) In states that have implemented a payment system in connection
with which hospitals in that state have been exempted from the CHAMPUS
DRG-based payment system pursuant to paragraph (a)(1)(ii)(A) of this
section, psychiatric hospitals and units may have per diem amounts
established based on the payment system applicable to such hospitals and
units in the state. The per diem amount, however, may not exceed the cap
amount applicable to other higher volume hospitals.
(B) Cap--(1) As it affects payment for care provided to patients
prior to April 6, 1995, the base period per diem amount may not exceed
the 80th percentile of the average daily charge weighted for all
discharges throughout the United States from all higher volume
hospitals.
(2) Applicable to payments for care provided to patients on or after
April 6, 1996, the base period per diem amount may not exceed the 70th
percentile of the average daily charge weighted for all discharges
throughout the United States from all higher volume hospitals. For this
purpose, base year charges shall be deemed to be charges during the
period of July 1, 1991 to June 30, 1992, adjusted to correspond to base
year (FY 1988) charges by the percentage change in average daily charges
for all higher volume hospitals and units between the period of July 1,
1991 to June 30, 1992 and the base year.
(C) Review of per diem. Any hospital or unit which believes OCHAMPUS
calculated a hospital-specific per diem which differs by more than $5.00
from that calculated by the hospital or unit may apply to the Director,
OCHAMPUS, or a designee, for a recalculation. The burden of proof shall
be on the hospital.
(iii) Regional per diems for lower volume hospitals and units. This
paragraph describes the per diem amounts for hospitals and units with a
lower volume of CHAMPUS discharges.
(A) Per diem amounts. Hospitals and units with a lower volume of
CHAMPUS patients shall be paid on the basis of a regional per diem
amount, adjusted for area wages and indirect medical education. Base
period regional per diems shall be calculated based upon all CHAMPUS
lower volume hospitals' claims paid during the base period. Each
regional per diem amount shall be the quotient of all covered charges
divided by all covered days of care, reported on all CHAMPUS claims from
lower volume hospitals in the region paid during the base period, after
having standardized for indirect medical education costs and area wage
indexes and subtracted direct medical education costs. Regional per diem
amounts are adjusted in accordance
[[Page 289]]
with paragraph (a)(2)(iii)(C) of this section. Additional pass-through
payments to lower volume hospitals are made in accordance with paragraph
(a)(2)(iii)(D) of this section. The regions shall be the same as the
Federal census regions.
(B) Review of per diem amount. Any hospital that believes the
regional per diem amount applicable to that hospital has been
erroneously calculated by OCHAMPUS by more than $5.00 may submit to the
Director, OCHAMPUS, or a designee, evidence supporting a different
regional per diem. The burden of proof shall be on the hospital.
(C) Adjustments to regional per diems. Two adjustments shall be made
to the regional per diem rates.
(1) Area wage index. The same area wage indexes used for the CHAMPUS
DRG-based payment system (see paragraph (a)(1)(iii)(E)(2) of this
section) shall be applied to the wage portion of the applicable regional
per diem rate for each day of the admission. The wage portion shall be
the same as that used for the CHAMPUS DRG-based payment system.
(2) Indirect medical education. The indirect medical education
adjustment factors shall be calculated for teaching hospitals in the
same manner as is used in the CHAMPUS DRG-based payment system (see
paragraph (a)(1)(iii)(E)(3) of this section) and applied to the
applicable regional per diem rate for each day of the admission.
(D) Annual cost pass-through for direct medical education. In
addition to payments made to lower volume hospitals under paragraph
(a)(2)(iii) of this section, CHAMPUS shall annually reimburse hospitals
for actual direct medical education costs associated with services to
CHAMPUS beneficiaries. This reimbursement shall be done pursuant to the
same procedures as are applicable to the CHAMPUS DRG-based payment
system (see paragraph (a)(1)(iii)(G) of this section).
(iv) Base period and update factors--(A) Base period. The base
period for calculating the hospital-specific and regional per diems, as
described in paragraphs (a)(2)(ii) and (a)(2)(iii) of this section, is
Federal fiscal year 1988. Base period calculations shall be based on
actual claims paid during the period July 1, 1987 through May 31, 1988,
trended forward to represent the 12-month period ending September 30,
1988 on the basis of the Medicare inpatient hospital market basket rate.
(B) Alternative hospital-specific data base. Upon application of a
higher volume hospital or unit to the Director, OCHAMPUS, or a designee,
the hospital or unit may have its hospital-specific base period
calculations based on claims with a date of discharge (rather than date
of payment) between July 1, 1987 through May 31, 1988 if it has
generally experienced unusual delays in claims payments and if the use
of such an alternative data base would result in a difference in the per
diem amount of at least $5.00. For this purpose, the unusual delays
means that the hospital's or unit's average time period between date of
discharge and date of payment is more than two standard deviations
longer than the national average.
(C) Update factors--(1) The hospital-specific per diems and the
regional per diems calculated for the base period pursuant to paragraphs
(a)(2)(ii) of this section shall remain in effect for federal fiscal
year 1989; there will be no additional update for fiscal year 1989.
(2) Except as provided in paragraph (a)(2)(iv)(C)(3) of this
section, for subsequent federal fiscal years, each per diem shall be
updated by the Medicare Inpatient Prospective Payment System update
factor.
(3) As an exception to the update required by paragraph
(a)(2)(iv)(C)(2) of this section, all per diems in effect at the end of
fiscal year 1995 shall remain in effect, with no additional update,
throughout fiscal years 1996 and 1997. For fiscal year 1998 and
thereafter, the per diems in effect at the end of fiscal year 1997 will
be updated in accordance with paragraph (a)(2)(iv)(C)(2).
(4) Hospitals and units with hospital-specific rates will be
notified of their respective rates prior to the beginning of each
Federal fiscal year. New hospitals shall be notified at such time as the
hospital rate is determined. The actual amount of each regional per diem
that will apply in any Federal fiscal year shall be posted to the
Agency's official Web site at the start of that fiscal year.
[[Page 290]]
(v) Higher volume hospitals. This paragraph describes the
classification of and other provisions pertinent to hospitals with a
higher volume of CHAMPUS patients.
(A) In general. Any hospital or unit that had an annual rate of 25
or more CHAMPUS discharges of CHAMPUS patients during the period July 1,
1987 through May 31, 1988 shall be considered a higher volume hospital
has 25 or more CHAMPUS discharges, that hospital shall be considered to
be a higher volume hospital during Federal fiscal year 1989 and all
subsequent fiscal years. All other hospitals and units covered by the
CHAMPUS mental health per diem payment system shall be considered lower
volume hospitals.
(B) Hospitals that subsequently become higher volume hospitals. In
any Federal fiscal year in which a hospital, including a new hospital
(see paragraph (a)(2)(v)(C) of this section), not previously classified
as a higher volume hospital has 25 or more CHAMPUS discharges, that
hospital shall be considered to be a higher volume hospital during the
next Federal fiscal year and all subsequent fiscal years. The hospital
specific per diem amount shall be calculated in accordance with the
provisions of paragraph (a)(2)(ii) of this section, except that the base
period average daily charge shall be deemed to be the hospital's average
daily charge in the year in which the hospital had 25 or more
discharges, adjusted by the percentage change in average daily charges
for all higher volume hospitals and units between the year in which the
hospital had 25 or more CHAMPUS discharges and the base period. The base
period amount, however, may not exceed the cap described in paragraph
(a)(2)(ii)(B) of this section.
(C) Special retrospective payment provision for new hospitals. For
purposes of this paragraph, a new hospital is a hospital that qualifies
for the Medicare exemption from the rate of increase ceiling applicable
to new hospitals which are PPS-exempt psychiatric hospitals. Any new
hospital that becomes a higher volume hospital, in addition to
qualifying prospectively as a higher volume hospital for purposes of
paragraph (a)(2)(v)(B) of this section, may additionally, upon
application to the Director, OCHAMPUS, receive a retrospective
adjustment. The retrospective adjustment shall be calculated so that the
hospital receives the same government share payments it would have
received had it been designated a higher volume hospital for the federal
fiscal year in which it first had 25 or more CHAMPUS discharges and the
preceding fiscal year (if it had any CHAMPUS patients during the
preceding fiscal year). Such new hospitals must agree not to bill
CHAMPUS beneficiaries for any additional costs beyond that determined
initially.
(D) Review of classification. Any hospital or unit which OCHAMPUS
erroneously fails to classify as a higher volume hospital may apply to
the Director, OCHAMPUS, or a designee, for such a classification. The
hospital shall have the burden of proof.
(vi) Payment for hospital based professional services. Lower volume
hospitals and units may not bill separately for hospital based
professional mental health services; payment for those services is
included in the per diems. Higher volume hospitals and units, whether
they billed CHAMPUS separately for hospital based professional mental
health services or included those services in the hospital's billing to
CHAMPUS, shall continue the practice in effect during the period July 1,
1987 to May 31, 1988 (or other data base period used for calculating the
hospital's or unit's per diem), except that any such hospital or unit
may change its prior practice (and obtain an appropriate revision in its
per diem) by providing to OCHAMPUS notice in accordance with procedures
established by the Director, OCHAMPUS, or a designee.
(vii) Leave days. CHAMPUS shall not pay for days where the patient
is absent on leave from the specialty psychiatric hospital or unit. The
hospital must identify these days when claiming reimbursement. CHAMPUS
shall not count a patients's leave of absence as a discharge in
determining whether a facility should be classified as a higher volume
hospital pursuant to paragraph (a)(2)(v) of this section.
(viii) Exemptions from the CHAMPUS mental health per diem payment
system. The following providers and procedures
[[Page 291]]
are exempt from the CHAMPUS mental health per diem payment system.
(A) Non-specialty providers. Providers of inpatient care which are
not either psychiatric hospitals or psychiatric specialty units as
described in paragraph (a)(2)(i)(A) of this section are exempt from the
CHAMPUS mental health per diem payment system. Such providers should
refer to paragraph (a)(1) of this section for provisions pertinent to
the CHAMPUS DRG-based payment system.
(B) DRG 424. Admissions for operating room procedures involving a
principal diagnosis of mental illness (services which group into DRG
424) are exempt from the per diem payment system. They will be
reimbursed pursuant to the provisions of paragraph (a)(3) of this
section.
(C) Non-mental health services. Admissions for non-mental health
procedures in specialty psychiatric hospitals and units are exempt from
the per diem payment system. They will be reimbursed pursuant to the
provisions of paragraph (a)(3) of this section.
(D) Sole community hospitals (SCHs). Prior to implementation of the
SCH reimbursement method described in paragraph (a)(7) of this section,
any hospital that has qualified for special treatment under the Medicare
prospective payment system as an SCH and has not given up that
classification is exempt.
(E) Hospitals outside the U.S. A hospital is exempt if it is not
located in one of the 50 states, the District of Columbia or Puerto
Rico.
(ix) Payment for psychiatric and substance use disorder
rehabilitation partial hospitalization services, intensive outpatient
psychiatric and substance use disorder services and opioid treatment
services--(A) Per diem payments. Psychiatric and substance use disorder
partial hospitalization services, intensive outpatient psychiatric and
substance use disorder services and opioid treatment services authorized
by Sec. 199.4(b)(9), (b)(10), and (b)(11), respectively, and provided
by institutional providers authorized under Sec. 199.6(b)(4)(xii),
(b)(4)(xviii) and (b)(4)(xix), respectively, are reimbursed on the basis
of prospectively determined, all-inclusive per diem rates pursuant to
the provisions of paragraphs (a)(2)(ix)(A)(1) through (3) of this
section, with the exception of hospital-based psychiatric and substance
use disorder and opioid services which are reimbursed in accordance with
provisions of paragraph (a)(6)(ii) of this section and freestanding
opioid treatment programs when reimbursed on a fee-for-service basis as
specified in paragraph (a)(2)(ix)(A)(3)(ii) of this section. The per
diem payment amount must be accepted as payment in full, subject to the
outpatient cost-sharing provisions under Sec. 199.4(f), for
institutional services provided, including board, routine nursing
services, group therapy, ancillary services (e.g., music, dance, and
occupational and other such therapies), psychological testing and
assessment, overhead and any other services for which the customary
practice among similar providers is included in the institutional
charges, except for those services which may be billed separately under
paragraph (a)(2)(ix)(B) of this section. Per diem payment will not be
allowed for leave days during which treatment is not provided.
(1) Partial hospitalization programs. For any full-day partial
hospitalization program (minimum of 6 hours), the maximum per diem
payment amount is 40 percent of the average inpatient per diem amount
per case established under the TRICARE mental health per diem
reimbursement system during the fiscal year for both high and low volume
psychiatric hospitals and units [as defined in paragraph (a)(2) of this
section]. Intensive outpatient services provided in a PHP setting
lasting less than 6 hours, with a minimum of 2 hours, will be paid as
provided in paragraph (a)(2)(ix)(A)(2) of this section. PHP per diem
rates will be updated annually by the Medicare update factor used for
their Inpatient Prospective Payment System.
(2) Intensive outpatient programs. For intensive outpatient programs
(IOPs) (minimum of 2 hours), the maximum per diem amount is 75 percent
of the rate for a full-day partial hospitalization program as
established in paragraph (a)(2)(ix)(A)(1) of this section. IOP per diem
rates will be updated annually by the Medicare update factor
[[Page 292]]
used for their Inpatient Prospective Payment System.
(3) Opioid treatment programs. Opioid treatment programs (OTPs)
authorized by Sec. 199.4(b)(11) and provided by providers authorized
under Sec. 199.6(b)(4)(xix) will be reimbursed based on the variability
in the dosage and frequency of the drug being administered and in
related supportive services.
(i) Weekly all-inclusive per diem rate. Methadone OTPs will be
reimbursed the lower of the billed charge or the weekly all-inclusive
per diem rate (the weekly national all-inclusive rate adjusted for
locality), including the cost of the drug and related services (i.e.,
the costs related to the initial intake/assessment, drug dispensing and
screening and integrated psychosocial and medical treatment and support
services). The bundled weekly per diem payments will be accepted as
payment in full, subject to the outpatient cost-sharing provisions under
Sec. 199.4(f). The methadone per diem rate for OTPs will be updated
annually by the Medicare update factor used for their Inpatient
Prospective Payment System.
(ii) Exceptions to per diem reimbursement. When providing other
medications which are more likely to be prescribed and administered in
an office-based opioid treatment setting, but which are still available
for treatment of substance use disorders in an outpatient treatment
program setting, OTPs will be reimbursed on a fee-for-service basis
(i.e., separate payments will be allowed for both the medication and
accompanying support services), subject to the outpatient cost-sharing
provisions under Sec. 199.4(f). OTPs' rates will be updated annually by
the Medicare update factor used for their Inpatient Prospective Payment
System.
(iii) Discretionary authority. The Director, TRICARE, will have
discretionary authority in establishing the reimbursement methodologies
for new drugs and biologicals that may become available for the
treatment of substance use disorders in OTPs. The type of reimbursement
(e.g., fee-for-service versus bundled per diem payments) will be
dependent on the variability of the dosage and frequency of the
medication being administered, as well as the support services.
(B) Services which may be billed separately. Psychotherapy sessions
and non-mental health related medical services not normally included in
the evaluation and assessment of PHP, IOP or OTPs, provided by
authorized independent professional providers who are not employed by,
or under contract with, PHP, IOP or OTPs for the purposes of providing
clinical patient care are not included in the per diem rate and may be
billed separately. This includes ambulance services when medically
necessary for emergency transport.
(3) Reimbursement for inpatient services provided by a CAH. (i) For
admissions on or after December 1, 2009, inpatient services provided by
a CAH, other than services provided in psychiatric and rehabilitation
distinct part units, shall be reimbursed at allowable cost (i.e., 101
percent of reasonable cost) under procedures, guidelines, and
instructions issued by the Director, DHA, or designee. This does not
include any costs of physicians' services or other professional services
provided to CAH inpatients. Inpatient services provided in psychiatric
distinct part units would be subject to the TRICARE mental health
payment system. Inpatient services provided in rehabilitation distinct
part units would be subject to billed charges. Upon implementation of
TRICARE's IRF PPS, inpatient services provided in rehabilitation
distinct part units would be subject to the TRICARE IRF PPS methodology
in paragraph (a)(10) of this section.
(ii) The percentage amount stated in paragraph (a)(3)(i) of this
section is subject to possible upward adjustment based on a inpatient
GTMCPA for TRICARE network hospitals deemed essential for military
readiness and support during contingency operations under paragraph
(a)(8) of this section.
(4) The allowable cost for authorized care in all hospitals not
subject to the TRICARE DRG-based payment system, the TRICARE mental
health per-diem system, the TRICARE reasonable cost method for CAHs, the
TRICARE reimbursement rules for SCHs, the TRICARE LTCH-PPS, or the
TRICARE IRF PPS shall be determined on the basis of billed charges or
set rates.
[[Page 293]]
(i) The actual charge for such service made to the general public;
or
(ii) The allowed charge applicable to the policyholders or
subscribers of the CHAMPUS fiscal intermediary for comparable services
under comparable circumstances, when extended to CHAMPUS beneficiaries
by consent or agreement; or
(iii) The allowed charge applicable to the citizens of the community
or state as established by local or state regulatory authority,
excluding title XIX of the Social Security Act or other welfare program,
when extended to CHAMPUS beneficiaries by consent or agreement.
(5) CHAMPUS discount rates. The CHAMPUS-determined allowable cost
for authorized care in any hospital may be based on discount rates
established under paragraph (l) of this section.
(6) Hospital outpatient services. This paragraph (a)(6) identifies
and clarifies payment methods for certain outpatient services, including
emergency services, provided by hospitals.
(i) Outpatient Services Not Subject to Hospital Outpatient
Prospective Payment System (OPPS). The following are payment methods for
outpatient services that are either provided in an OPPS exempt hospital
or paid outside the OPPS payment methodology under existing fee
schedules or other prospectively determined rates in a hospital subject
to OPPS reimbursement.
(A) Laboratory services. TRICARE payments for hospital outpatient
laboratory services including clinical laboratory services are based on
the allowable charge method under paragraph (j)(1) of the section. In
the case of laboratory services for which the CMAC rates are established
under that paragraph, a payment rate for the technical component of the
laboratory services is provided. Hospital charges for an outpatient
laboratory service are reimbursed using the CMAC technical component
rate.
(B) Rehabilitation therapy services. Rehabilitation therapy services
provided on an outpatient basis by hospitals are paid on the same basis
as rehabilitation therapy services covered by the allowable charge
method under paragraph (j)(1) of this section.
(C) Venipuncture. Routine venipuncture services provided on an
outpatient basis by hospitals are paid on the same basis as such
services covered by the allowable charge method under paragraph (j)(1)
of this section. Routine venipuncture services provided on an outpatient
basis by institutional providers other than hospitals are also paid on
this basis.
(D) Radiology services. TRICARE payments for hospital outpatient
radiology services are based on the allowable charge method under
paragraph (j)(1) of the section. In the case of radiology services for
which the CMAC rates are established under that paragraph, a payment
rate for the technical component of the radiology services is provided.
Hospital charges for an outpatient radiology service are reimbursed
using the CMAC technical component rate.
(E) Diagnostic services. TRICARE payments for hospital outpatient
diagnostic services are based on the allowable charge method under
paragraph (j)(1) of the section. In the case of diagnostic services for
which the CMAC rates are established under that paragraph, a payment
rate for the technical component of the diagnostic services is provided.
Hospital charges for an outpatient diagnostic service are reimbursed
using the CMAC technical component rate.
(F) Ambulance services. Ambulance services provided on an outpatient
basis by hospitals are paid on the same basis as ambulance services
covered by the allowable charge method under paragraph (j)(1) of this
section.
(G) Durable medical equipment (DME) and supplies. Durable medical
equipment and supplies provided on an outpatient basis by hospitals are
paid on the same basis as durable medical equipment and supplies covered
by the allowable charge method under paragraph (j)(1) of this section.
(H) Oxygen and related supplies. Oxygen and related supplies
provided on an outpatient basis by hospitals are paid on the same basis
as oxygen and related supplies covered by the allowable charge method
under paragraph (j)(1) of this section.
(I) Drugs administered other than by oral method. Drugs administered
other
[[Page 294]]
than by oral method provided on an outpatient basis by hospitals are
paid on the same basis as drugs administered other than by oral method
covered by the allowable charge method under paragraph (j)(1) of this
section.
(J) Professional provider services. TRICARE payments for hospital
outpatient professional provider services rendered in an emergency room,
clinic, or hospital outpatient department, etc., are based on the
allowable charge method under paragraph (j)(1) of the section. In the
case of professional services for which the CMAC rates are established
under that paragraph, a payment rate for the professional component of
the services is provided. Hospital charges for an outpatient
professional service are reimbursed using the CMAC professional
component rate. If the professional outpatient hospital services are
billed by a professional provider group, not by the hospital, no payment
shall be made to the hospital for these services.
(K) Facility charges. TRICARE payments for hospital outpatient
facility charges that would include the overhead costs of providing the
outpatient service would be paid as billed. For the definition of
facility charge, see Sec. 199.2(b).
(L) Ambulatory surgery services. Hospital outpatient ambulatory
surgery services shall be paid in accordance with Sec. 199.14(d).
(ii) Outpatient services subject to OPPS--(A) General. Outpatient
services provided in hospitals subject to Medicare OPPS as specified in
42 CFR 413.65 and 42 CFR 419.20 will be paid in accordance with the
provisions outlined in sections 1833t of the Social Security Act and its
implementing Medicare regulation (42 CFR part 419) subject to exceptions
as authorized by this paragraph (a)(6)(ii).
(B) Under the above governing provisions, TRICARE will recognize to
the extent practicable, in accordance with 10 U.S.C. 1089(j)(2),
Medicare's OPPS reimbursement methodology to include specific coding
requirements, ambulatory payment classifications (APCs), nationally
established APC amounts and associated adjustments (e.g., discounting
across geographical regions and outlier calculations).
(C) While TRICARE intends to remain as true as possible to
Medicare's basic OPPS methodology, there will be some deviations
required to accommodate TRICARE's unique benefit structure and
beneficiary population as authorized under the provisions of 10 U.S.C.
1079(j)(2).
(D) TRICARE is also authorized to deviate from Medicare's basic OPPS
methodology to establish special reimbursement methods, amounts, and
procedures to encourage use of high-value products and discourage use of
low-value products with respect to pharmaceutical agents provided as
part of medical services from authorized providers. Therefore, drugs
administered other than oral method provided on an outpatient basis by
hospitals are paid on the same basis as drugs administered other than
oral method covered by the allowable charge method under paragraph
(j)(1) of this section.
(E) Temporary transitional payment adjustments (TTPAs). Temporary
transitional payment adjustments will be in place for all hospitals,
both network and non-network, in order to buffer the initial decline in
payments upon implementation of TRICARE's OPPS.
(1) For network hospitals. The temporary transitional payment
adjustments will cover a four-year period. The four-year transition will
set higher payment percentages for the ten Ambulatory Payment
Classification (APC) codes 604-609 and 613-616, with reductions in each
of the transition years. For non-network hospitals, the adjustments will
cover a three year period, with reductions in each of the transition
years. For network hospitals, under the TTPAs, the APC payment level for
the five clinic visit APCs would be set at 175 percent of the Medicare
APC level, while the five ER visit APCs would be increased by 200
percent in the first year of OPPS implementation. In the second year,
the APC payment levels would be set at 150 percent of the Medicare APC
level for clinic visits and 175 percent for ER APCs. In the third year,
the APC visit amounts would be set at 130 percent of the Medicare APC
level for clinic visits and 150 percent for ER APCs. In the fourth year,
the APC visit amounts would be set at 115 percent of the Medicare APC
[[Page 295]]
level for clinic visits and 130 percent for ER APCs. In the fifth year,
the TRICARE and Medicare payment levels for the 10 APC visit codes would
be identical.
(2) For non-network hospitals. Under the TTPAs, the APC payment
level for the five clinic and ER visit APCs would be set at 140 percent
of the Medicare APC level in the first year of OPPS implementation. In
the second year, the APC payment levels would be set at 125 percent of
the Medicare APC level for clinic and ER visits. In the third year, the
APC visit amounts would be set at 110 percent of the Medicare APC level
for clinic and ER visits. In the fourth year, the TRICARE and Medicare
payment levels for the 10 APC visit codes would be identical.
(3) An additional temporary military contingency payment adjustment
(TMCPA) will also be available at the discretion of the Director,
Defense Health Agency (DHA), or a designee, at any time after
implementation to adopt, modify and/or extend temporary adjustments to
OPPS payments for TRICARE network hospitals deemed essential for
military readiness and deployment in time of contingency operations. Any
TMCPAs to OPPS payments shall be made only on the basis of a
determination that it is impracticable to support military readiness or
contingency operations by making OPPS payments in accordance with the
same reimbursement rules implemented by Medicare. The criteria for
adopting, modifying, and/or extending deviations and/or adjustments to
OPPS payments shall be issued through TRICARE policies, instructions,
procedures and guidelines as deemed appropriate by the Director, DHA, or
a designee. TMCPAs may also be extended to non-network hospitals on a
case-by-case basis for specific procedures where it is determined that
the procedures cannot be obtained timely enough from a network hospital.
For such case-by-case extensions, ``Temporary'' might be less than three
years at the discretion of the DHA Director, or designee.
(iii) Outpatient Services Subject to CAH Reasonable Cost Method. For
services on or after December 1, 2009, outpatient services provided by a
CAH, shall be reimbursed at 101 percent of reasonable cost. This does
not include any costs of physician services or other professional
services provided to CAH outpatients.
(iv) CAH Ambulance Services. Effective for services provided on or
after December 1, 2009, payment for ambulance services furnished by a
CAH or an entity that is owned and operated by a CAH is the reasonable
costs of the CAH or the entity in furnishing those services, but only if
the CAH or the entity is the only provider or supplier of ambulance
services located within a 35-mile drive of the CAH or the entity as
specified under 42 CFR part 413.70(b)(5)(ii).
(7) Reimbursement for inpatient services provided by an SCH. (i) In
accordance with 10 U.S.C. 1079(j)(2), TRICARE payment methods for
institutional care shall be determined, to the extent practicable, in
accordance with the same reimbursement rules as those that apply to
payments to providers of services of the same type under Medicare.
TRICARE's SCH reimbursements approximate Medicare's for SCHs. Inpatient
services provided by an SCH, other than services provided in psychiatric
and rehabilitation distinct part units, shall be reimbursed through a
two-step process.
(ii) The first step referred to in paragraph (a)(7)(i) of this
section will be to calculate the TRICARE allowable cost by multiplying
the applicable TRICARE percentage by the billed charge amount on each
institutional inpatient claim. The applicable TRICARE percentage is the
greater of: the SCH's most recently available cost-to-charge ratio (CCR)
from the Centers for Medicare and Medicaid Services' (CMS') inpatient
Provider Specific File (after the ratio has been converted to a
percentage), or the TRICARE allowed-to-billed ratio, defined as the
ratio of the TRICARE allowed amounts (including discounts) to the amount
of billed charges for TRICARE inpatient admissions at the SCH in FY 2012
(after it has been converted to a percentage). The TRICARE allowed-to-
billed ratio in FY 2012 shall be reduced as follows (after the ratio has
been converted to a percentage):
(A) In the first year of implementation, 10 percentage points for
network
[[Page 296]]
SCHs and 15 percentage points for non-network SCHs.
(B) In the second year of implementation, 20 percentage points for
network SCHs and 30 percentage points for non-network SCHs.
(C) In the third year of implementation, 30 percentage points for
network SCHs and 45 percentage points for non-network SCHs.
(D) In the fourth year of implementation, 40 percentage points for
network SCHs and 60 percentage points for non-network SCHs.
(E) In the fifth year of implementation, 50 percentage points for
network SCHs and 75 percentage points for non-network SCHs.
(F) In the sixth year of implementation, 60 percentage points for
network SCHs and 90 percentage points for non-network SCHs.
(G) In the seventh year of implementation, 70 percentage points for
network SCHs and 100 percentage points for non-network SCHs.
(H) In the eighth year of implementation, 80 percentage points for
network SCHs and 100 percentage points for non-network SCHs.
(I) In the ninth year of implementation, 90 percentage points for
network SCHs and 100 percentage points for non-network SCHs.
(J) In the tenth year of implementation, 100 percentage points for
network SCHs and 100 percentage points for non-network SCHs.
(iii) The second step referred to in paragraph (a)(7)(i) of this
section is a year-end adjustment. The year-end adjustment will compare
the aggregate allowable costs over a 12-month period under paragraph
(a)(7)(ii) of this section to the aggregate amount that would have been
allowed for the same care using the TRICARE DRG-method (under paragraph
(a)(1) of this section). In the event that the DRG method amount is the
greater, the year-end adjustment will be the amount by which it exceeds
the aggregate allowable costs. In addition, the year-end adjustment also
may incorporate a possible upward adjustment for inpatient services
based on a GTMCPA for TRICARE network hospitals under paragraph (a)(8)
of this section.
(iv) At the end of an SCH's transition period, when the SCH reaches
its Medicare CCR, a special allowable cost shall be applicable for
discharges that group to inpatient nursery and labor/delivery DRGs. For
these discharges, instead of using the percentage of the SCH's Medicare
cost-to-charge ratio (as described in paragraph (a)(7)(ii) of this
section), the percentage will be 130 percent of the Medicare CCR.
(v) The SCH reimbursement provisions of paragraphs (a)(7)(i) through
(iv) of this section do not apply to any costs of physician services or
other professional services provided to SCH inpatients (which are
subject to individual provider payment provisions of this section),
inpatient services provided in psychiatric distinct part units (which
are subject to the CHAMPUS mental health per-diem payment system), or
inpatient services provided in rehabilitation distinct part units (which
are reimbursed on the basis of billed charges or set rates).
(vi) The SCH payment system under this paragraph (a)(7) applies to
hospitals classified by CMS as Essential Access Community Hospitals
(EACHs).
(vii) The SCH payment system under this paragraph (a)(7) does not
apply to hospitals in States that are paid by Medicare and TRICARE under
a cost containment waiver.
(8) General temporary military contingency payment adjustment for
SCHs and CAHs. (i) Payments under paragraph (a) of this section for
inpatient services provided by SCHs and CAHs may be supplemented by a
GTMCPA. This is a year-end discretionary, temporary adjustment that the
TMA Director may approve based on all the following criteria:
(A) The hospital serves a disproportionate share of ADSMs and ADDs;
(B) The hospital is a TRICARE network hospital;
(C) The hospital's actual costs for inpatient services exceed
TRICARE payments or other extraordinary economic circumstance exists;
and,
(D) Without the GTMCPA, DoD's ability to meet military contingency
mission requirements will be significantly compromised.
(ii) Policy and procedural instructions implementing the GTMCPA will
[[Page 297]]
be issued as deemed appropriate by the Director, TMA, or a designee. As
with other discretionary authority under this Part, a decision to allow
or deny a GTMCPA to a hospital is not subject to the appeal and hearing
procedures of Sec. 199.10.
(9) Reimbursement for inpatient services provided by a Long Term
Care Hospital (LTCH). (i) In accordance with 10 U.S.C. 1079(i)(2),
TRICARE payment methods for institutional care shall be determined, to
the extent practicable, in accordance with the same reimbursement rules
as those that apply to payments to providers of services of the same
type under Medicare. The TRICARE-LTC-DRG reimbursement methodology shall
be in accordance with Medicare's Medicare Severity Long Term Care
Diagnosis Related Groups (MS-LTC-DRGs) as found in regulation at 42 CFR
part 412, subpart O. Inpatient services provided in hospitals subject to
the Medicare LTCH Prospective Payment System (PPS) and classified as
LTCHs and also as specified in 42 CFR parts 412 and 413 will be paid in
accordance with the provisions outlined in sections 1886(d)(1)(B)(IV)
and 1886(m)(6) of the Social Security Act and its implementing Medicare
regulation (42 CFR parts 412, 413, and 170) to the extent practicable.
Under the above governing provisions, TRICARE will recognize, to the
extent practicable, in accordance with 10 U.S.C. 1079(i)(2), Medicare's
LTCH PPS methodology to include the relative weights, inpatient
operating and capital costs of furnishing covered services (including
routine and ancillary services), interrupted stay policy, short-stay and
high cost outlier payments, site-neutral payments, wage adjustments for
variations in labor-related costs across geographical regions, cost-of-
living adjustments, payment adjustments associated with the quality
reporting program, method of payment for preadmission services, and
updates to the system. TRICARE will not be adopting Medicare's 25
percent threshold payment adjustment.
(ii) Implementation of the TRICARE LTCH PPS will include a gradual
transition to full implementation of the Medicare LTCH PPS rates as
follows:
(A) For the first 12 months following implementation, the TRICARE
LTCH PPS allowable cost will be 135 percent of Medicare LTCH PPS
amounts.
(B) For the second 12 months of implementation, TRICARE LTCH PPS
allowable cost will be 115 percent of the Medicare LTCH PPS amounts.
(C) For the third 12 months of implementation, and subsequent years,
TRICARE LTCH PPS allowable cost will be 100 percent of the Medicare LTCH
PPS amounts.
(iii) Exemption. The TRICARE LTCH PPS methodology under this
paragraph does not apply to hospitals in States that are reimbursed by
Medicare and TRICARE under a waiver that exempts them from Medicare's
inpatient prospective payment system or the TRICARE DRG-based payment
system, to Children's Hospitals, or to Neoplastic Disease Care
Hospitals, respectively.
(10) Reimbursement for inpatient services provided by Inpatient
Rehabilitation Facilities (IRF). (i) In accordance with 10 U.S.C.
1079(i)(2), TRICARE payment methods for institutional care shall be
determined to the extent practicable, in accordance with the same
reimbursement rules as those that apply to payments to providers of
services of the same type under Medicare. The TRICARE IRF PPS
reimbursement methodology shall be in accordance with Medicare's IRF PPS
as found in 42 CFR part 412. Inpatient services provided in IRFs subject
to the Medicare IRF prospective payment system (PPS) and classified as
IRFs and also as specified in 42 CFR 412.604 will be paid in accordance
with the provisions outlined in section 1886(j) of the Social Security
Act and its implementing Medicare regulation found at 42 CFR part 412,
subpart P to the extent practicable. Under the above governing
provisions, TRICARE will recognize, to the extent practicable, in
accordance with 10 U.S.C. 1079(i)(2), Medicare's IRF PPS methodology to
include the relative weights, payment rates covering all operating and
capitals costs of furnishing rehabilitative services adjusted for wage
variations in labor-related costs across geographical regions,
adjustments for the 60 percent compliance threshold, teaching
adjustment, rural
[[Page 298]]
adjustment, high-cost outlier payments, low income payment adjustment,
payment adjustments associated with the quality reporting program, and
updates to the system.
(ii) Implementation of the TRICARE IRF PPS will include a gradual
transition to full implementation of the Medicare IRF PPS rates as
follows:
(A) For the first 12 months of implementation, the TRICARE IRF PPS
allowable cost will be 135 percent of Medicare IRF PPS amounts.
(B) For the second 12 months of implementation, the TRICARE IRF PPS
allowable cost will be 115 percent of the Medicare IRF PPS amounts.
(C) For the third 12 months of implementation, and subsequent years,
the TRICARE IRF PPS allowable cost will be 100 percent of the Medicare
IRF PPS amounts.
(iii) The IRF PPS allowable cost in paragraph (a)(10)(ii) of this
section may be supplemented by an inpatient general temporary military
contingency payment adjustment (GTMCPA) for TRICARE authorized IRFs.
(A) This is a year-end discretionary, temporary adjustment that the
Director, DHA (or designee) may approve based on the following criteria:
(1) The IRF serves a disproportionate share of ADSMs and ADDs;
(2) The IRF is a TRICARE network hospital;
(3) The IRF's actual costs for inpatient services exceed TRICARE
payments or other extraordinary economic circumstance exists; and
(4) Without the GTMCPA, DoD's ability to meet military contingency
mission requirements will be significantly compromised.
(B) Policy and procedural instructions implementing the GTMCPA will
be issued as deemed appropriate by the Director, DHA (or designee). As
with other discretionary authority under this part, a decision to allow
or deny a GTMCPA to an IRF is not subject to the appeal and hearing
procedures of Sec. 199.10.
(iv) Exemption. The TRICARE IRF PPS methodology under this paragraph
does not apply to hospitals in States that are reimbursed by Medicare
and TRICARE under a waiver that exempts them from Medicare's inpatient
prospective payment system or the TRICARE DRG-based payment system, to
Children's hospitals, or to VA hospitals, respectively.
(b) Skilled nursing facilities (SNFs)--(1) Use of Medicare
prospective payment system and rates. TRICARE payments to SNFs are
determined using the same methods and rates used under the Medicare
prospective payment system for SNFs under 42 CFR part 413, subpart J,
except for children under age ten. SNFs receive a per diem payment of a
predetermined Federal payment rate appropriate for the case based on
patient classification (using the RUG classification system), urban or
rural location of the facility, and area wage index.
(2) Payment in full. The SNF payment rates represent payment in full
(subject to any applicable beneficiary cost shares) for all costs
(routine, ancillary, and capital-related) associated with furnishing
inpatient SNF services to TRICARE beneficiaries other than costs
associated with operating approved educational activities.
(3) Education costs. Costs for approved educational activities shall
be subject to separate payment under procedures established by the
Director, TRICARE Management Activity. Such procedures shall be similar
to procedures for payments for direct medical education costs of
hospitals under paragraph (a)(1)(iii)(G)(2) of this section.
(4) Resident assessment data. SNFs are required to submit the same
resident assessment data as is required under the Medicare program. (The
residential assessment is addressed in the Medicare regulations at 42
CFR 483.20.) SNFs must submit assessments according to an assessment
schedule. This schedule must include performance of patient assessments
on the 5th, 14th, and 30th days of SNF care and at each successive 30
day interval of SNF admissions that are longer than 30 days. It must
also include such other assessments that are necessary to account for
changes in patient care needs. TRICARE pays a default rate for the days
of a patient's care for which the SNF has failed to comply with the
assessment schedule.
(c) Reimbursement for Other Than Hospitals and SNFs. The Director,
[[Page 299]]
OCHAMPUS, or a designee, shall establish such other methods of
determining allowable cost or charge reimbursement for those
institutions, other than hospitals and SNFs, as may be required.
(d) Payment of institutional facility costs for ambulatory surgery--
(1) In general. CHAMPUS pays institutional facility costs for ambulatory
surgery on the basis of prospectively determined amounts, as provided in
this paragraph, with the exception of ambulatory surgery procedures
performed in hospital outpatient departments or in CAHs, which are to be
reimbursed in accordance with the provisions of paragraph (a)(6)(ii) or
(a)(6)(iii) respectively, of this section. This payment method is
similar to that used by the Medicare program for ambulatory surgery.
This paragraph applies to payment for freestanding ambulatory surgical
centers. It does not apply to professional services. A list of
ambulatory surgery procedures subject to the payment method set forth in
the paragraph shall be published periodically by the Director, TRICARE
Management Activity (TMA). Payment to freestanding ambulatory surgery
centers is limited to these procedures.
(2) Payment in full. The payment provided for under this paragraph
is the payment in full for services covered by this paragraph.
Facilities may not charge beneficiaries for amounts, if any, in excess
of the payment amounts determined pursuant to this paragraph.
(3) Calculation of standard payment rates. Standard payment rates
are calculated for groups of procedures under the following steps:
(i) Step 1: Calculate a median standardized cost for each procedure.
For each ambulatory surgery procedure, a median standardized cost will
be calculated on the basis of all ambulatory surgery charges nationally
under CHAMPUS during a recent one-year base period. The steps in this
calculation include standardizing for local labor costs by reference to
the same wage index and labor/non-labor-related cost ratio as applies to
the facility under Medicare, applying a cost-to-charge ratio,
calculating a median cost for each procedure, and updating to the year
for which the payment rates will be in effect by the Consumer Price
Index-Urban. In applying a cost-to-charge ratio, the Medicare cost-to-
charge ratio for freestanding ambulatory surgery centers (FASCs) will be
used for all charges from FASCs, and the Medicare cost-to-charge ratio
for hospital outpatient settings will be used for all charges from
hospitals.
(ii) Step 2: Grouping procedures. Procedures will then be placed
into one of ten groups by their median per procedure cost, starting with
$0 to $299 for group 1 and ending with $1000 to $1299 for group 9 and
$1300 and above for group 10, with groups 2 through 8 set on the basis
of $100 fixed intervals.
(iii) Step 3: Adjustments to groups. The Director, OCHAMPUS may make
adjustments to the groupings resulting from step 2 to account for any
ambulatory surgery procedures for which there were insufficient data to
allow a grouping or to correct for any anomalies resulting from data or
statistical factors or other special factors that fairness requires be
specially recognized. In making any such adjustments, the Director may
take into consideration the placing of particular procedures in the
ambulatory surgery groups under Medicare.
(iv) Step 4: standard payment amount per group. The standard payment
amount per group will be the volume weighted median per procedure cost
for the procedures in that group. For cases in which the standard
payment amount per group exceeds the CHAMPUS-determined inpatient
allowable amount, the Director, TSO or his designee, may make
adjustments.
(v) Step 5: Actual payments. Actual payment for a procedure will be
the standard payment amount for the group which covers that procedure,
adjusted for local labor costs by reference to the same labor/non-labor-
related cost ratio and hospital wage index as used for ambulatory
surgery centers by Medicare.
(4) Multiple procedures. In cases in which authorized multiple
procedures are performed during the same operative session, payment
shall be based on 100 percent of the payment amount for the procedure
with the highest ambulatory surgery payment amount, plus, for each other
procedure performed during
[[Page 300]]
the session, 50 percent of its payment amount.
(5) Annual updates. The standard payment amounts will be updated
annually by the same update factor as is used in the Medicare annual
updates for ambulatory surgery center payments.
(6) Recalculation of rates. The Director, OCHAMPUS may periodically
recalculate standard payment rates for ambulatory surgery using the
steps set forth in paragraph (d)(3) of this section.
(e) Reimbursement of Birthing Centers. (1) Reimbursement for
maternity care and childbirth services furnished by an authorized
birthing center shall be limited to the lower of the CHAMPUS established
all-inclusive rate or the center's most-favored all-inclusive rate.
(2) The all-inclusive rate shall include the following to the extent
that they are usually associated with a normal pregnancy and childbirth:
Laboratory studies, prenatal management, labor management, delivery,
post-partum management, newborn care, birth assistant, certified nurse-
midwife professional services, physician professional services, and the
use of the facility.
(3) The CHAMPUS established all-inclusive rate is equal to the sum
of the CHAMPUS area prevailing professional charge for total obstetrical
care for a normal pregnancy and delivery and the sum of the average
CHAMPUS allowable institutional charges for supplies, laboratory, and
delivery room for a hospital inpatient normal delivery. The CHAMPUS
established all-inclusive rate areas will coincide with those
established for prevailing professional charges and will be updated
concurrently with the CHAMPUS area prevailing professional charge
database.
(4) Extraordinary maternity care services, when otherwise
authorized, may be reimbursed at the lesser of the billed charge or the
CHAMPUS allowable charge.
(5) Reimbursement for an incomplete course of care will be limited
to claims for professional services and tests where the beneficiary has
been screened but rejected for admission into the birthing center
program, or where the woman has been admitted but is discharged from the
birthing center program prior to delivery, adjudicated as individual
professional services and items.
(6) The beneficiary's share of the total reimbursement to a birthing
center is limited to the cost-share amount plus the amount billed for
non-covered services and supplies.
(f) Reimbursement of Residential Treatment Centers. The CHAMPUS rate
is the per diem rate that CHAMPUS will authorize for all mental health
services rendered to a patient and the patient's family as part of the
total treatment plan submitted by a CHAMPUS-approved RTC, and approved
by the Director, OCHAMPUS, or designee.
(1) The all-inclusive per diem rate for RTCs operating or
participating in CHAMPUS during the base period of July 1, 1987, through
June 30, 1988, will be the lowest of the following conditions:
(i) The CHAMPUS rate paid to the RTC for all-inclusive services as
of June 30, 1988, adjusted by the Consumer Price Index--Urban (CPI-U)
for medical care as determined applicable by the Director, OCHAMPUS, or
designee; or
(ii) The per diem rate accepted by the RTC from any other agency or
organization (public or private) that is high enough to cover one-third
of the total patient days during the 12-month period ending June 30,
1988, adjusted by the CPI-U; or
Note: The per diem rate accepted by the RTC from any other agency or
organization includes the rates accepted from entities such as
Government contractors in CHAMPUS demonstration projects.
(iii) An OCHAMPUS determined capped per diem amount not to exceed
the 80th percentile of all established CHAMPUS RTC rates nationally,
weighted by total CHAMPUS days provided at each rate during the base
period discussed in paragraph (f)(1) of this section.
(2) The all-inclusive per diem rates for RTCs which began operation
after June 30, 1988, or began operation before July 1, 1988, but had
less than 6 months of operation by June 30, 1988, will be calculated
based on the lower of the per diem rate accepted by the RTC that is high
enough to cover one-third of the total patient days during its first 6
to 12 consecutive months of operation, or
[[Page 301]]
the CHAMPUS determined capped amount. Rates for RTCs beginning operation
prior to July 1, 1988, will be adjusted by an appropriate CPI-U
inflation factor for the period ending June 30, 1988. A period of less
than 12 months will be used only when the RTC has been in operation for
less than 12 months. Once a full 12 months is available, the rate will
be recalculated.
(3) For care on or after April 6, 1995, the per diem amount may not
exceed a cap of the 70th percentile of all established Federal fiscal
year 1994 RTC rates nationally, weighted by total CHAMPUS days provided
at each rate during the first half of Federal fiscal year 1994, and
updated to FY95. For Federal fiscal years 1996 and 1997, the cap shall
remain unchanged. For Federal fiscal years after fiscal year 1997, the
cap shall be adjusted by the Medicare update factor for hospitals and
units exempt from the Medicare prospective payment system.
(4) All educational costs, whether they include routine education or
special education costs, are excluded from reimbursement except when
appropriate education is not available from, or not payable by, a
cognizant public entity.
(i) The RTC shall exclude educational costs from its daily costs.
(ii) The RTC's accounting system must be adequate to assure CHAMPUS
is not billed for educational costs.
(iii) The RTC may request payment of educational costs on an
individual case basis from the Director, OCHAMPUS, or designee, when
appropriate education is not available from, or not payable by, a
cognizant public entity. To qualify for reimbursement of educational
costs in individual cases, the RTC shall comply with the application
procedures established by the Director, OCHAMPUS, or designee,
including, but not limited to, the following:
(A) As part of its admission procedures, the RTC must counsel and
assist the beneficiary and the beneficiary's family in the necessary
procedures for assuring their rights to a free and appropriate public
education.
(B) The RTC must document any reasons why an individual beneficiary
cannot attend public educational facilities and, in such a case, why
alternative educational arrangements have not been provided by the
cognizant public entity.
(C) If reimbursement of educational costs is approved for an
individual beneficiary by the Director, OCHAMPUS, or designee, such
educational costs shall be shown separately from the RTC's daily costs
on the CHAMPUS claim. The amount paid shall not exceed the RTC's most-
favorable rate to any other patient, agency, or organization for special
or general educational services whichever is appropriate.
(D) If the RTC fails to request CHAMPUS approval of the educational
costs on an individual case, the RTC agrees not to bill the beneficiary
or the beneficiary's family for any amounts disallowed by CHAMPUS.
Requests for payment of educational costs must be referred to the
Director, OCHAMPUS, or designee for review and a determination of the
applicability of CHAMPUS benefits.
(5) Subject to the applicable RTC cap, adjustments to the RTC rates
may be made annually.
(i) For Federal fiscal years through 1995, the adjustment shall be
based on the Consumer Price Index-Urban (CPI-U) for medical care as
determined applicable by the Director, OCHAMPUS.
(ii) For purposes of rates for Federal fiscal years 1996 and 1997:
(A) For any RTC whose 1995 rate was at or above the thirtieth
percentile of all established Federal fiscal year 1995 RTC rates
normally, weighted by total CHAMPUS days provided at each rate during
the first half of Federal fiscal year 1994, that rate shall remain in
effect, with no additional update, throughout fiscal years 1996 and
1997; and
(B) For any RTC whose 1995 rate was below the 30th percentile level
determined under paragraph (f)(5)(ii)(A) of this section, the rate shall
be adjusted by the lesser of: the CPI-U for medical care, or the amount
that brings the rate up to that 30th percentile level.
(iii) For subsequent Federal fiscal years after fiscal year 1997,
RTC rates shall be updated by the Medicare update factor for hospitals
and units exempt from the Medicare prospective payment system.
[[Page 302]]
(6) For care provided on or after July 1, 1995, CHAMPUS will not pay
for days in which the patient is absent on leave from the RTC. The RTC
must identify these days when claiming reimbursement.
(g) Reimbursement of hospice programs. Hospice care will be
reimbursed at one of four predetermined national CHAMPUS rates based on
the type and intensity of services furnished to the beneficiary. A
single rate is applicable for each day of care except for continuous
home care where payment is based on the number of hours of care
furnished during a 24-hour period. These rates will be adjusted for
regional differences in wages using wage indices for hospice care.
(1) National hospice rates. CHAMPUS will use the national hospice
rates for reimbursement of each of the following levels of care provided
by or under arrangement with a CHAMPUS approved hospice program:
(i) Routine home care. The hospice will be paid the routine home
care rate for each day the patient is at home, under the care of the
hospice, and not receiving continuous home care. This rate is paid
without regard to the volume or intensity of routine home care services
provided on any given day.
(ii) Continuous home care. The hospice will be paid the continuous
home care rate when continuous home care is provided. The continuous
home care rate is divided by 24 hours in order to arrive at an hourly
rate.
(A) A minimum of 8 hours of care must be provided within a 24-hour
day starting and ending at midnight.
(B) More than half of the total actual hours being billed for each
24-hour period must be provided by either a registered or licensed
practical nurse.
(C) Homemaker and home health aide services may be provided to
supplement the nursing care to enable the beneficiary to remain at home.
(D) For every hour or part of an hour of continuous care furnished,
the hourly rate will be reimbursed to the hospice up to 24 hours a day.
(iii) Inpatient respite care. The hospice will be paid at the
inpatient respite care rate for each day on which the beneficiary is in
an approved inpatient facility and is receiving respite care.
(A) Payment for respite care may be made for a maximum of 5 days at
a time, including the date of admission but not counting the date of
discharge. The necessity and frequency of respite care will be
determined by the hospice interdisciplinary group with input from the
patient's attending physician and the hospice's medical director.
(B) Payment for the sixth and any subsequent days is to be made at
the routine home care rate.
(iv) General inpatient care. Payment at the inpatient rate will be
made when general inpatient care is provided for pain control or acute
or chronic symptom management which cannot be managed in other settings.
None of the other fixed payment rates (i.e., routine home care) will be
applicable for a day on which the patient receives general inpatient
care except on the date of discharge.
(v) Date of discharge. For the day of discharge from an inpatient
unit, the appropriate home care rate is to be paid unless the patient
dies as an inpatient. When the patient is discharged deceased, the
inpatient rate (general or respite) is to be paid for the discharge
date.
(2) Use of Medicare rates. CHAMPUS will use the most current
Medicare rates to reimburse hospice programs for services provided to
CHAMPUS beneficiaries. It is CHAMPUS' intent to adopt changes in the
Medicare reimbursement methodology as they occur; e.g., Medicare's
adoption of an updated, more accurate wage index.
(3) Physician reimbursement. Payment is dependent on the physician's
relationship with both the beneficiary and the hospice program.
(i) Physicians employed by, or contracted with, the hospice. (A)
Administrative and supervisory activities (i.e., establishment, review
and updating of plans of care, supervising care and services, and
establishing governing policies) are included in the adjusted national
payment rate.
(B) Direct patient care services are paid in addition to the
adjusted national payment rate.
(1) Physician services will be reimbursed an amount equivalent to
100 percent of the CHAMPUS' allowable
[[Page 303]]
charge; i.e., there will be no cost-sharing and/or deductibles for
hospice physician services.
(2) Physician payments will be counted toward the hospice cap
limitation.
(ii) Independent attending physician. Patient care services rendered
by an independent attending physician (a physician who is not considered
employed by or under contract with the hospice) are not part of the
hospice benefit.
(A) Attending physician may bill in his/her own right.
(B) Services will be subject to the appropriate allowable charge
methodology.
(C) Reimbursement is not counted toward the hospice cap limitation.
(D) Services provided by an independent attending physician must be
coordinated with any direct care services provided by hospice
physicians.
(E) The hospice must notify the CHAMPUS contractor of the name of
the physician whenever the attending physician is not a hospice
employee.
(iii) Voluntary physician services. No payment will be allowed for
physician services furnished voluntarily (both physicians employed by,
and under contract with, the hospice and independent attending
physicians). Physicians may not discriminate against CHAMPUS
beneficiaries; e.g., designate all services rendered to non-CHAMPUS
patients as volunteer and at the same time bill for CHAMPUS patients.
(4) Unrelated medical treatment. Any covered CHAMPUS services not
related to the treatment of the terminal condition for which hospice
care was elected will be paid in accordance with standard reimbursement
methodologies; i.e., payment for these services will be subject to
standard deductible and cost-sharing provisions under the CHAMPUS. A
determination must be made whether or not services provided are related
to the individual's terminal illness. Many illnesses may occur when an
individual is terminally ill which are brought on by the underlying
condition of the ill patient. For example, it is not unusual for a
terminally ill patient to develop pneumonia or some other illness as a
result of his or her weakened condition. Similarly, the setting of bones
after fractures occur in a bone cancer patient would be treatment of a
related condition. Thus, if the treatment or control of an upper
respiratory tract infection is due to the weakened state of the terminal
patient, it will be considered a related condition, and as such, will be
included in the hospice daily rates.
(5) Cap amount. Each CHAMPUS-approved hospice program will be
subject to a cap on aggregate CHAMPUS payments from November 1 through
October 31 of each year, hereafter known as ``the cap period.''
(i) The cap amount will be adjusted annually by the percent of
increase or decrease in the medical expenditure category of the Consumer
Price Index for all urban consumers (CPI-U).
(ii) The aggregate cap amount (i.e., the statutory cap amount times
the number of CHAMPUS beneficiaries electing hospice care during the cap
period) will be compared with total actual CHAMPUS payments made during
the same cap period.
(iii) Payments in excess of the cap amount must be refunded by the
hospice program. The adjusted cap amount will be obtained from the
Health Care Financing Administration (HCFA) prior to the end of each cap
period.
(iv) Calculation of the cap amount for a hospice which has not
participated in the program for an entire cap year (November 1 through
October 31) will be based on a period of at least 12 months but no more
than 23 months. For example, the first cap period for a hospice entering
the program on October 1, 1994, would run from October 1, 1994 through
October 31, 1995. Similarly, the first cap period for hospice providers
entering the program after November 1, 1993 but before November 1, 1994
would end October 31, 1995.
(6) Inpatient limitation. During the 12-month period beginning
November 1 of each year and ending October 31, the aggregate number of
inpatient days, both for general inpatient care and respite care, may
not exceed 20 percent of the aggregate total number of days of hospice
care provided to all CHAMPUS beneficiaries during the same period.
(i) If the number of days of inpatient care furnished to CHAMPUS
beneficiaries exceeds 20 percent of the total
[[Page 304]]
days of hospice care to CHAMPUS beneficiaries, the total payment for
inpatient care is determined follows:
(A) Calculate the ratio of the maximum number of allowable inpatient
days of the actual number of inpatient care days furnished by the
hospice to Medicare patients.
(B) Multiply this ratio by the total reimbursement for inpatient
care made by the CHAMPUS contractor.
(C) Multiply the number of actual inpatient days in excess of the
limitation by the routine home care rate.
(D) Add the amounts calculated in paragraphs (g)(6)(i) (B) and (C)
of this section.
(ii) Compare the total payment for inpatient care calculated in
paragraph (g)(6)(i)(D) of this section to actual payments made to the
hospice for inpatient care during the cap period.
(iii) Payments in excess of the inpatient limitation must be
refunded by the hospice program.
(7) Hospice reporting responsibilities. The hospice is responsible
for reporting the following data within 30 days after the end of the cap
period:
(i) Total reimbursement received and receivable for services
furnished CHAMPUS beneficiaries during the cap period, including
physician's services not of an administrative or general supervisory
nature.
(ii) Total reimbursement received and receivable for general
inpatient care and inpatient respite care furnished to CHAMPUS
beneficiaries during the cap period.
(iii) Total number of inpatient days furnished to CHAMPUS hospice
patients (both general inpatient and inpatient respite days) during the
cap period.
(iv) Total number of CHAMPUS hospice days (both inpatient and home
care) during the cap period.
(v) Total number of beneficiaries electing hospice care. The
following rules must be adhered to by the hospice in determining the
number of CHAMPUS beneficiaries who have elected hospice care during the
period:
(A) The beneficiary must not have been counted previously in either
another hospice's cap or another reporting year.
(B) The beneficiary must file an initial election statement during
the period beginning September 28 of the previous cap year through
September 27 of the current cap year in order to be counted as an
electing CHAMPUS beneficiary during the current cap year.
(C) Once a beneficiary has been included in the calculation of a
hospice cap amount, he or she may not be included in the cap for that
hospice again, even if the number of covered days in a subsequent
reporting period exceeds that of the period where the beneficiary was
included.
(D) There will be proportional application of the cap amount when a
beneficiary elects to receive hospice benefits from two or more
different CHAMPUS-certified hospices. A calculation must be made to
determine the percentage of the patient's length of stay in each hospice
relative to the total length of hospice stay.
(8) Reconsideration of cap amount and inpatient limit. A hospice
dissatisfied with the contractor's calculation and application of its
cap amount and/or inpatient limitation may request and obtain a
contractor review if the amount of program reimbursement in
controversy--with respect to matters which the hospice has a right to
review--is at least $1000. The administrative review by the contractor
of the calculation and application of the cap amount and inpatient
limitation is the only administrative review available. These
calculations are not subject to the appeal procedures set forth in Sec.
199.10. The methods and standards for calculation of the hospice payment
rates established by CHAMPUS, as well as questions as to the validity of
the applicable law, regulations or CHAMPUS decisions, are not subject to
administrative review, including the appeal procedures of Sec. 199.10.
(9) Beneficiary cost-sharing. There are no deductibles under the
CHAMPUS hospice benefit. CHAMPUS pays the full cost of all covered
services for the terminal illness, except for small cost-share amounts
which may be collected by the individual hospice for outpatient drugs
and biologicals and inpatient respite care.
(i) The patient is responsible for 5 percent of the cost of
outpatient drugs
[[Page 305]]
or $5 toward each prescription, whichever is less. Additionally, the
cost of prescription drugs (drugs or biologicals) may not exceed that
which a prudent buyer would pay in similar circumstances; that is, a
buyer who refuses to pay more than the going price for an item or
service and also seeks to economize by minimizing costs.
(ii) For inpatient respite care, the cost-share for each respite
care day is equal to 5 percent of the amount CHAMPUS has estimated to be
the cost of respite care, after adjusting the national rate for local
wage differences.
(iii) The amount of the individual cost-share liability for respite
care during a hospice cost-share period may not exceed the Medicare
inpatient hospital deductible applicable for the year in which the
hospice cost-share period began. The individual hospice cost-share
period begins on the first day an election is in effect for the
beneficiary and ends with the close of the first period of 14
consecutive days on each of which an election is not in effect for the
beneficiary.
(h) Reimbursement of Home Health Agencies (HHAs). HHAs will be
reimbursed using the same methods and rates as used under the Medicare
HHA prospective payment system under Section 1895 of the Social Security
Act (42 U.S.C. 1395fff) and 42 CFR Part 484, Subpart E except as
otherwise necessary to recognize distinct characteristics of TRICARE
beneficiaries and as described in instructions issued by the Director,
TMA. Under this methodology, an HHA will receive a fixed case-mix and
wage-adjusted national 60-day episode payment amount as payment in full
for all costs associated with furnishing home health services to
TRICARE-eligible beneficiaries with the exception of osteoporosis drugs
and DME. The full case-mix and wage-adjusted 60-day episode amount will
be payment in full subject to the following adjustments and additional
payments:
(1) Split percentage payments. The initial percentage payment for
initial episodes is paid to an HHA at 60 percent of the case-mix and
wage adjusted 60-day episode rate. The residual final payment for
initial episodes is paid at 40 percent of the case-mix and wage adjusted
60-day episode rate subject to appropriate adjustments. The initial
percentage payment for subsequent episodes is paid at 50 percent of the
case-mix and wage-adjusted 60-day episode rate. The residual final
payment for subsequent episodes is paid at 50 percent of the case-mix
and wage-adjusted 60-day episode rate subject to appropriate
adjustments.
(2) Low-utilization payment. A low utilization payment is applied
when a HHA furnishes four or fewer visits to a beneficiary during the
60-day episode. The visits are paid at the national per-visit amount by
discipline updated annually by the applicable market basket for each
visit type.
(3) Partial episode payment (PEP). A PEP adjustment is used for
payment of an episode of less than 60 days resulting from a
beneficiary's elected transfer to another HHA prior to the end of the
60-day episode or discharge and readmission of a beneficiary to the same
HHA before the end of the 60-day episode. The PEP payment is calculated
by multiplying the proportion of the 60-day episode during which the
beneficiary remained under the care of the original HHA by the
beneficiary's assigned 60-day episode payment.
(4) Significant change in condition (SCIC). The full-episode payment
amount is adjusted if a beneficiary experiences a significant change in
condition during the 60-day episode that was not envisioned in the
initial treatment plan. The total significant change in condition
payment adjustment is a proportional payment adjustment reflecting the
time both prior to and after the patient experienced a significant
change in condition during the 60-day episode. The initial percentage
payment provided at the start of the 60-day episode will be adjusted at
the end of the episode to reflect the first and second parts of the
total SCIC adjustment determined at the end of the 60-day episode. The
SCIC payment adjustment is calculated in two parts:
(i) The first part of the SCIC payment adjustment reflects the
adjustment to the level of payment prior to the significant change in
the patient's condition during the 60-day episode.
[[Page 306]]
(ii) The second part of the SCIC payment adjustment reflects the
adjustment to the level of payment after the significant change in the
patient's condition occurs during the 60-day episode.
(5) Outlier payment. Outlier payments are allowed in addition to
regular 60-day episode payments for beneficiaries generating excessively
high treatment costs. The following methodology is used for calculation
of the outlier payment:
(i) TRICARE makes an outlier payment for an episode whose estimated
cost exceeds a threshold amount for each case-mix group.
(ii) The outlier threshold for each case-mix group is the episode
payment amount for that group, the PEP adjustment amount for the episode
or the total significant change in condition adjustment amount for the
episode plus a fixed dollar loss amount that is the same for all case-
mix groups.
(iii) The outlier payment is a proportion of the amount of estimated
cost beyond the threshold.
(iv) TRICARE imputes the cost for each episode by multiplying the
national per-visit amount of each discipline by the number of visits in
the discipline and computing the total imputed cost for all disciplines.
(v) The fixed dollar loss amount and the loss sharing proportion are
chosen so that the estimated total outlier payment is no more than the
predetermined percentage of total payment under the home health PPS as
set by the Centers for Medicare & Medicaid Services (CMS).
(6) Services paid outside the HHA prospective payment system. The
following are services that receive a separate payment amount in
addition to the prospective payment amount for home health services:
(i) Durable medical equipment (DME). Reimbursement of DME is based
on the same amounts established under the Medicare Durable Medical
Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) fee schedule
under 42 CFR part 414, subpart D.
(ii) Osteoporosis drugs. Although osteoporosis drugs are subject to
home health consolidated billing, they continue to be paid on a cost
basis, in addition to episode payments.
(7) Accelerated payments. Upon request, an accelerated payment may
be made to an HHA that is receiving payment under the home health
prospective payment system if the HHA is experiencing financial
difficulties because there is a delay by the contractor in making
payment to the HHA. The following are criteria for making accelerated
payments:
(i) Approval of payment. An HHA's request for an accelerated payment
must be approved by the contractor and TRICARE Management Activity
(TMA).
(ii) Amount of payment. The amount of the accelerated payment is
computed as a percentage of the net payment for unbilled or unpaid
covered services.
(iii) Recovery of payment. Recovery of the accelerated payment is
made by recoupment as HHA bills are processed or by direct payment by
the HHA.
(8) Assessment data. Beneficiary assessment data, incorporating the
use of the current version of the OASIS items, must be submitted to the
contractor for payment under the HHA prospective payment system.
(9) Administrative review. An HHA is not entitled to judicial or
administrative review with regard to:
(i) Establishment of the payment unit, including the national 60-day
prospective episode payment rate, adjustments and outlier payment.
(ii) Establishment of transition period, definition and application
of the unit of payment.
(iii) Computation of the initial standard prospective payment
amounts.
(iv) Establishment of case-mix and area wage adjustment factors.
(i) Changes in Federal Law affecting Medicare. With regard to
paragraph (b) and (h) of this section, the Department of Defense must,
within the time frame specified in law and to the extent it is
practicable, bring the TRICARE program into compliance with any changes
in Federal Law affecting the Medicare program that occur after the
effective date of the DoD rule to implement the prospective payment
systems for skilled nursing facilities and home health agencies.
(j) Reimbursement of individual health care professionals and other
[[Page 307]]
non-institutional, non-professional providers. The CHAMPUS-determined
reasonable charge (the amount allowed by CHAMPUS) for the service of an
individual health care professional or other non-institutional, non-
professional provider (even if employed by or under contract to an
institutional provider) shall be determined by one of the following
methodologies, that is, whichever is in effect in the specific
geographic location at the time covered services and supplies are
provided to a CHAMPUS beneficiary.
(1) Allowable charge method--(i) Introduction--(A) In general. The
allowable charge method is the preferred and primary method for
reimbursement of individual health care professionals and other non-
institutional health care providers (covered by 10 U.S.C. 1079(h)(1)).
The allowable charge for authorized care shall be the lower of the
billed charge or the local CHAMPUS Maximum Allowable Charge (CMAC).
(B) CHAMPUS Maximum Allowable Charge. Beginning in calendar year
1992, prevailing charge levels and appropriate charge levels will be
calculated on a national level. There will then be calculated a national
CHAMPUS Maximum Allowable Charge (CMAC) level for each procedure, which
shall be the lesser of the national prevailing charge level or the
national appropriate charge level. The national CMAC will then be
adjusted for localities in accordance with paragraph (j)(1)(iv) of this
section.
(C) Limits on balance billing by nonparticipating providers.
Nonparticipating providers may not balance bill a beneficiary an amount
which exceeds the applicable balance billing limit. The balance billing
limit shall be the same percentage as the Medicare limiting charge
percentage for nonparticipating physicians. The balance billing limit
may be waived by the Director, OCHAMPUS on a case-by-case basis if
requested by the CHAMPUS beneficiary (or sponsor) involved. A decision
by the Director to waive or not waive the limit in any particular case
is not subject to the appeal and hearing procedures of Sec. 199.10.
(D) Special rule for TRICARE Prime Enrollees. In the case of a
TRICARE Prime enrollee (see section 199.17) who receives authorized care
from a non-participating provider, the CHAMPUS determined reasonable
charge will be the CMAC level as established in paragraph (j)(1)(i)(B)
of this section plus any balance billing amount up to the balance
billing limit as referred to in paragraph (j)(1)(i)(C) of this section.
The authorization for such care shall be pursuant to the procedures
established by the Director, OCHAMPUS (also referred to as the TRICARE
Support Office).
(E) Special rule for certain TRICARE Standard Beneficiaries. In the
case of dependent spouse or child, as defined in paragraphs
(b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and (4) of Sec.
199.3, of a Reserve Component member serving on active duty pursuant to
a call or order to active duty for a period of more than 30 days in
support of a contingency operation under a provision of law referred to
in section 101(a)(13)(B) of title 10, United States Code, the Director,
TRICARE Management Activity, may authorize non-participating providers
the allowable charge to be the CMAC level as established in paragraph
(j)(l)(i)(B) of this section plus any balance billing amount up to the
balance billing limit as referred to in paragraph (j)(l)(i)(C) of this
section.
(ii) Prevailing charge level. (A) Beginning in calendar year 1992,
the prevailing charge level shall be calculated on a national basis.
(B) The national prevailing charge level referred to in paragraph
(j)(1)(ii)(A) of this section is the level that does not exceed the
amount equivalent to the 80th percentile of billed charges made for
similar services during the base period. The 80th percentile of charges
shall be determined on the basis of statistical data and methodology
acceptable to the Director, OCHAMPUS (or a designee).
(C) For purposes of paragraph (j)(1)(ii)(B) of this section, the
base period shall be a period of 12 calendar months and shall be
adjusted once a year, unless the Director, OCHAMPUS, determines that a
different period for adjustment is appropriate and publishes a notice to
that effect in the Federal Register.
[[Page 308]]
(iii) Appropriate charge level. Beginning in calendar year 1992, the
appropriate charge level shall be calculated on a national basis. The
appropriate charge level for each procedure is the product of the two-
step process set forth in paragraphs (j)(1)(iii) (A) and (B) of this
section. This process involves comparing the prior year's CMAC with the
fully phased in Medicare fee. For years after the Medicare fee has been
fully phased in, the comparison shall be to the current year Medicare
fee. For any particular procedure for which comparable Medicare fee and
CHAMPUS data are unavailable, but for which alternative data are
available that the Director, OCHAMPUS (or designee) determines provide a
reasonable approximation of relative value or price, the comparison may
be based on such alternative data.
(A) Step 1: Procedures classified. All procedures are classified
into one of three categories, as follows:
(1) Overpriced procedures. These are the procedures for which the
prior year's national CMAC exceeds the Medicare fee.
(2) Other procedures. These are procedures subject to the allowable
charge method that are not included in either the overpriced procedures
group or the underpriced procedures group.
(3) Underpriced procedures. These are the procedures for which the
prior year's national CMAC is less than the Medicare fee.
(B) Step 2: Calculating appropriate charge levels. For each year,
appropriate charge levels will be calculated by adjusting the prior
year's CMAC as follows:
(1) For overpriced procedures, the appropriate charge level for each
procedure shall be the prior year's CMAC, reduced by the lesser of: the
percentage by which it exceeds the Medicare fee or fifteen percent.
(2) For other procedures, the appropriate charge level for each
procedure shall be the same as the prior year's CMAC.
(3) For underpriced procedures, the appropriate charge level for
each procedure shall be the prior year's CMAC, increased by the lesser
of: the percentage by which it is exceeded by the Medicare fee or the
Medicare Economic Index.
(C) Special rule for cases in which the CHAMPUS appropriate charge
was prematurely reduced. In any case in which a recalculation of the
Medicare fee results in a Medicare rate higher than the CHAMPUS
appropriate charge for a procedure that had been considered an
overpriced procedure, the reduction in the CHAMPUS appropriate charge
shall be restored up to the level of the recalculated Medicare rate.
(D) Special rule for cases in which the national CMAC is less than
the Medicare rate.
Note: This paragraph will be implemented when CMAC rates are
published.
In any case in which the national CMAC calculated in accordance with
paragraphs (j)(1)(i) through (iii) of this section is less than the
Medicare rate, the Director, TSO, may determine that the use of the
Medicare Economic Index under paragraph (j)(1)(iii)(B) of this section
will result in a CMAC rate below the level necessary to assure that
beneficiaries will retain adequate access to health care services. Upon
making such a determination, the Director, TSO, may increase the
national CMAC to a level not greater than the Medicare rate.
(iv) Calculating CHAMPUS Maximum Allowable Charge levels for
localities--(A) In general. The national CHAMPUS Maximum Allowable
Charge level for each procedure will be adjusted for localities using
the same (or similar) geographical areas and the same geographic
adjustment factors as are used for determining allowable charges under
Medicare.
(B) Special locality-based phase-in provision--(1) In general.
Beginning with the recalculation of CMACS for calendar year 1993, the
CMAC in a locality will not be less than 72.25 percent of the maximum
charge level in effect for that locality on December 31, 1991. For
recalculations of CMACs for calendar years after 1993, the CMAC in a
locality will not be less than 85 percent of the CMAC in effect for that
locality at the end of the prior calendar year.
(2) Exception. The special locality-based phase-in provision
established by paragraph (j)(1)(iv)(B)(1) of this section
[[Page 309]]
shall not be applicable in the case of any procedure code for which
there were not CHAMPUS claims in the locality accounting for at least 50
services.
(C) Special locality-based waivers of reductions to assure adequate
access to care. Beginning with the recalculation of CMACs for calendar
year 1993, in the case of any procedure classified as an overpriced
procedure pursuant to paragraph (j)(1)(iii)(A)(1) of this section, a
reduction in the CMAC in a locality below the level in effect at the end
of the previous calendar year that would otherwise occur pursuant to
paragraphs (j)(1)(iii) and (j)(1)(iv) of this section may be waived
pursuant to paragraph (j)(1)(iii)(C) of this section.
(1) Waiver based on balanced billing rates. Except as provided in
paragraph (j)(1)(iv)(C)(2) of this section such a reduction will be
waived if there has been excessive balance billing in the locality for
the procedure involved. For this purpose, the extent of balance billing
will be determined based on a review of all services under the procedure
code involved in the prior year (or most recent period for which data
are available). If the number of services for which balance billing was
not required was less than 60 percent of all services provided, the
Director will determine that there was excessive balance billing with
respect to that procedure in that locality and will waive the reduction
in the CMAC that would otherwise occur. A decision by the Director to
waive or not waive the reduction is not subject to the appeal and
hearing procedures of Sec. 199.10.
(2) Exception. As an exception to the paragraph (j)(1)(iv)(C)(1) of
this section, the waiver required by that paragraph shall not be
applicable in the case of any procedure code for which there were not
CHAMPUS claims in the locality accounting for at least 50 services. A
waiver may, however, be granted in such cases pursuant to paragraph
(j)(1)(iv)(C)(3) of this section.
(3) Waiver based on other evidence that adequate access to care
would be impaired. The Director, OCHAMPUS may waive a reduction that
would otherwise occur (or restore a reduction that was already taken) if
the Director determines that available evidence shows that the reduction
would impair adequate access. For this purpose, such evidence may
include consideration of the number of providers in the locality who
provide the affected services, the number of such providers who are
CHAMPUS Participating Providers, the number of CHAMPUS beneficiaries in
the area, and other relevant factors. Providers or beneficiaries in a
locality may submit to the Director, OCHAMPUS a petition, together with
appropriate documentation regarding relevant factors, for a
determination that adequate access would be impaired. The Director,
OCHAMPUS will consider and respond to all such petitions. Petitions may
be filed at any time. Any petition received by the date which is 120
days prior to the implementation of a recalculation of CMACs will be
assured of consideration prior to that implementation. The Director,
OCHAMPUS may establish procedures for handling petitions. A decision by
the Director to waive or not waive a reduction is not subject to the
appeal and hearing procedures of Sec. 199.10.
(D) Special locality-based exception to applicable CMACs to assure
adequate beneficiary access to care. In addition to the authority to
waive reductions under paragraph (j)(1)(iv)(C) of this section, the
Director may authorize establishment of higher payment rates for
specific services than would otherwise be allowable, under paragraph
(j)(1) of this section, if the Director determines that available
evidence shows that access to health care services is severely impaired.
For this purpose, such evidence may include consideration of the number
of providers in the locality who provide the affected services, the
number of providers who are CHAMPUS participating providers, the number
of CHAMPUS beneficiaries in the locality, the availability of military
providers in the location or nearby, and any other factors the Director
determines relevant.
(1) Procedure. Providers or beneficiaries in a locality may submit
to the Director, a petition, together with appropriate documentation
regarding relevant factors, for a determination that adequate access to
health care services is severely impaired. The Director, will consider
and respond to all
[[Page 310]]
petitions. A decision to authorize a higher payment amount is subject to
review and determination or modification by the Director at any time if
circumstances change so that adequate access to health care services
would no longer be severely impaired. A decision by the Director, to
authorize, not authorize, terminate, or modify authorization of higher
payment amounts is not subject to the appeal and hearing procedures of
Sec. 199.10 of the part.
(2) Establishing the higher payment rate(s). When the Director,
determines that beneficiary access to health care services in a locality
is severely impaired, the Director may establish the higher payment
rate(s) as he or she deems appropriate and cost-effective through one of
the following methodologies to assure adequate access:
(i) A percent factor may be added to the otherwise applicable
payment amount allowable under paragraph (j)(1) of this section;
(ii) A prevailing charge may be calculated, by applying the
prevailing charge methodology of paragraph (j)(1)(ii) of this section to
a specific locality (which need not be the same as the localities used
for purposes of paragraph (j)(1)(iv)(A) of this section; or another
government payment rate may be adopted, for example, an applicable state
Medicaid rate).
(3) Application of higher payment rates. Higher payment rates
defined under paragraph (j)(1)(iv)(D) of this section may be applied to
all similar services performed in a locality, or, if circumstances
warrant, a new locality may be defined for application of the higher
payments. Establishment of a new locality may be undertaken where access
impairment is localized and not pervasive across the existing locality.
Generally, establishment of a new, more specific locality will occur
when the area is remote so that geographical characteristics and other
factors significantly impair transportation through normal means to
health care services routinely available within the existing locality.
(E) Special locality-based exception to applicable CMACs to ensure
an adequate TRICARE Prime preferred network. The Director, may authorize
reimbursements to health care providers participating in a TRICARE
preferred provider network under Sec. 199.17(p) of this part at rates
higher than would otherwise be allowable under paragraph (j)(1) of this
section, if the Director, determines that application of the higher
rates is necessary to ensure the availability of an adequate number and
mix of qualified health care providers in a network in a specific
locality. This authority may only be used to ensure adequate networks in
those localities designated by the Director, as requiring TRICAR
preferred provider networks, not in localities in which preferred
provider networks have been suggested or established but are not
determined by the Director to be necessary. Appropriate evidence for
determining that higher rates are necessary may include consideration of
the number of available primary care and specialist providers in the
network locality, availability (including reassignment) of military
providers in the location or nearby, the appropriate mix of primary care
and specialists needed to satisfy demand and meet appropriate patient
access standards (appointment/waiting time, travel distance, etc.), the
efforts that have been made to create an adequate network, other cost-
effective alternatives, and other relevant factors. The Director, may
establish procedures by which exceptions to applicable CMACs are
requested and approved or denied under paragraph (j)(1)(iv)(E) of this
section. A decision by the Director, to authorize or deny an exception
is not subject to the appeal and hearing procedures of Sec. 199.10.
When the Director, determines that it is necessary and cost-effective to
approve a higher rate or rates in order to ensure the availability of an
adequate number of qualified health care providers in a network in a
specific locality, the higher rate may not exceed the lesser of the
following:
(1) The amount equal to the local fee for service charge for the
service in the service area in which the service is provided as
determined by the Director, based on one or more of the following
payment rates:
(i) Usual, customary, and reasonable;
(ii) The Health Care Financing Administration's Resource Based
Relative Value Scale;
[[Page 311]]
(iii) Negotiated fee schedules;
(iv) Global fees; or
(v) Sliding scale individual fee allowances.
(2) The amount equal to 115 percent of the otherwise allowable
charge under paragraph (j)(1) of the section for the service.
(v) Special rules for 1991. (A) Appropriate charge levels for care
provided on or after January 1, 1991, and before the 1992 appropriate
levels take effect shall be the same as those in effect on December 31,
1990, except that appropriate charge levels for care provided on or
after October 7, 1991, shall be those established pursuant to this
paragraph (j)(1)(v) of this section.
(B) Appropriate charge levels will be established for each locality
for which an appropriate charge level was in effect immediately prior to
October 7, 1991. For each procedure, the appropriate charge level shall
be the prevailing charge level in effect immediately prior to October 7,
1991, adjusted as provided in (j)(1)(v)(B) (1) through (3) of this
section.
(1) For each overpriced procedure, the level shall be reduced by
fifteen percent. For this purpose, overpriced procedures are the
procedures determined by the Physician Payment Review Commission to be
overvalued pursuant to the process established under the Medicare
program, other procedures considered overvalued in the Medicare program
(for which Congress directed reductions in Medicare allowable levels for
1991), radiology procedures and pathology procedures.
(2) For each other procedure, the level shall remain unchanged. For
this purpose, other procedures are procedures which are not overpriced
procedures or primary care procedures.
(3) For each primary care procedure, the level shall be adjusted by
the MEI, as the MEI is applied to Medicare prevailing charge levels. For
this purpose, primary care procedures include maternity care and
delivery services and well baby care services.
(C) For purposes of this paragraph (j)(i)(v), ``appropriate charge
levels'' in effect at any time prior to October 7, 1991 shall mean the
lesser of:
(1) The prevailing charge levels then in effect, or
(2) The fiscal year 1988 prevailing charge levels adjusted by the
Medicare Economic Index (MEI), as the MEI was applied beginning in the
fiscal year 1989.
(vi) Special transition rule for 1992. (A) For purposes of
calculating the national appropriate charge levels for 1992, the prior
year's appropriate charge level for each service will be considered to
be the level that does not exceed the amount equivalent to the 80th
percentile of billed charges made for similar services during the base
period of July 1, 1986 to June 30, 1987 (determined as under paragraph
(j)(1)(ii)(B) of this section), adjusted to calendar year 1991 based on
the adjustments made for maximum CHAMPUS allowable charge levels through
1990 and the application of paragraph (j)(1)(v) of this section for
1991.
(B) The adjustment to calendar year 1991 of the product of paragraph
(j)(1)(vi)(A) of this section shall be as follows:
(1) For procedures other than those described in paragraph
(j)(1)(vi)(B)(2) of this section, the adjustment to 1991 shall be on the
same basis as that provided under paragraph (j)(1)(v) of this section.
(2) For any procedure that was considered an overpriced procedure
for purposes of the 1991 appropriate charge levels under paragraph
(j)(1)(v) of this section for which the resulting 1991 appropriate
charge level was less than 150 percent of the Medicare converted
relative value unit, the adjustment to 1991 for purposes of the special
transition rule for 1992 shall be as if the procedure had been treated
under paragraph (j)(1)(v)(B)(2) of this section for purposes of the 1991
appropriate charge level.
(vii) Adjustments and procedural rules. (A) The Director, OCHAMPUS
may make adjustments to the appropriate charge levels calculated
pursuant to paragraphs (j)(1)(iii) and (j)(1)(v) of this section to
correct any anomalies resulting from data or statistical factors,
significant differences between Medicare-relevant information and
CHAMPUS-relevant considerations or
[[Page 312]]
other special factors that fairness requires be specially recognized.
However, no such adjustment may result in reducing an appropriate charge
level.
(B) The Director, OCHAMPUS will issue procedural instructions for
administration of the allowable charge method.
(viii) Clinical laboratory services. The allowable charge for
clinical diagnostic laboratory test services shall be calculated in the
same manner as allowable charges for other individual health care
providers are calculated pursuant to paragraphs (j)(1)(i) through
(j)(1)(iv) of this section, with the following exceptions and
clarifications.
(A) The calculation of national prevailing charge levels, national
appropriate charge levels and national CMACs for laboratory service
shall begin in calendar year 1993. For purposes of the 1993 calculation,
the prior year's national appropriate charge level or national
prevailing charge level shall be the level that does not exceed the
amount equivalent to the 80th percentile of billed charges made for
similar services during the period July 1, 1991, through June 30, 1992
(referred to in this paragraph (j)(1)(viii) of this section as the
``base period'').
(B) For purposes of comparison to Medicare allowable payment amounts
pursuant to paragraph (j)(1)(iii) of this section, the Medicare national
laboratory payment limitation amounts shall be used.
(C) For purposes of establishing laboratory service local CMACs
pursuant to paragraph (j)(1)(iv) of this section, the adjustment factor
shall equal the ratio of the local average charge (standardized for the
distribution of clinical laboratory services) to the national average
charge for all clinical laboratory services during the base period.
(D) For purposes of a special locality-based phase-in provision
similar to that established by paragraph (j)(1)(iv)(B) of this section,
the CMAC in a locality will not be less than 85 percent of the maximum
charge level in effect for that locality during the base period.
(ix) The allowable charge for physician assistant services other
than assistant-at-surgery shall be at the same percentage, used by
Medicare, of the allowable charge for a comparable service rendered by a
physician performing the service in a similar location. For cases in
which the physician assistant and the physician perform component
services of a procedure other than assistant-at-surgery (e.g., home,
office, or hospital visit), the combined allowable charge for the
procedure may not exceed the allowable charge for the procedure rendered
by a physician alone. The allowable charge for physician assistant
services performed as an assistant-at-surgery shall be at the same
percentage, used by Medicare, of the allowable charge for a physician
serving as an assistant surgeon when authorized as CHAMPUS benefits in
accordance with the provisions of Sec. 199.4(c)(3)(iii). Physician
assistant services must be billed through the employing physician who
must be an authorized CHAMPUS provider.
(x) A charge that exceeds the CHAMPUS Maximum Allowable Charge can
be determined to be allowable only when unusual circumstances or medical
complications justify the higher charge. The allowable charge may not
exceed the billed charge under any circumstances.
(xi) Pharmaceutical agents utilized as part of medically necessary
medical services. In general, the TRICARE-determined allowed amount
shall be equal to an amount determined to be appropriate, to the extent
practicable, in accordance with the same reimbursement rules as apply to
payments for similar services under Medicare. Under the authority of 10
U.S.C. 1079(q), in the case of any pharmaceutical agent utilized as part
of medically necessary medical services, the Director may adopt special
reimbursement methods, amounts, and procedures to encourage the use of
high-value products and discourage the use of low-value products, as
determined by the Director. For this purpose, the Director may obtain
recommendations from the Pharmaceutical and Therapeutics Committee under
Sec. 199.21 or other entities as the Director, DHA deems appropriate
with respect to the relative value of products in a class of products
subject to this paragraph. Among the special reimbursement methods the
Director
[[Page 313]]
may choose to adopt under this paragraph is to reimburse the average
sales price of a product plus a percentage of the median of the average
sales prices of products in the product class or category. The Director
shall issue guidance regarding the special reimbursement methods adopted
and the appropriate reimbursement rates.
(2) Bonus payments in medically underserved areas. A bonus payment,
in addition to the amount normally paid under the allowable charge
methodology, may be made to physicians in medically underserved areas.
For purposes of this paragraph, medically underserved areas are the same
as those determined by the Secretary of Health and Human Services for
the Medicare program. Such bonus payments shall be equal to the bonus
payments authorized by Medicare, except as necessary to recognize any
unique or distinct characteristics or requirements of the TRICARE
program, and as described in instructions issued by the Executive
Director, TRICARE Management Activity. If the Department of Health and
Human Services acts to amend or remove the provision for bonus payments
under Medicare, TRICARE likewise may follow Medicare in amending or
removing provision for such payments.
(3) All-inclusive rate. Claims from individual health-care
professional providers for services rendered to CHAMPUS beneficiaries
residing in an RTC that is either being reimbursed on an all-inclusive
per diem rate, or is billing an all-inclusive per diem rate, shall be
denied; with the exception of independent health-care professionals
providing geographically distant family therapy to a family member
residing a minimum of 250 miles from the RTC or covered medical services
related to a nonmental health condition rendered outside the RTC.
Reimbursement for individual professional services is included in the
rate paid the institutional provider.
(4) Alternative method. The Director, OCHAMPUS, or a designee, may,
subject to the approval of the ASD(HA), establish an alternative method
of reimbursement designed to produce reasonable control over health care
costs and to ensure a high level of acceptance of the CHAMPUS-determined
charge by the individual health-care professionals or other
noninstitutional health-care providers furnishing services and supplies
to CHAMPUS beneficiaries. Alternative methods may not result in
reimbursement greater than the allowable charge method above.
(k) Reimbursement of Durable Medical Equipment, Prosthetics,
orthotics and Supplies 9DMEPOS). Reimbursement of DMEPOS may be based on
the same amounts established under the Centers for Medicare and Medicaid
Services (CMS) DMEPOS fee schedule under 42 CFR part 414, subpart D.
(l) Reimbursement Under the Military-Civilian Health Services
Partnership Program. The Military-Civilian Health Services Partnership
Program, as authorized by section 1096, chapter 55, title 10, provides
for the sharing of staff, equipment, and resources between the civilian
and military health care system in order to achieve more effective,
efficient, or economical health care for authorized beneficiaries.
Military treatment facility commanders, based upon the authority
provided by their respective Surgeons General of the military
departments, are responsible for entering into individual partnership
agreements only when they have determined specifically that use of the
Partnership Program is more economical overall to the Government than
referring the need for health care services to the civilian community
under the normal operation of the CHAMPUS Program. (See paragraph (p) of
Sec. 199.1 for general requirements of the Partnership Program.)
(1) Reimbursement of institutional health care providers.
Reimbursement of institutional health care providers under the
Partnership Program shall be on the same basis as non-Partnership
providers.
(2) Reimbursement of individual health-care professionals and other
non-institutional health care providers. Reimbursement of individual
health care professionals and other non-institutional health care
providers shall be on the same basis as non-Partnership providers as
detailed in paragraph (j) of this section.
[[Page 314]]
(m) Accommodation of Discounts Under Provider Reimbursement
Methods--(1) General rule. The Director. OCHAMPUS (or designee) has
authority to reimburse a provider at an amount below the amount usually
paid pursuant to this section when, under a program approved by the
Director, the provider has agreed to the lower amount.
(2) Special applications. The following are examples of applications
of the general rule; they are not all inclusive.
(i) In the case and individual health care professionals and other
non-institutional providers, if the discounted fee is below the
provider's normal billed charge and the prevailing charge level (see
paragraph (g) of this section), the discounted fee shall be the
provider's actual billed charge and the CHAMPUS allowable charge.
(ii) In the case of institutional providers normally paid on the
basis of a pre-set amount (such as DRG-based amount under paragraph
(a)(1) of this section or per-diem amount under paragraph (a)(2) of this
section), if the discount rate is lower than the pre-set rate, the
discounted rate shall be the CHAMPUS-determined allowable cost. This is
an exception to the usual rule that the pre-set rate is paid regardless
of the institutional provider's billed charges or other factors.
(3) Procedures. (i) This paragraph applies only when both the
provider and the Director have agreed to the discounted payment rate.
The Director's agreement may be in the context of approval of a program
that allows for such discounts.
(ii) The Director of OCHAMPUS may establish uniform terms,
conditions and limitations for this payment method in order to avoid
administrative complexity.
(n) Outside the United States. The Director, OCHAMPUS, or a
designee, shall determine the appropriate reimbursement method or
methods to be used in the extension of CHAMPUS benefits for otherwise
covered medical services or supplies provided by hospitals or other
institutional providers, physicians or other individual professional
providers, or other providers outside the United States.
(o) Implementing Instructions. The Director, OCHAMPUS, or a
designee, shall issue CHAMPUS policies, instructions, procedures, and
guidelines, as may be necessary to implement the intent of this section.
[55 FR 13266, Apr. 10, 1990]
Editorial Note: For Federal Register citations affecting Sec.
199.14, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 199.15 Quality and utilization review peer review organization
program.
(a) General--(1) Purpose. The purpose of this section is to
establish rules and procedures for the CHAMPUS Quality and Utilization
Review Peer Review Organization program.
(2) Applicability of program. All claims submitted for health
services under CHAMPUS are subject to review for quality of care and
appropriate utilization. The Director, OCHAMPUS shall establish
generally accepted standards, norms and criteria as are necessary for
this program of utilization and quality review. These standards, norms
and criteria shall include, but not be limited to, need for inpatient
admission or inpatient or outpatient service, length of inpatient stay,
intensity of care, appropriateness of treatment, and level of
institutional care required. The Director, OCHAMPUS may issue
implementing instructions, procedures and guidelines for retrospective,
concurrent and prospective review.
(3) Contractor implementation. The CHAMPUS Quality and Utilization
Review Peer Review Organization program may be implemented through
contracts administered by the Director, OCHAMPUS. These contractors may
include contractors that have exclusive functions in the area of
utilization and quality review, fiscal intermediary contractors (which
perform these functions along with a broad range of administrative
services), and managed care contractors (which perform a range of
functions concerning management of the delivery and financing of health
care services under CHAMPUS). Regardless of the contractors involved,
utilization and quality review activities follow the same standards,
rules and procedures set forth in this section, unless otherwise
[[Page 315]]
specifically provided in this section or elsewhere in this part.
(4) Medical issues affected. The CHAMPUS Quality and Utilization
Review Peer Review Organization program is distinguishable in purpose
and impact from other activities relating to the administration and
management of CHAMPUS in that the Peer Review Organization program is
concerned primarily with medical judgments regarding the quality and
appropriateness of health care services. Issues regarding such matters
as benefit limitations are similar, but, if not determined on the basis
of medical judgments, are governed by CHAMPUS rules and procedures other
than those provided in this section. (See, for example, Sec. 199.7
regarding claims submission, review and payment.) Based on this purpose,
a major attribute of the Peer Review Organization program is that
medical judgments are made by (directly or pursuant to guidelines and
subject to direct review) reviewers who are peers of the health care
providers providing the services under review.
(5) Provider responsibilities. Because of the dominance of medical
judgments in the quality and utilization review program, principal
responsibility for complying with program rules and procedures rests
with health care providers. For this reason, there are limitations, set
forth in this section and in Sec. 199.4(h), on the extent to which
beneficiaries may be held financially liable for health care services
not provided in conformity with rules and procedures of the quality and
utilization review program concerning medical necessity of care.
(6) Medicare rules used as model. The CHAMPUS Quality and
Utilization Review Peer Review Organization program, based on specific
statutory authority, follows many of the quality and utilization review
requirements and procedures in effect for the Medicare Peer Review
Organization program, subject to adaptations appropriate for the CHAMPUS
program. In recognition of the similarity of purpose and design between
the Medicare and CHAMPUS PRO programs, and to avoid unnecessary
duplication of effort, the CHAMPUS Quality and Utilization Review Peer
Review Organization program will have special procedures applicable to
supplies and services furnished to Medicare-eligible CHAMPUS
beneficiaries. These procedures will enable CHAMPUS normally to rely
upon Medicare determinations of medical necessity and appropriateness in
the processing of CHAMPUS claims as a second payer to Medicare. As a
general rule, only in cases involving Medicare-eligible CHAMPUS
beneficiaries where Medicare payment for services and supplies is denied
for reasons other than medical necessity and appropriateness will the
CHAMPUS claim be subject to review for quality of care and appropriate
utilization under the CHAMPUS PRO program. TRICARE will continue to
perform a medical necessity and appropriateness review for quality of
care and appropriate utilization under the CHAMPUS PRO program where
required by statute.
(b) Objectives and general requirements of review system--(1) In
general. Broadly, the program of quality and utilization review has as
its objective to review the quality, completeness and adequacy of care
provided, as well as its necessity, appropriateness and reasonableness.
(2) Payment exclusion for services provided contrary to utilization
and quality standards. (i) In any case in which health care services are
provided in a manner determined to be contrary to quality or necessity
standards established under the quality and utilization review program,
payment may be wholly or partially excluded.
(ii) In any case in which payment is excluded pursuant to paragraph
(b)(2)(i) of this section, the patient (or the patient's family) may not
be billed for the excluded services.
(iii) Limited exceptions and other special provisions pertaining to
the requirements established in paragraphs (b)(2) (i) and (ii) of this
section, are set forth in Sec. 199.4(h).
(3) Review of services covered by DRG-based payment system.
Application of these objectives in the context of hospital services
covered by the DRG-based payment system also includes a validation of
diagnosis and procedural information that determines
[[Page 316]]
CHAMPUS reimbursement, and a review of the necessity and appropriateness
of care for which payment is sought on an outlier basis.
(4) Preauthorization and other utilization review procedures--(i) In
general. all health care services for which payment is sought under
TRICARE are subject to review for appropriateness of utilization as
determined by the Director, TRICARE Management Activity, or a designee.
(A) The procedures for this review may be prospective (before the
care is provided), concurrent (while the care is in process), or
retrospective (after the care has been provided). Regardless of the
procedures of this utilization review, the same generally accepted
standards, norms and criteria for evaluating the medical necessity,
appropriateness and reasonableness of the care involved shall apply. The
Director, TRICARE Management Activity, or a designee, shall establish
procedures for conducting reviews, including types of health care
services for which preauthorization or concurrent review shall be
required. Preauthorization or concurrent review may be required for
categories of health care services. Except where required by law, the
categories of health care services for which preauthorization or
concurrent review is required may vary in different geographical
locations or for different types of providers.
(B) For healthcare services provided under TRICARE contracts entered
into by the Department of Defense after October 30, 2000, medical
necessity preauthorization will not be required for referrals for
specialty consultation appointment services requested by primary care
providers or specialty providers when referring TRICARE Prime
beneficiaries for specialty consultation appointment services within the
TRICARE contractor's network. However, the lack of medical necessity
preauthorization requirements for consultative appointment services does
not mean that non-emergent admissions or invasive diagnostic or
therapeutic procedures which in and of themselves constitute categories
of health care services related to, but beyond the level of the
consultation appointment service, are not subject to medical necessity
prior authorization. In fact many such health care services may continue
to require medical necessity prior authorization as determined by the
Director, TRICARE Management Activity, or a designee. TRICARE Prime
beneficiaries are also required to obtain preauthorization before
seeking health care services from a non-network provider.
(ii) Preauthorization procedures. With respect to categories of
health care (inpatient or outpatient) for which preauthorization is
required, the following procedures shall apply:
(A) The requirement for preauthorization shall be widely publicized
to beneficiaries and providers.
(B) All requests for preauthorization shall be responded to in
writing. Notification of approval or denial shall be sent to the
beneficiary. Approvals shall specify the health care services and
supplies approved and identify any special limits or further
requirements applicable to the particular case.
(C) An approved preauthorization shall state the number of days,
appropriate for the type of care involved, for which it is valid. In
general, preauthorizations will be valid for 30 days. If the services or
supplies are not obtained within the number of days specified, a new
preauthorization request is required. For organ and stem cell
transplants, the preauthorization shall remain in effect as long as the
beneficiary continues to meet the specific transplant criteria set forth
in the TRICARE/CHAMPUS Policy Manual, or until the approved transplant
occurs.
(D) For healthcare services provided under TRICARE contracts entered
into by the Department of Defense after October 30, 2000, medical
necessity preauthorization for specialty consultation appointment
services within the TRICARE contractor's network will not be required.
However, the Director, TRICARE Management Activity, or designee, may
continue to require or waive medical necessity prior (or pre)
authorization for other categories of other health care services based
on best business practice.
[[Page 317]]
(iii) Payment reduction for noncompliance with required utilization
review procedures. (A) Paragraph (b)(4)(iii) of this section applies to
any case in which:
(1) A provider was required to obtain preauthorization or continued
stay (in connection with required concurrent review procedures)
approval.
(2) The provider failed to obtain the necessary approval; and
(3) The health care services have not been disallowed on the basis
of necessity, appropriateness or reasonableness.
In such a case, reimbursement will be reduced, unless such reduction is
waived based on special circumstances.
(B) In a case described in paragraph (b)(4)(iii)(A) of this section,
reimbursement will be reduced, unless such reduction is waived based on
special circumstances. The amount of this reduction shall be at least
ten percent of the amount otherwise allowable for services for which
preauthorization (including preauthorization for continued stays in
connection with concurrent review requirements) approval should have
been obtained, but was not obtained.
(C) The payment reduction set forth in paragraph (b)(4)(iii)(B) of
this section may be waived by the Director, OCHAMPUS when the provider
could not reasonably have been expected to know of the preauthorization
requirement or some other special circumstance justifies the waiver.
(D) Services for which payment is disallowed under paragraph
(b)(4)(iii) of this section may not be billed to the patient (or the
patient's family).
(c) Hospital cooperation. All hospitals which participate in CHAMPUS
and submit CHAMPUS claims are required to provide all information
necessary for CHAMPUS to properly process the claims. In order for
CHAMPUS to be assured that services for which claims are submitted meet
quality of care standards, hospitals are required to provide the Peer
Review Organization (PRO) responsible for quality review with all the
information, within timeframes to be established by OCHAMPUS, necessary
to perform the review functions required by this paragraph.
Additionally, all participating hospitals shall provide CHAMPUS
beneficiaries, upon admission, with information about the admission and
quality review system including their appeal rights. A hospital which
does not cooperate in this activity shall be subject to termination as a
CHAMPUS-authorized provider.
(1) Documentation that the beneficiary has received the required
information about the CHAMPUS PRO program must be maintained in the same
manner as is the notice required for the Medicare program by 42 CFR
466.78(b).
(2) The physician acknowledgment required for Medicare under 42 CFR
412.46 is also required for CHAMPUS as a condition for payment and may
be satisfied by the same statement as required for Medicare, with
substitution or addition of ``CHAMPUS'' when the word ``Medicare'' is
used.
(3) Participating hospitals must execute a memorandum of
understanding with the PRO providing appropriate procedures for
implementation of the PRO program.
(4) Participating hospitals may not charge a CHAMPUS beneficiary for
inpatient hospital services excluded on the basis of Sec. 199.4(g)(1)
(not medically necessary), Sec. 199.4(g)(3) (inappropriate level), or
Sec. 199.4(g)(7) (custodial care) unless all of the conditions
established by 42 CFR 412.42(c) with respect to Medicare beneficiaries
have been met with respect to the CHAMPUS beneficiary. In such cases in
which the patient requests a PRO review while the patient is still an
inpatient in the hospital, the hospital shall provide to the PRO the
records required for the review by the close of business of the day the
patient requests review, if such request was made before noon. If the
hospital fails to provide the records by the close of business, that day
and any subsequent working day during which the hospital continues to
fail to provide the records shall not be counted for purposes of the
two-day period of 42 CFR 412.42(c)(3)(ii).
(d) Areas of review--(1) Admissions. The following areas shall be
subject to review to determine whether inpatient care was medically
appropriate and necessary, was delivered in the most appropriate setting
and met acceptable standards of quality. This review may
[[Page 318]]
include preadmission or prepayment review when appropriate.
(i) Transfers of CHAMPUS beneficiaries from a hospital or hospital
unit subject to the CHAMPUS DRG-based payment system to another hospital
or hospital unit.
(ii) CHAMPUS admissions to a hospital or hospital unit subject to
the CHAMPUS DRG-based payment system which occur within a certain period
(specified by OCHAMPUS) of discharge from a hospital or hospital unit
subject to the CHAMPUS DRG-based payment system.
(iii) A random sample of other CHAMPUS admissions for each hospital
subject to the CHAMPUS DRG-based payment system.
(iv) CHAMPUS admissions in any DRGs which have been specifically
identified by OCHAMPUS for review or which are under review for any
other reason.
(2) DRG validation. The review organization responsible for quality
of care reviews shall be responsible for ensuring that the diagnostic
and procedural information reported by hospitals on CHAMPUS claims which
is used by the fiscal intermediary to assign claims to DRGs is correct
and matches the information contained in the medical records. In order
to accomplish this, the following review activities shall be done.
(i) Perform DRG validation reviews of each case under review.
(ii) Review of claim adjustments submitted by hospitals which result
in the assignment of a higher weighted DRG.
(iii) Review for physician's acknowledgement of annual receipt of
the penalty statement as contained in the Medicare regulation at 42 CFR
412.46.
(iv) Review of a sample of claims for each hospital reimbursed under
the CHAMPUS DRG-based payment system. Sample size shall be determined
based upon the volume of claims submitted.
(3) Outlier review. Claims which qualify for additional payment as a
long-stay outlier or as a cost-outlier shall be subject to review to
ensure that the additional days or costs were medically necessary and
appropriate and met all other requirements for CHAMPUS coverage. In
addition, claims which qualify as short-stay outliers shall be reviewed
to ensure that the admission was medically necessary and appropriate and
that the discharge was not premature.
(4) Procedure review. Claims for procedures identified by OCHAMPUS
as subject to a pattern of abuse shall be the subject of intensified
quality assurance review.
(5) Other review. Any other cases or types of cases identified by
OCHAMPUS shall be subject to focused review.
(e) Actions as a result of review--(1) Findings related to
individual claims. If it is determined, based upon information obtained
during reviews, that a hospital has misrepresented admission, discharge,
or billing information, or is found to have quality of care defects, or
has taken an action that results in the unnecessary admissions of an
individual entitled to benefits, unnecessary multiple admission of an
individual, or other inappropriate medical or other practices with
respect to beneficiaries or billing for services furnished to
beneficiaries, the PRO, in conjunction with the fiscal intermediary,
shall, as appropriate:
(i) Deny payment for or recoup (in whole or in part) any amount
claimed or paid for the inpatient hospital and professional services
related to such determination.
(ii) Require the hospital to take other corrective action necessary
to prevent or correct the inappropriate practice.
(iii) Advise the provider and beneficiary of appeal rights, as
required by Sec. 199.10 of this part.
(iv) Notify OCHAMPUS of all such actions.
(2) Findings related to a pattern of inappropriate practices. In all
cases where a pattern of inappropriate admissions and billing practices
that have the effect of circumventing the CHAMPUS DRG-based payment
system is identified, OCHAMPUS shall be notified of the hospital and
practice involved.
(3) Revision of coding relating to DRG validation. The following
provisions apply in connection with the DRG validation process set forth
in paragraph (d)(2) of this section.
[[Page 319]]
(i) If the diagnostic and procedural information in the patient's
medical record is found to be inconsistent with the hospital's coding or
DRG assignment, the hospital's coding on the CHAMPUS claim will be
appropriately changed and payments recalculated on the basis of the
appropriate DRG assignment.
(ii) If the information stipulated under paragraph (d)(2) of this
section is found not to be correct, the PRO will change the coding and
assign the appropriate DRG on the basis of the changed coding.
(f) Special procedures in connection with certain types of health
care services or certain types of review activities--(1) In general.
Many provisions of this section are directed to the context of services
covered by the CHAMPUS DRG-based payment system. This section, however,
is also applicable to other services. In addition, many provisions of
this section relate to the context of peer review activities performed
by Peer Review Organizations whose sole functions for CHAMPUS relate to
the Quality and Utilization Review Peer Review Organization program.
However, it also applies to review activities conducted by contractors
who have responsibilities broader than those related to the quality and
utilization review program. Paragraph (f) of this section authorizes
certain special procedures that will apply in connection with such
services and such review activities.
(2) Services not covered by the DRG-based payment system. In
implementing the quality and utilization review program in the context
of services not covered by the DRG-based payment system, the Director,
OCHAMPUS may establish procedures, appropriate to the types of services
being reviewed, substantively comparable to services covered by the DRG-
based payment system regarding obligations of providers to cooperate in
the quality and utilization review program, authority to require
appropriate corrective actions and other procedures. The Director,
OCHAMPUS may also establish such special, substantively comparable
procedures in connection with review of health care services which,
although covered by the DRG-based payment method, are also affected by
some other special circumstances concerning payment method, nature of
care, or other potential utilization or quality issue.
(3) Peer review activities by contractors also performing other
administration or management functions--(i) Sole-function PRO versus
multi-function PRO. In all cases, peer review activities under the
Quality and Utilization Review Peer Review Organization program are
carried out by physicians and other qualified health care professionals,
usually under contract with OCHAMPUS. In some cases, the Peer Review
Organization contractor's only functions are pursuant to the quality and
utilization review program. In paragraph (f)(3) of this section, this
type of contractor is referred to as a ``sole function PRO.'' In other
cases, the Peer Review Organization contractor is also performing other
functions in connection with the administration and management of
CHAMPUS. In paragraph (f)(3) of this section, this type of contractor is
referred to as a ``multi-function PRO.'' As an example of the latter
type, managed care contractors may perform a wide range of functions
regarding management of the delivery and financing of health care
services under CHAMPUS, including but not limited to functions under the
Quality and Utilization Review Peer Review Organization program.
(ii) Special rules and procedures. With respect to multi-function
PROs, the Director, OCHAMPUS may establish special procedures to assure
the independence of the Quality and Utilization Review Peer Review
Organization program and otherwise advance the objectives of the
program. These special rules and procedures include, but are not limited
to, the following:
(A) A reconsidered determination that would be final in cases
involving sole-function PROs under paragraph (i)(2) of this section will
not be final in connection with multi-function PROs. Rather, in such
cases (other than any case which is appealable under paragraph (i)(3) of
this section), an opportunity for a second reconsideration shall be
provided. The second reconsideration will be provided by OCHAMPUS or
another contractor
[[Page 320]]
independent of the multi-function PRO that performed the review. The
second reconsideration may not be further appealed by the provider.
(B) Procedures established by paragraphs (g) through (m) of this
section shall not apply to any action of a multi-function PRO (or
employee or other person or entity affiliated with the PRO) carried out
in performance of functions other than functions under this section.
(g) Procedures regarding initial determinations. The CHAMPUS PROs
shall establish and follow procedures for initial determinations that
are substantively the same or comparable to the procedures applicable to
Medicare under 42 CFR 466.83 to 466.104. In addition, these procedures
shall provide that a PRO's determination that an admission is medically
necessary is not a guarantee of payment by CHAMPUS; normal CHAMPUS
benefit and procedural coverage requirements must also be applied.
(h) Procedures regarding reconsiderations. The CHAMPUS PROs shall
establish and follow procedures for reconsiderations that are
substantively the same or comparable to the procedures applicable to
reconsiderations under Medicare pursuant to 42 CFR 473.15 to 473.34,
except that the time limit for requesting reconsideration (see 42 CFR
473.20(a)(1)) shall be 90 days. A PRO reconsidered determination is
final and binding upon all parties to the reconsideration except to the
extent of any further appeal pursuant to paragraph (i) of this section.
(i) Appeals and hearings. (1) Beneficiaries may appeal a PRO
reconsideration determination of OCHAMPUS and obtain a hearing on such
appeal to the extent allowed and under the procedures set forth in Sec.
199.10(d).
(2) Except as provided in paragraph (i)(3), a PRO reconsidered
determination may not be further appealed by a provider.
(3) A provider may appeal a PRO reconsideration determination to
OCHAMPUS and obtain a hearing on such appeal to the extent allowed under
the procedures set forth in Sec. 199.10(d) if it is a determination
pursuant to Sec. 199.4(h) that the provider knew or could reasonably
have been expected to know that the services were excludable.
(4) For purposes of the hearing process, a PRO reconsidered
determination shall be considered as the procedural equivalent of a
formal review determination under Sec. 199.10, unless revised at the
initiative of the Director, OCHAMPUS prior to a hearing on the appeal,
in which case the revised determination shall be considered as the
procedural equivalent of a formal review determination under Sec.
199.10.
(5) The provisions of Sec. 199.10(e) concerning final action shall
apply to hearings cases.
(j) Acquisition, protection and disclosure of peer review
information. The provisions of 42 CFR part 476, except Sec. 476.108,
shall be applicable to the CHAMPUS PRO program as they are to the
Medicare PRO program.
(k) Limited immunity from liability for participants in PRO program.
The provisions of section 1157 of the Social Security Act (42 U.S.C.
1320c-6) are applicable to the CHAMPUS PRO program in the same manner as
they apply to the Medicare PRO program. Section 1102(g) of title 10,
United States Code also applies to the CHAMPUS PRO program.
(l) Additional provision regarding confidentiality of records--(1)
General rule. The provisions of 10 U.S.C. 1102 regarding the
confidentiality of medical quality assurance records shall apply to the
activities of the CHAMPUS PRO program as they do to the activities of
the external civilian PRO program that reviews medical care provided in
military hospitals.
(2) Specific applications. (i) Records concerning PRO deliberations
are generally nondisclosable quality assurance records under 10 U.S.C.
1102.
(ii) Initial denial determinations by PROs pursuant to paragraph (g)
of this section (concerning medical necessity determinations, DRG
validation actions, etc.) and subsequent decisions regarding those
determinations are not nondisclosable quality assurance records under 10
U.S.C. 1102.
(iii) Information the subject of mandatory PRO disclosure under 42
CFR part 476 is not a nondisclosable quality assurance record under 10
U.S.C. 1102.
(m) Obligations, sanctions and procedures. (1) The provisions of 42
CFR
[[Page 321]]
1004.1-1004.80 shall apply to the CHAMPUS PRO program as they do the
Medicare PRO program, except that the functions specified in those
sections for the Office of Inspector General of the Department of Health
and Human Services shall be the responsibility of OCHAMPUS.
(2) The provisions of 42 U.S.C. section 1395ww(f)(2) concerning
circumvention by any hospital of the applicable payment methods for
inpatient services shall apply to CHAMPUS payment methods as they do to
Medicare payment methods.
(3) The Director, or a designee, of CHAMPUS shall determine whether
to impose a sanction pursuant to paragraphs (m)(1) and (m)(2) of this
section. Providers may appeal adverse sanctions decisions under the
procedures set forth in Sec. 199.10(d).
(n) Authority to integrate CHAMPUS PRO and military medical
treatment facility utilization review activities. (1) In the case of a
military medical treatment facility (MTF) that has established
utilization review requirements similar to those under the CHAMPUS PRO
program, the contractor carrying out this function may, at the request
of the MTF, utilize procedures comparable to the CHAMPUS PRO program
procedures to render determinations or recommendations with respect to
utilization review requirements.
(2) In any case in which such a contractor has comparable
responsibility and authority regarding utilization review in both an MTF
(or MTFs) and CHAMPUS, determinations as to medical necessity in
connection with services from an MTF or CHAMPUS-authorized provider may
be consolidated.
(3) In any case in which an MTF reserves authority to separate an
MTF determination on medical necessity from a CHAMPUS PRO program
determination on medical necessity, the MTF determination is not binding
on CHAMPUS.
[55 FR 625, Jan. 8, 1990, as amended at 58 FR 58961, Nov. 5, 1993; 60 FR
52095, Oct. 5, 1995; 63 FR 48447, Sept. 10, 1998; 66 FR 40608, Aug. 3,
2001; 67 FR 42721, June 25, 2002; 68 FR 23033, Apr. 30, 2003; 68 FR
32363, May 30, 2003; 68 FR 44881, July 31, 2003; 70 FR 19266, Apr. 13,
2005; 81 FR 61098, Sept. 2, 2016]
Sec. 199.16 Supplemental Health Care Program for active duty members.
(a) Purpose and applicability. (1) The purpose of this section is to
implement, with respect to health care services provided under the
supplemental health care program for active duty members of the
uniformed services, the provision of 10 U.S.C. 1074(c). This section of
law authorizes DoD to establish for the supplemental care program the
same payment rules, subject to appropriate modifications, as apply under
CHAMPUS.
(2) This section applies to the program, known as the supplemental
care program, which provides for the payment by the uniformed services
to private sector health care providers for health care services
provided to active duty members of the uniformed services. Although not
part of CHAMPUS, the supplemental care program is similar to CHAMPUS in
that it is a program for the uniformed services to purchase civilian
health care services for active duty members. For this reason, the
Director, OCHAMPUS assists the uniformed services in the administration
of the supplemental care program.
(3) This section applies to all health care services covered by the
CHAMPUS. For purposes of this section, health care services ordered by a
military treatment facility (MTF) provider for an MTF patient (who is
not an active duty member) for whom the MTF provider maintains
responsibility are also covered by the supplemental care program and
subject to the requirements of this section.
(b) Obligation of providers concerning payment for supplemental
health care for active duty members--(1) Hospitals covered by DRG-based
payment system. For a hospital covered by the CHAMPUS DRG-based payment
system to maintain its status as an authorized provider for CHAMPUS
pursuant to Sec. 199.6, that hospital must also be a participating
provider for purposes of the supplemental care program. As a
participating provider, each hospital must accept the DRG-based payment
system amount determined pursuant to Sec. 199.14 as payment in full for
the hospital services covered by the system. The failure of any hospital
to comply with this obligation subjects that hospital
[[Page 322]]
to exclusion as a CHAMPUS-authorized provider.
(2) Other participating providers. For any institutional or
individual provider, other than those described in paragraph (b)(1) of
this section that is a participating provider, the provider must also be
a participating provider for purposes of the supplemental care program.
The provider must accept the CHAMPUS allowable amount determined
pursuant to Sec. 199.14 as payment in full for the hospital services
covered by the system. The failure of any provider to comply with this
obligation subjects the provider to exclusion as a participating
provider.
(c) General rule for payment and administration. Subject to the
special rules and procedures in paragraph (d) of this section and the
waiver authority in paragraph (e) of this section, as a general rule the
provisions of Sec. 199.14 shall govern payment and administration of
claims under the supplemental care program as they do claims under
CHAMPUS. To the extent necessary to interpret or implement the
provisions of Sec. 199.14, related provisions of this part shall also
be applicable.
(d) Special rules and procedure. As exceptions to the general rule
in paragraph (c) of this section, the special rules and procedures in
this section shall govern payment and administration of claims under the
supplemental care program. These special rules and procedures are
subject to the TRICARE Prime Remote program for active duty service
members set forth in paragraph (e) of this section and the waiver
authority of paragraph (f) of this section.
(1) There is no patient cost sharing under the supplemental care
program. All amounts due to be paid to the provider shall be paid by the
program.
(2) Preauthorization by the Uniformed Services of each service is
required for the supplemental care program except for services in cases
of medical emergency (for which the definition in Sec. 199.2 shall
apply) or in cases governed by the TRICARE Prime Remote program for
active duty service members set forth in paragraph (e) of this section.
It is the responsibility of the active duty members to obtain
preauthorization for each service. With respect to each emergency
inpatient admission, after such time as the emergency condition is
addressed, authorization for any proposed continued stay must be
obtained within two working days of admission.
(3) With respect to the filing of claims and similar administrative
matters for which this part refers to activities of the CHAMPUS fiscal
intermediaries, for purposes of the supplemental care program,
responsibilities for claims processing, payment and some other
administrative matters may be assigned by the Director, OCHAMPUS to the
same fiscal intermediaries, other contractor, or to the nearest military
medical treatment facility or medical claims office.
(4) The annual cost pass-throughs for capital and direct medical
education costs that are available under the CHAMPUS DRG-based payment
system are also available, upon request, under the supplemental care
program. To obtain payment include the number of active duty bed days as
a separate line item on the annual request to the CHAMPUS fiscal
intermediaries.
(5) For providers other than participating providers, the Director,
OCHAMPUS may authorize payment in excess of CHAMPUS allowable amounts.
No provider may bill an active duty member any amount in excess of the
CHAMPUS allowable amount.
(e) TRICARE Prime Remote for Active Duty Members--(1) General. The
TRICARE Prime Remote (TPR) program is available for certain active duty
members of the Uniformed Services assigned to remote locations in the
United States and the District of Columbia who are entitled to coverage
of medical care, and the standards for timely access to such care,
outside a military treatment facility that are comparable to coverage
for medical care and standards for timely access to such care as exist
under TRICARE Prime under Sec. 199.17. Those active duty members who
are eligible under the provisions of 10 U.S.C. 1074(c)(3) and who enroll
in the TRICARE Prime Remote program, may not be required to receive
routine primary medical care at a military medical treatment facility.
[[Page 323]]
(2) Eligibility. To receive health care services under the TRICARE
Prime Remote program, an individual must be an active duty member of the
Uniformed Services on orders for more than thirty consecutive days who
meet the following requirements:
(i) Has a permanent duty assignment that is greater than fifty miles
or approximately one hour drive from a military treatment facility or
military clinic designated as adequate to provide the needed primary
care services to the active duty service member; and
(ii) Pursuant to the assignment of such duty, resides at a location
that is greater than fifty miles or approximately one hour from a
military medical treatment facility or military clinic designated as
adequate to provide the needed primary care services to the active duty
service member.
(3) Enrollment. An active duty service member eligible for the
TRICARE Prime Remote program must enroll in the program. If an eligible
active duty member does not enroll in the TRICARE Prime Remote program,
the member shall receive health care services provide under the
supplemental health program subject to all requirements of this section
without application of the provisions of paragraph (e) of this section.
(4) Preauthorization. If a TRICARE Prime network under Sec. 199.17
exists in the remote location, the TRICARE Prime Remote enrolled active
duty member will select or be assigned a primary care manager. In the
absence of a TRICARE primary care manager in the remote location and if
the active duty member is not assigned to a military primary care
manager based on fitness for duty requirements, the TRICARE Prime Remote
enrolled active duty member may use a local TRICARE authorized provider
for primary health care services without preauthorization. Any referral
for specialty care will require the TRICARE Prime Remote enrolled active
duty member to obtain preauthorization for such services.
(f) Waiver authority. With the exception of statutory requirements,
any restrictions or limitations pursuant to the general rule in
paragraph (c) of this section, and special rules and procedures in
paragraph (d) of this section, may be waived by the Director, OCHAMPUS,
at the request of an authorized official of the uniformed service
concerned, based on a determination that such waiver is necessary to
assure adequate availability of health care services to active duty
members.
(g) Authorities. (1) The Uniformed Services may establish additional
procedures, consistent with this part, for the effective administration
of the supplemental care program in their respective services.
(2) The Assistant Secretary of Defense for Health Affairs is
responsible for the overall policy direction of the supplemental care
program and the administration of this part.
(3) The Director, OCHAMPUS shall issue procedural requirements for
the implementation of this section, including requirement for claims
submission similar to those established by Sec. 199.7.
[56 FR 23801, May 24, 1991, as amended at 58 FR 58963, Nov. 5, 1993; 67
FR 5479, Feb. 6, 2002; 71 FR 50348, Aug. 25, 2006]
Sec. 199.17 TRICARE program.
(a) Establishment. The TRICARE program is established for the
purpose of implementing a comprehensive managed health care program for
the delivery and financing of health care services in the Military
Health System.
(1) Purpose. The TRICARE program implements a number of improvements
primarily through modernized managed care support contracts that include
special arrangements with civilian sector health care providers and
better coordination between military medical treatment facilities (MTFs)
and these civilian providers to deliver an integrated, health care
delivery system that provides beneficiaries with access to high quality
healthcare. Implementation of these improvements, to include enhanced
access, improved health outcomes, increased efficiencies and elimination
of waste, in addition to improving and maintaining operational medical
force readiness, includes adoption of special rules and procedures not
ordinarily followed under CHAMPUS or MTF requirements. This section
establishes those special rules and procedures.
[[Page 324]]
(2) Statutory authority. Many of the provisions of this section are
authorized by statutory authorities other than those which authorize the
usual operation of the CHAMPUS program, especially 10 U.S.C. 1079 and
1086. The TRICARE program also relies upon other available statutory
authorities, including 10 U.S.C. 1075 (TRICARE Select), 10 U.S.C. 1075a
(TRICARE Prime cost sharing), 10 U.S.C. 1095f (referrals and pre-
authorizations under TRICARE Prime), 10 U.S.C. 1099 (health care
enrollment system), 10 U.S.C. 1097 (contracts for medical care for
retirees, dependents and survivors: Alternative delivery of health
care), and 10 U.S.C. 1096 (resource sharing agreements).
(3) Scope of the program. The TRICARE program is applicable to all
the uniformed services. TRICARE Select and TRICARE-for-Life shall be
available in all areas, including overseas as authorized in paragraph
(u) of this section. The geographic availability of TRICARE Prime is
generally limited as provided in this section. The Assistant Secretary
of Defense (Health Affairs) may also authorize modifications to TRICARE
program rules and procedures as may be appropriate to the area involved.
(4) Rules and procedures affected. Much of this section relates to
rules and procedures applicable to the delivery and financing of health
care services provided by civilian providers outside military treatment
facilities. This section provides that certain rules, procedures, rights
and obligations set forth elsewhere in this part (and usually applicable
to CHAMPUS) are different under the TRICARE program. To the extent that
TRICARE program rules, procedures, rights and obligations set forth in
this section are not different from or otherwise in conflict with those
set forth elsewhere in this part as applicable to CHAMPUS, the CHAMPUS
provisions are incorporated into the TRICARE program. In addition, some
rules, procedures, rights and obligations relating to health care
services in military treatment facilities are also different under the
TRICARE program. In such cases, provisions of this section take
precedence and are binding.
(5) Implementation based on local action. The TRICARE program is not
automatically implemented in all respects in all areas where it is
potentially applicable. Therefore, not all provisions of this section
are automatically implemented. Rather, implementation of the TRICARE
program and this section requires an official action by the Director,
Defense Health Agency. Public notice of the initiation of portions of
the TRICARE program will be achieved through appropriate communication
and media methods and by way of an official announcement by the Director
identifying the military medical treatment facility catchment area or
other geographical area covered.
(6) Major features of the TRICARE program. The major features of the
TRICARE program, described in this section, include the following:
(i) Beneficiary categories. Under the TRICARE program, health care
beneficiaries are generally classified into one of several categories:
(A) Active duty members, who are covered by 10 U.S.C. 1074(a).
(B) Active duty family members, who are beneficiaries covered by 10
U.S.C. 1079 (also referred to in this section as ``active duty family
category'').
(C) Retirees and their family members (also referred to in this
section as ``retired category''), who are beneficiaries covered by 10
U.S.C. 1086(c) other than those beneficiaries eligible for Medicare Part
A.
(D) Medicare eligible retirees and Medicare eligible retiree family
members who are beneficiaries covered by 10 U.S.C. 1086(d) as each
become individually eligible for Medicare Part A and enroll in Medicare
Part B.
(E) Military treatment facility (MTF) only beneficiaries are
beneficiaries eligible for health care services in military treatment
facilities, but not eligible for a TRICARE plan covering non-MTF care.
(ii) Health plans available. The major TRICARE health plans are as
follows:
[[Page 325]]
(A) TRICARE Prime. ``TRICARE Prime'' is a health maintenance
organization (HMO)-like program. It generally features use of military
treatment facilities and substantially reduced out-of-pocket costs for
care provided outside MTFs. Beneficiaries generally agree to use
military treatment facilities and designated civilian provider networks
and to follow certain managed care rules and procedures. The primary
purpose of TRICARE Prime is to support the effective operation of an
MTF, which exists to support the medical readiness of the armed forces
and the readiness of medical personnel. TRICARE Prime will be offered in
areas where the Director determines that it is appropriate to support
the effective operation of one or more MTFs.
(B) TRICARE Select. ``TRICARE Select'' is a self-managed, preferred
provider organization (PPO) program. It allows beneficiaries to use the
TRICARE provider civilian network, with reduced out-of-pocket costs
compared to care from non-network providers, as well as military
treatment facilities (where they exist and when space is available).
TRICARE Select enrollees will not have restrictions on their freedom of
choice with respect to authorized health care providers. However, when a
TRICARE Select beneficiary receives services covered under the basic
program from an authorized health care provider who is not part of the
TRICARE provider network that care is covered by TRICARE but is subject
to higher cost sharing amounts for ``out-of-network'' care. Those
amounts are the same as under the basic program under Sec. 199.4.
(C) TRICARE for Life. ``TRICARE for Life'' is the Medicare
wraparound coverage plan under 10 U.S.C. 1086(d). Rules applicable to
this plan are unaffected by this section; they are generally set forth
in Sec. Sec. 199.3 (Eligibility), 199.4 (Basic Program Benefits), and
199.8 (Double Coverage).
(D) TRICARE Standard. ``TRICARE Standard'' generally referred to the
basic CHAMPUS program of benefits under Sec. 199.4. While the law
required termination of TRICARE Standard as a distinct TRICARE plan
December 31, 2017, the CHAMPUS basic program benefits under Sec. 199.4
continues as the baseline of benefits common to the TRICARE Prime and
TRICARE Select plans.
(iii) Comprehensive enrollment system. The TRICARE program includes
a comprehensive enrollment system for all categories of beneficiaries
except TRICARE-for-Life beneficiaries. When eligibility for enrollment
for TRICARE Prime and/or TRICARE Select exists, a beneficiary must
enroll in one of the plans. Refer to paragraph (o) of this section for
TRICARE program enrollment procedures.
(7) Preemption of State laws. (i) Pursuant to 10 U.S.C. 1103 the
Department of Defense has determined that in the administration of 10
U.S.C. chapter 55, preemption of State and local laws relating to health
insurance, prepaid health plans, or other health care delivery or
financing methods is necessary to achieve important Federal interests,
including but not limited to the assurance of uniform national health
programs for military families and the operation of such programs at the
lowest possible cost to the Department of Defense, that have a direct
and substantial effect on the conduct of military affairs and national
security policy of the United States.
(ii) Based on the determination set forth in paragraph (a)(7)(i) of
this section, any State or local law relating to health insurance,
prepaid health plans, or other health care delivery or financing methods
is preempted and does not apply in connection with TRICARE regional
contracts. Any such law, or regulation pursuant to such law, is without
any force or effect, and State or local governments have no legal
authority to enforce them in relation to the TRICARE regional contracts.
(However, the Department of Defense may by contract establish legal
obligations of the part of TRICARE contractors to conform with
requirements similar or identical to requirements of State or local laws
or regulations).
(iii) The preemption of State and local laws set forth in paragraph
(a)(7)(ii) of this section includes State and local laws imposing
premium taxes on health or dental insurance carriers or underwriters or
other plan managers, or similar taxes on such entities.
[[Page 326]]
Such laws are laws relating to health insurance, prepaid health plans,
or other health care delivery or financing methods, within the meaning
of the statutes identified in paragraph (a)(7)(i) of this section.
Preemption, however, does not apply to taxes, fees, or other payments on
net income or profit realized by such entities in the conduct of
business relating to DoD health services contracts, if those taxes, fees
or other payments are applicable to a broad range of business activity.
For purposes of assessing the effect of Federal preemption of State and
local taxes and fees in connection with DoD health and dental services
contracts, interpretations shall be consistent with those applicable to
the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(b) TRICARE Prime and TRICARE Select health plans in general. The
two primary plans for beneficiaries in the active duty family category
and the retired category (which does not include most Medicare-eligible
retirees/dependents) are TRICARE Prime and TRICARE Select. This
paragraph (b) further describes the TRICARE Prime and TRICARE Select
health plans.
(1) TRICARE Prime. TRICARE Prime is a managed care option that
provides enhanced medical services to beneficiaries at reduced cost-
sharing amounts for beneficiaries whose care is managed by a designated
primary care manager and provided by an MTF or network provider. TRICARE
Prime is offered in a location in which an MTF is located (other than a
facility limited to members of the armed forces) that has been
designated by the Director as a Prime Service Area. In addition, where
TRICARE Prime is offered it may be limited to active duty family members
if the Director determines it is not practicable to offer TRICARE Prime
to retired category beneficiaries. TRICARE Prime is not offered in areas
where the Director determines it is impracticable. If TRICARE Prime is
not offered in a geographical area, certain active duty family members
residing in the area may be eligible to enroll in TRICARE Prime Remote
program under paragraph (g) of this section.
(2) TRICARE Select. TRICARE Select is the self-managed option under
which beneficiaries may receive authorized basic program benefits from
any TRICARE authorized provider. The TRICARE Select health care plan
also provides enhanced program benefits to beneficiaries with access to
a preferred-provider network with broad geographic availability within
the United States at reduced out-of-pocket expenses. However, when a
beneficiary receives services from an authorized health care provider
who is not part of the TRICARE provider network, only basic program
benefits (not enhanced Select care) are covered by TRICARE and the
beneficiary is subject to higher cost sharing amounts for ``out-of-
network'' care. Those amounts are the same as under the basic program
under Sec. 199.4.
(c) Eligibility for enrollment in TRICARE Prime and TRICARE Select.
Beneficiaries in the active duty family category and the retired
category are eligible to enroll in TRICARE Prime and/or TRICARE Select
as outlined in this paragraph (c). A retiree or retiree family member
who becomes eligible for Medicare Part A is not eligible to enroll in
TRICARE Select; however, as provided in this paragraph (c), some
Medicare eligible retirees/family members may be allowed to enroll in
TRICARE Prime where available. In general, when a retiree or retiree
family member becomes individually eligible for Medicare Part A and
enrolls in Medicare Part B, he/she is automatically eligible for
TRICARE-for-Life and is required to enroll in the Defense Enrollment
Eligibility Reporting System (DEERS) to verify eligibility. Further,
some rules and procedures are different for dependents of active duty
members and retirees, dependents, and survivors.
(1) Active duty members. Active duty members are required to enroll
in Prime where it is offered. Active duty members shall have first
priority for enrollment in Prime.
(2) Dependents of active duty members. Beneficiaries in the active
duty family member category are eligible to enroll in Prime (where
offered) or Select.
(3) Survivors of deceased members. (i) The surviving spouse of a
member who dies while on active duty for a period of
[[Page 327]]
more than 30 days is eligible to enroll in Prime (where offered) or
Select for a 3 year period beginning on the date of the member's death
under the same rules and provisions as dependents of active duty
members.
(ii) A dependent child or unmarried person (as described in Sec.
199.3(b)(2)(ii) or (iv)) of a member who dies while on active duty for a
period of more than 30 days whose death occurred on or after October 7,
2001, is eligible to enroll in Prime (where offered) or Select and is
subject to the same rules and provisions of dependents of active duty
members for a period of three years from the date the active duty
sponsor dies or until the surviving eligible dependent:
(A) Attains 21 years of age; or
(B) Attains 23 years of age or ceases to pursue a full-time course
of study prior to attaining 23 years of age, if, at 21 years of age, the
eligible surviving dependent 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 Secretary of Defense and
was, at the time of the sponsor's death, in fact dependent on the member
for over one-half of such dependent's support.
(4) Retirees, dependents of retirees, and survivors (other than
survivors of deceased members covered under paragraph (c)(3) of this
section). All retirees, dependents of retirees, and survivors who are
not eligible for Medicare Part A are eligible to enroll in Select.
Additionally, retirees, dependents of retirees, and survivors who are
not eligible for Medicare Part A based on age are also eligible to
enroll in TRICARE Prime in locations where it is offered and where an
MTF has, in the judgment of the Director, a significant number of health
care providers, including specialty care providers, and sufficient
capability to support the efficient operation of TRICARE Prime for
projected retired beneficiary enrollees in that location.
(d) Health benefits under TRICARE Prime--(1) Military treatment
facility (MTF) care--(i) In general. All participants in Prime are
eligible to receive care in military treatment facilities. Participants
in Prime will be given priority for such care over other beneficiaries.
Among the following beneficiary groups, access priority for care in
military treatment facilities where TRICARE is implemented as follows:
(A) Active duty service members;
(B) Active duty service members' dependents and survivors of service
members who died on active duty, who are enrolled in TRICARE Prime;
(C) Retirees, their dependents and survivors, who are enrolled in
TRICARE Prime;
(D) Active duty service members' dependents and survivors of
deceased members, who are not enrolled in TRICARE Prime; and
(E) Retirees, their dependents and survivors who are not enrolled in
TRICARE Prime. For purposes of this paragraph (d)(1), survivors of
members who died while on active duty are considered as among dependents
of active duty service members.
(ii) Special provisions. Enrollment in Prime does not affect access
priority for care in military treatment facilities for several
miscellaneous beneficiary groups and special circumstances. Those
include Secretarial designees, NATO and other foreign military personnel
and dependents authorized care through international agreements,
civilian employees under workers' compensation programs or under safety
programs, members on the Temporary Disability Retired List (for
statutorily required periodic medical examinations), members of the
reserve components not on active duty (for covered medical services),
military prisoners, active duty dependents unable to enroll in Prime and
temporarily away from place of residence, and others as designated by
the Assistant Secretary of Defense (Health Affairs). Additional
exceptions to the normal Prime enrollment access priority rules may be
granted for other categories of individuals, eligible for treatment in
the MTF, whose access to care is necessary to provide an adequate
clinical case mix to support graduate medical education programs or
readiness-related medical skills sustainment activities, to the extent
approved by the ASD(HA).
(2) Non-MTF care for active duty members. Under Prime, non-MTF care
needed by active duty members continues
[[Page 328]]
to be arranged under the supplemental care program and subject to the
rules and procedures of that program, including those set forth in Sec.
199.16.
(3) Civilian sector Prime benefits. Health benefits for Prime
enrollees for care received from civilian providers are those under
Sec. 199.4 and the additional benefits identified in paragraph (f) of
this section.
(e) Health benefits under the TRICARE Select plan--(1) Civilian
sector care. The health benefits under TRICARE Select for enrolled
beneficiaries received from civilian providers are those under Sec.
199.4, and, in addition, those in paragraph (f) of this section when
received from a civilian network provider.
(2) Military treatment facility (MTF) care. All TRICARE Select
enrolled beneficiaries continue to be eligible to receive care in
military treatment facilities on a space available basis.
(f) Benefits under TRICARE Prime and TRICARE Select--(1) In general.
Except as specifically provided or authorized by this section, all
benefits provided, and benefit limitations established, pursuant to this
part, shall apply to TRICARE Prime and TRICARE Select.
(2) Preventive care services. Certain preventive care services not
normally provided as part of basic program benefits under Sec. 199.4
are covered benefits when provided to Prime or Select enrollees by
providers in the civilian provider network. Such additional services are
authorized under 10 U.S.C. 1097, including preventive care services not
part of the entitlement under 10 U.S.C. 1074d and services that would
otherwise be excluded under 10 U.S.C. 1079(a)(10). Other authority for
such additional services includes section 706 of the National Defense
Authorization Act for Fiscal Year 2017. The specific set of such
services shall be established by the Director and announced annually
before the open season enrollment period. Standards for preventive care
services shall be developed based on guidelines from the U.S. Department
of Health and Human Services. Such standards shall establish a specific
schedule, including frequency or age specifications for services that
may include, but are not limited to:
(i) Laboratory and imaging tests, including blood lead, rubella,
cholesterol, fecal occult blood testing, and mammography;
(ii) Cancer screenings (including cervical, breast, lung, prostate,
and colon cancer screenings);
(iii) Immunizations;
(iv) Periodic health promotion and disease prevention exams;
(v) Blood pressure screening;
(vi) Hearing exams;
(vii) Sigmoidoscopy or colonoscopy;
(viii) Serologic screening; and
(ix) Appropriate education and counseling services. The exact
services offered shall be established under uniform standards
established by the Director.
(3) Treatment of obesity. Under the authority of 10 U.S.C. 1097 and
sections 706 and 729 of the National Defense Authorization Act for
Fiscal Year 2017, notwithstanding 10 U.S.C. 1079(a)(10), treatment of
obesity is covered under TRICARE Prime and TRICARE Select even if it is
the sole or major condition treated. Such services must be provided by a
TRICARE network provider and be medically necessary and appropriate in
the context of the particular patient's treatment.
(4) High value services. Under the authority of 10 U.S.C. 1097 and
other authority, including sections 706 and 729 of the NDAA-17, for
purposes of improving population-based health outcomes and incentivizing
medical intervention programs to address chronic diseases and other
conditions and healthy lifestyle interventions, the Director may waive
or reduce cost sharing requirements for TRICARE Prime and TRICARE Select
enrollees for care received from network providers for certain health
care services designated for this purpose. The specific services
designated for this purpose will be those the Director determines
provide especially high value in terms of better health outcomes. The
specific services affected for any plan year will be announced by the
Director prior to the open season enrollment period for that plan year.
Services affected by actions of the Director under this paragraph (f)(4)
may be associated with actions taken for high value medications under
Sec. 199.21(j)(3) for select pharmaceutical agents to be cost-shared at
a reduced or zero dollar rate.
[[Page 329]]
(5) Other services. In addition to services provided pursuant to
paragraphs (f)(2) through (4) of this section, other benefit
enhancements may be added and other benefit restrictions may be waived
or relaxed in connection with health care services provided to TRICARE
Prime and TRICARE Select enrollees. Any such other enhancements or
changes must be approved by the Director based on uniform standards.
(g) TRICARE Prime Remote for Active Duty Family Members--(1) In
general. In geographic areas in which TRICARE Prime is not offered and
in which eligible family members reside, there is offered under 10
U.S.C. 1079(p) TRICARE Prime Remote for Active Duty Family Members as an
enrollment option. TRICARE Prime Remote for Active Duty Family Members
(TPRADFM) will generally follow the rules and procedures of TRICARE
Prime, except as provided in this paragraph (g) and otherwise except to
the extent the Director determines them to be infeasible because of the
remote area.
(2) Active duty family member. For purposes of this paragraph (g),
the term ``active duty family member'' means one of the following
dependents of an active duty member of the Uniformed Services:
(i) Spouse, child, or unmarried person, as defined in Sec.
199.3(b)(2)(i), (ii), or (iv);
(ii) For a 3-year period, the surviving spouse of a member who dies
while on active duty for a period of more than 30 days whose death
occurred on or after October 7, 2001; and
(iii) The surviving dependent child or unmarried person, as defined
in Sec. 199.3(b)(2)(ii) or (iv), of a member who dies while on active
duty for a period of more than 30 days whose death occurred on or after
October 7, 2001. Active duty family member status is for a period of 3
years from the date the active duty sponsor dies or until the surviving
eligible dependent:
(A) Attains 21 years of age; or
(B) Attains 23 years of age or ceases to pursue a full-time course
of study prior to attaining 23 years of age, if, at 21 years of age, the
eligible surviving dependent 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 Secretary of Defense and
was, at the time of the sponsor's death, in fact dependent on the member
for over one-half of such dependent's support.
(3) Eligibility. (i) An active duty family member is eligible for
TRICARE Prime Remote for Active Duty Family Members if he or she is
eligible for CHAMPUS and, on or after December 2, 2003, meets the
criteria of paragraphs (g)(3)(i)(A) and (B) or paragraph (g)(3)(i)(C) of
this section or on or after October 7, 2001, meets the criteria of
paragraph (g)(3)(i)(D) or (E) of this section:
(A) The family member's active duty sponsor has been assigned
permanent duty as a recruiter; as an instructor at an educational
institution, an administrator of a program, or to provide administrative
services in support of a program of instruction for the Reserve
Officers' Training Corps; as a full-time adviser to a unit of a reserve
component; or any other permanent duty designated by the Director that
the Director determines is more than 50 miles, or approximately one hour
driving time, from the nearest military treatment facility that is
adequate to provide care.
(B) The family members and active duty sponsor, pursuant to the
assignment of duty described in paragraph (g)(3)(i)(A) of this section,
reside at a location designated by the Director, that the Director
determines is more than 50 miles, or approximately one hour driving
time, from the nearest military medical treatment facility adequate to
provide care.
(C) The family member, having resided together with the active duty
sponsor while the sponsor served in an assignment described in paragraph
(g)(3)(i)(A) of this section, continues to reside at the same location
after the sponsor relocates without the family member pursuant to orders
for a permanent change of duty station, and the orders do not authorize
dependents to accompany the sponsor to the new duty station at the
expense of the United States.
(D) For a 3 year period, the surviving spouse of a member who dies
while on
[[Page 330]]
active duty for a period of more than 30 days whose death occurred on or
after October 7, 2001.
(E) The surviving dependent child or unmarried person as defined in
Sec. 199.3(b)(2)(ii) or (iv), of a member who dies while on active duty
for a period of more than 30 days whose death occurred on or after
October 7, 2001, for three years from the date the active duty sponsor
dies or until the surviving eligible dependent:
(1) Attains 21 years of age; or
(2) Attains 23 years of age or ceases to pursue a full-time course
of study prior to attaining 23 years of age, if, at 21 years of age, the
eligible surviving dependent 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 Secretary of Defense and
was, at the time of the sponsor's death, in fact dependent on the member
for over one-half of such dependent's support.
(ii) A family member who is a dependent of a reserve component
member is eligible for TRICARE Prime Remote for Active Duty Family
Members if he or she is eligible for CHAMPUS and meets all of the
following additional criteria:
(A) The reserve component member has been ordered to active duty for
a period of more than 30 days.
(B) The family member resides with the member.
(C) The Director, determines the residence of the reserve component
member is more than 50 miles, or approximately one hour driving time,
from the nearest military medical treatment facility that is adequate to
provide care.
(D) ``Resides with'' is defined as the TRICARE Prime Remote
residence address at which the family resides with the activated
reservist upon activation.
(4) Enrollment. TRICARE Prime Remote for Active Duty Family Members
requires enrollment under procedures set forth in paragraph (o) of this
section or as otherwise established by the Director.
(5) Health care management requirements under TRICARE Prime Remote
for Active Duty Family Members. The additional health care management
requirements applicable to Prime enrollees under paragraph (n) of this
section are applicable under TRICARE Prime Remote for Active Duty Family
Members unless the Director determines they are infeasible because of
the particular remote location. Enrollees will be given notice of the
applicable management requirements in their remote location.
(6) Cost sharing. Beneficiary cost sharing requirements under
TRICARE Prime Remote for Active Duty Family Members are the same as
those under TRICARE Prime under paragraph (m) of this section, except
that the higher point-of-service option cost sharing and deductible
shall not apply to routine primary health care services in cases in
which, because of the remote location, the beneficiary is not assigned a
primary care manager or the Director determines that care from a TRICARE
network provider is not available within the TRICARE access standards
under paragraph (p)(5) of this section. The higher point-of-service
option cost sharing and deductible shall apply to specialty health care
services received by any TRICARE Prime Remote for Active Duty Family
Members enrollee unless an appropriate referral/preauthorization is
obtained as required by paragraph (n) of this section under TRICARE
Prime. In the case of pharmacy services under Sec. 199.21, where the
Director determines that no TRICARE network retail pharmacy has been
established within a reasonable distance of the residence of the TRICARE
Prime Remote for Active Duty Family Members enrollee, cost sharing
applicable to TRICARE network retail pharmacies will be applicable to
all CHAMPUS eligible pharmacies in the remote area.
(h) Resource sharing agreements. Under the TRICARE program, any
military medical treatment facility (MTF) commander may establish
resource sharing agreements with the applicable managed care support
contractor for the purpose of providing for the sharing of resources
between the two parties. Internal resource sharing and external
[[Page 331]]
resource sharing agreements are authorized. The provisions of this
paragraph (h) shall apply to resource sharing agreements under the
TRICARE program.
(1) In connection with internal resource sharing agreements,
beneficiary cost sharing requirements shall be the same as those
applicable to health care services provided in facilities of the
uniformed services.
(2) Under internal resource sharing agreements, the double coverage
requirements of Sec. 199.8 shall be replaced by the Third Party
Collection procedures of 32 CFR part 220, to the extent permissible
under such part. In such a case, payments made to a resource sharing
agreement provider through the TRICARE managed care support contractor
shall be deemed to be payments by the MTF concerned.
(3) Under internal or external resource sharing agreements, the
commander of the MTF concerned may authorize the provision of services,
pursuant to the agreement, to Medicare-eligible beneficiaries, if such
services are not reimbursable by Medicare, and if the commander
determines that this will promote the most cost-effective provision of
services under the TRICARE program.
(4) Under external resource sharing agreements, there is no cost
sharing applicable to services provided by military facility personnel.
Cost sharing for non-MTF institutional and related ancillary charges
shall be as applicable to services provided under TRICARE Prime or
TRICARE Select, as appropriate.
(i) General quality assurance, utilization review, and
preauthorization requirements under the TRICARE program. All quality
assurance, utilization review, and preauthorization requirements for the
basic CHAMPUS program, as set forth in this part (see especially
applicable provisions in Sec. Sec. 199.4 and 199.15), are applicable to
Prime and Select except as provided in this chapter. Pursuant to an
agreement between a military medical treatment facility and TRICARE
managed care support contractor, quality assurance, utilization review,
and preauthorization requirements and procedures applicable to health
care services outside the military medical treatment facility may be
made applicable, in whole or in part, to health care services inside the
military medical treatment facility.
(j) Pharmacy services. Pharmacy services under Prime and Select are
as provided in the Pharmacy Benefits Program (see Sec. 199.21).
(k) Design of cost sharing structures under TRICARE Prime and
TRICARE Select--(1) In general. The design of the cost sharing
structures under TRICARE Prime and TRICARE Select includes several major
factors: beneficiary category (e.g., active duty family member category
or retired category, and there are some special rules for survivors of
active duty deceased sponsors and medically retired members and their
dependents); date of initial military affiliation (i.e., before or on or
after January 1, 2018), category of health care service received, and
network or non-network status of the provider.
(2) Categories of health care services. This paragraph (k)(2)
describes the categories of health care services relevant to determining
copayment amounts.
(i) Preventive care visits. These are outpatient visits and related
services described in paragraph (f)(2) of this section. There are no
cost sharing requirements for preventive care listed under Sec. Sec.
199.4(e)(28)(i) through (iv) and 199.17(f)(2). Beneficiaries shall not
be required to pay any portion of the cost of these preventive services
even if the beneficiary has not satisfied any applicable deductible for
that year.
(ii) Primary care outpatient visits. These are outpatient visits,
not occurring in an ER or urgent care center, with the following
provider specialties:
(A) General Practice.
(B) Family Practice.
(C) Internal Medicine.
(D) OB/GYN.
(E) Pediatrics.
(F) Physician's Assistant.
(G) Nurse Practitioner.
(H) Nurse Midwife.
(iii) Specialty care outpatient visits. This category applies to
outpatient care provided by provider specialties other than those listed
under primary care outpatient visits under paragraph
[[Page 332]]
(k)(2)(ii) of this section and not specifically included in one of the
other categories of care (e.g., emergency room visits etc.) under
paragraph (k)(2) of this section. This category also includes partial
hospitalization services, intensive outpatient treatment, and opioid
treatment program services. The per visit fee shall be applied on a per
day basis on days services are received, with the exception of opioid
treatment program services reimbursed in accordance with Sec.
199.14(a)(2)(ix)(A)(3)(i) which per visit fee will apply on a weekly
basis.
(iv) Emergency room visits.
(v) Urgent care center visits.
(vi) Ambulance services. This is for ground ambulance services.
(vii) Ambulatory surgery. This is for facility-based outpatient
ambulatory surgery services.
(viii) Inpatient hospital admissions.
(ix) Skilled nursing facility or rehabilitation facility admissions.
This category includes a residential treatment center, or substance use
disorder rehabilitation facility residential treatment program.
(x) Durable medical equipment, prosthetic devices, and other
authorized supplies.
(xi) Outpatient prescription pharmaceuticals. These are addressed in
Sec. 199.21.
(3) Beneficiary categories further subdivided. For purposes of both
TRICARE Prime and TRICARE Select, enrollment fees and cost sharing by
beneficiary category (e.g., active duty family member category or
retired category) are further differentiated between two groups:
(i) Group A consists of Prime or Select enrollees whose sponsor
originally enlisted or was appointed in a uniformed service before
January 1, 2018.
(ii) Group B consists of Prime or Select enrollees whose sponsor
originally enlisted or was appointed in a uniformed service on or after
January 1, 2018.
(l) Enrollment fees and cost sharing (including deductibles and
catastrophic cap) amounts. This paragraph (l) provides enrollment fees
and cost sharing requirements applicable to TRICARE Prime and TRICARE
Select enrollees.
(1) Enrollment fee and cost sharing under TRICARE Prime. (i) For
Group A enrollees:
(A) There is no enrollment fee for the active duty family member
category.
(B) The retired category enrollment fee in calendar year 2018 is
equal to the Prime enrollment fee for fiscal year 2017, indexed to
calendar year 2018 and thereafter in accordance with 10 U.S.C. 1097. The
Assistant Secretary of Defense (Health Affairs) may exempt survivors of
active duty deceased sponsors and medically retired Uniformed Services
members and their dependents from future increases in enrollment fees.
The Assistant Secretary of Defense (Health Affairs) may also waive the
enrollment fee requirements for Medicare-eligible beneficiaries.
(C) The cost sharing amounts are established annually in connection
with the open season enrollment period. An amount is established for
each category of care identified in paragraph (k)(2) of this section,
taking into account all applicable statutory provisions, including 10
U.S.C. chapter 55. The amount for each category of care may not exceed
the amount for Group B as set forth in 10 U.S.C. 1075a.
(D) The catastrophic cap is $1,000 for active duty families and
$3,000 for retired category families.
(ii) For Group B TRICARE Prime enrollees, the enrollment fee,
catastrophic cap, and cost sharing amounts are as set forth in 10 U.S.C.
1075a. The cost sharing requirements applicable to services not
specifically addressed in the table set forth in 10 U.S.C. 1075a(b)(1)
shall be determined by the Director, DHA.
(iii) For both Group A and Group B, for health care services
obtained by a Prime enrollee but not obtained in accordance with the
rules and procedures of Prime (e.g. failure to obtain a primary care
manager referral when such a referral is required or seeing a non-
network provider when Prime rules require use of a network provider and
one is available) will not be paid under Prime rules but may be covered
by the point-of-service option. For services obtained under the point-
of-service option, the deductible is $300 per person and $600 per
family. The beneficiary cost share is 50 percent of the allowable
[[Page 333]]
charges for inpatient and outpatient care, after the deductible. Point-
of-service charges do not count against the annual catastrophic cap.
(2) Enrollment fee and cost sharing under TRICARE Select. (i) For
Group A enrollees:
(A) The enrollment fee in calendar years 2018 through 2020 is zero
and the catastrophic cap is as provided in 10 U.S.C. 1079 or 1086. The
enrollment fee and catastrophic cap in 2021 and thereafter for certain
beneficiaries in the retired category is as provided in 10 U.S.C.
1075(e), except the enrollment fee and catastrophic cap adjustment shall
not apply to survivors of active duty deceased sponsors and medically
retired Uniformed Services members and their dependents.
(B) The cost sharing amounts for network care for Group A enrollees
are calculated for each category of care described in paragraph (k)(2)
of this section by taking into account all applicable statutory
provisions, including 10 U.S.C. chapter 55, as if TRICARE Extra and
Standard programs were still being implemented. When determined
practicable, including efficiency and effectiveness in administration,
the amounts established are converted to fixed dollar amounts for each
category of care for which a fixed dollar amount is established by 10
U.S.C. 1075. When determined not to be practicable, as in the categories
of care including ambulatory surgery, inpatient admissions, and
inpatient skilled nursing/rehabilitation admissions, the calculated
cost-sharing amounts are not converted to fixed dollar amounts. The
fixed dollar amount for each category is set prospectively for each
calendar year as the amount (rounded down to the nearest dollar amount)
equal to 15% for enrollees in the active duty family beneficiary
category or 20% for enrollees in the retired beneficiary category of the
projected average allowable payment amount for each category of care
during the year, as estimated by the Director. The projected average
allowable payment amount for primary care (including urgent care) and
specialty care outpatient appointments include payments for ancillary
services (e.g., laboratory and radiology services) that are provided in
connection with the respective outpatient visit. As such, there is no
separate cost sharing for these ancillary services.
(C) The cost share for care received from non-network providers is
as provided in Sec. 199.4.
(D) The annual deductible amount is as provided in 10 U.S.C. 1079 or
1086.
(ii) For Group B TRICARE Select enrollees, the enrollment fee,
annual deductible for services received while in an outpatient status,
catastrophic cap., and cost sharing amounts are as provided in 10 U.S.C.
1075 and as consistent with this section. The cost sharing requirements
applicable to services not specifically addressed in 10 U.S.C. 1075
shall be determined by the Director, DHA.
(3) Special cost-sharing rules. (A) There is no separate cost-
sharing applicable to ancillary health care services obtained in
conjunction with an outpatient primary or specialty care visit under
TRICARE Prime or from network providers under TRICARE Select.
(B) Cost-sharing for maternity care services shall be determined in
accordance with Sec. 199.4(e)(16).
(4) Special transition rule for the last quarter of calendar year
2017. In order to transition enrollment fees, deductibles, and
catastrophic caps from a fiscal year basis to a calendar year basis, the
following special rules apply for the last quarter of calendar year
2017:
(A) A Prime enrollee's enrollment fee for the quarter is one-fourth
of the enrollment fee for fiscal year 2017.
(B) The deductible amount and the catastrophic cap amount for fiscal
year 2017 will be applicable to the 15-month period of October 1, 2016
through December 31, 2017.
(m) Limit on out-of-pocket costs under TRICARE Prime and TRICARE
Select. For the purpose of this paragraph (m), out-of-pocket costs means
all payments required of beneficiaries under paragraph (l) of this
section, including enrollment fees, deductibles, and cost-sharing
amounts, with the exception of point-of-service charges. In any case in
which a family reaches their applicable catastrophic cap, all remaining
payments that would have been required of the beneficiary under
paragraph (l) of this section for authorized care, with the exception of
applicable point-of-
[[Page 334]]
service charges pursuant to paragraph (l)(1)(iii) of this section, will
be paid by the program for the remainder of that calendar year.
(n) Additional health care management requirements under TRICARE
Prime. Prime has additional, special health care management requirements
not applicable under TRICARE Select.
(1) Primary care manager. (i) All active duty members and Prime
enrollees will be assigned a primary care manager pursuant to a system
established by the Director, and consistent with the access standards in
paragraph (p)(5)(i) of this section. The primary care manager may be an
individual, physician, a group practice, a clinic, a treatment site, or
other designation. The primary care manager may be part of the MTF or
the Prime civilian provider network. The enrollee will be given the
opportunity to register a preference for primary care manager from a
list of choices provided by the Director. This preference will be
entered on a TRICARE Prime enrollment form or similar document.
Preference requests will be considered, but primary care manager
assignments will be subject to availability under the MTF beneficiary
category priority system under paragraph (d) of this section and subject
to other operational requirements. (ii) Prime enrollees who are
dependents of active duty members in pay grades E-1 through E-4 shall
have priority over other active duty dependents for enrollment with MTF
PCMs, subject to MTF capacity.
(2) Referral and preauthorization requirements. (i) Under TRICARE
Prime there are certain procedures for referral and preauthorization.
(A) For the purpose of this paragraph (n)(2), referral addresses the
issue of who will provide authorized health care services. In many
cases, Prime beneficiaries will be referred by a primary care manager to
a medical department of an MTF if the type of care needed is available
at the MTF. In such a case, failure to adhere to that referral will
result in the care being subject to point-of-service charges. In other
cases, a referral may be to the civilian provider network, and again,
point-of-service charges would apply to a failure to follow the
referral.
(B) In contrast to referral, preauthorization addresses the issue of
whether particular services may be covered by TRICARE, including whether
they appear necessary and appropriate in the context of the patient's
diagnosis and circumstances. A major purpose of preauthorization is to
prevent surprises about coverage determinations, which are sometimes
dependent on particular details regarding the patient's condition and
circumstances. While TRICARE Prime has referral requirements that do not
exist for TRICARE Select, TRICARE Select has some preauthorization
requirements that do not exist for TRICARE Prime.
(ii) Except as otherwise provided in this paragraph (n)(2), a
beneficiary enrolled in TRICARE Prime is required to obtain a referral
for care through a designated primary care manager (or other authorized
care coordinator) prior to obtaining care under the TRICARE program.
(iii) There is no referral requirement under paragraph (n)(2)(i) of
this section in the following circumstances:
(A) In emergencies;
(B) For urgent care services for a certain number of visits per year
(zero to unlimited), with the number specified by the Director and
notice provided in connection with the open season enrollment period
preceding the plan year; and
(C) In any other special circumstances identified by the Director,
generally with notice provided in connection with the open season
enrollment period for the plan year.
(iv) A primary care manager who believes a referral to a specialty
care provider is medically necessary and appropriate need not obtain
pre-authorization from the managed care support contractor before
referring a patient to a network specialty care provider. Such
preauthorization is only required with respect to a primary care
manager's referral for:
(A) Inpatient hospitalization;
(B) Inpatient care at a skilled nursing facility;
(C) Inpatient care at a rehabilitation facility; and
(D) Inpatient care at a residential treatment facility.
[[Page 335]]
(v) The restrictions in paragraph (n)(2)(iv) of this section on
preauthorization requirements do not apply to any preauthorization
requirements that are generally applicable under TRICARE, independent of
TRICARE Prime referrals, such as:
(A) Under the Pharmacy Benefits Program under 10 U.S.C. 1074g and
Sec. 199.21.
(B) For laboratory and other ancillary services.
(C) Durable medical equipment.
(vi) The cost-sharing requirement for a beneficiary enrolled in
TRICARE Prime who does not obtain a referral for care when it is
required, including care from a non-network provider, is as provided in
paragraph (l)(1)(iii) of this section concerning point of service care.
(vii) In the case of care for which preauthorization is not required
under paragraph (n)(2)(iv) of this section, the Director may authorize a
managed care support contractor to offer a voluntary pre-authorization
program to enable beneficiaries and providers to confirm covered benefit
status and/or medical necessity or to understand the criteria that will
be used by the managed care support contractor to adjudicate the claim
associated with the proposed care. A network provider may not be
required to use such a program with respect to a referral.
(3) Restrictions on the use of providers. The requirements of this
paragraph (n)(3) shall be applicable to health care utilization under
TRICARE Prime, except in cases of emergency care and under point-of-
service option (see paragraph (n)(4) of this section).
(i) Prime enrollees must obtain all primary health care from the
primary care manager or from another provider to which the enrollee is
referred by the primary care manager or otherwise authorized.
(ii) For any necessary specialty care and non-emergent inpatient
care, the primary care manager or other authorized individual will
assist in making an appropriate referral.
(iii) Though referrals for specialty care are generally the
responsibility of the primary care managers, subject to discretion
exercised by the TRICARE Regional Directors, and established in regional
policy or memoranda of understanding, specialist providers may be
permitted to refer patients for additional specialty consultation
appointment services within the TRICARE contractor's network without
prior authorization by primary care managers.
(iv) The following procedures will apply to health care referrals
under TRICARE Prime:
(A) The first priority for referral for specialty care or inpatient
care will be to the local MTF (or to any other MTF in which catchment
area the enrollee resides).
(B) If the local MTF(s) are unavailable for the services needed, but
there is another MTF at which the needed services can be provided, the
enrollee may be required to obtain the services at that MTF. However,
this requirement will only apply to the extent that the enrollee was
informed at the time of (or prior to) enrollment that mandatory
referrals might be made to the MTF involved for the service involved.
(C) If the needed services are available within civilian preferred
provider network serving the area, the enrollee may be required to
obtain the services from a provider within the network. Subject to
availability, the enrollee will have the freedom to choose a provider
from among those in the network.
(D) If the needed services are not available within the civilian
preferred provider network serving the area, the enrollee may be
required to obtain the services from a designated civilian provider
outside the area. However, this requirement will only apply to the
extent that the enrollee was informed at the time of (or prior to)
enrollment that mandatory referrals might be made to the provider
involved for the service involved (with the provider and service either
identified specifically or in connection with some appropriate
classification).
(E) In cases in which the needed health care services cannot be
provided pursuant to the procedures identified in paragraphs
(n)(3)(iv)(A) through (D) of this section, the enrollee will receive
authorization to obtain services from a
[[Page 336]]
TRICARE-authorized civilian provider(s) of the enrollee's choice not
affiliated with the civilian preferred provider network.
(iv) When Prime is operating in non-catchment areas, the
requirements in paragraphs (n)(3)(iv)(B) through (E) of this section
shall apply.
(4) Point-of-service option. TRICARE Prime enrollees retain the
freedom to obtain services from civilian providers on a point-of service
basis. Any health care services obtained by a Prime enrollee, but not
obtained in accordance with the rules and procedures of Prime, will be
covered by the point-of-service option. In such cases, all requirements
applicable to health benefits under Sec. 199.4 shall apply, except that
there shall be higher deductible and cost sharing requirements (as set
forth in paragraph (l)(1)(iii)) of this section). However, Prime rules
may cover such services if the enrollee did not know and could not
reasonably have been expected to know that the services were not
obtained in accordance with the utilization management rules and
procedures of Prime.
(5) Prime travel benefit. In accordance with guidelines issues by
the Assistant Secretary of Defense (Health Affairs), certain travel
expenses may be reimbursed when a TRICARE Prime enrollee is referred by
the primary care manager for medically necessary specialty care more
than 100 miles away from the primary care manager's office. Such
guidelines shall be consistent with appropriate provisions of generally
applicable Department of Defense rules and procedures governing travel
expenses.
(o) TRICARE program enrollment procedures. There are certain
requirements pertaining to procedures for enrollment in TRICARE Prime,
TRICARE Select, and TRICARE Prime Remote for Active Duty Family Members.
(These procedures do not apply to active duty members, whose enrollment
is mandatory and automatic.)
(1) Annual open season enrollment. (i) As a general rule, enrollment
(or a modification to a previous enrollment) must occur during the open
season period prior to the plan year, which is on a calendar year basis.
The open season enrollment period will be of at least 30 calendar days
duration. An enrollment choice will be applicable for the plan year.
(ii) Open season enrollment procedures may include automatic re-
enrollment in the same plan for the next plan year for enrollees or
sponsors that will occur in the event the enrollee does not take other
action during the open season period.
(2) Exceptions to the calendar year enrollment process. The Director
will identify certain qualifying events that may be the basis for a
change in enrollment status during a plan year, such as a change in
eligibility status, marriage, divorce, birth of a new family member,
relocation, loss of other health insurance, or other events. In the case
of such an event, a beneficiary eligible to enroll in a plan may newly
enroll, dis-enroll, or modify a previous enrollment during the plan
year. Initial payment of the applicable enrollment fee shall be
collected for new enrollments in accordance with established procedures.
Any applicable enrollment fee will be pro-rated. A beneficiary who dis-
enrolls without enrolling at the same time in another plan is not
eligible to enroll in a plan later in the same plan year unless there is
another qualifying event. A beneficiary who is dis-enrolled for failure
to pay a required enrollment fee installment is not eligible to re-
enroll in a plan later in the same plan year unless there is another
qualifying event. Generally, the effective date of coverage will
coincide with the date of the qualifying event.
(3) Installment payments of enrollment fee. The Director will
establish procedures for installment payments of enrollment fees.(4)
Effect of failure to enroll. Beneficiaries eligible to enroll in Prime
or Select and who do not enroll will no longer have coverage under the
TRICARE program until the next annual open season enrollment or they
have a qualifying event, except that they do not lose any statutory
eligibility for space-available care in military medical treatment
facilities. There is a limited grace period exception to this enrollment
requirement for calendar year 2018, as provided in section 701(d)(3) of
the National Defense Authorization Act for Fiscal Year 2017.
[[Page 337]]
(5) Automatic enrollment for certain dependents. Under 10 U.S.C.
1097a, in the case of dependents of active duty members in the grade of
E-1 to E-4, such dependents who reside in a catchment area of a military
treatment facility shall be enrolled in TRICARE Prime. The Director may
provide for the automatic enrollment in TRICARE Prime for such
dependents of active duty members in the grade of E-5 and higher. In any
case of automatic enrollment under this paragraph (o)(5), the member
will be provided written notice and the automatic enrollment may be
cancelled at the election of the member.
(6) Grace periods. The Director may make provisions for grace
periods for enrollment-related actions to facilitate effective operation
of the enrollment program.
(p) Civilian preferred provider networks. A major feature of the
TRICARE program is the civilian preferred provider network.
(1) Status of network providers. Providers in the preferred provider
network are not employees or agents of the Department of Defense or the
United States Government. Although network providers must follow
numerous rules and procedures of the TRICARE program, on matters of
professional judgment and professional practice, the network provider is
independent and not operating under the direction and control of the
Department of Defense.
(2) Utilization management policies. Preferred providers are
required to follow the utilization management policies and procedures of
the TRICARE program. These policies and procedures are part of
discretionary judgments by the Department of Defense regarding the
methods of delivering and financing health care services that will best
achieve health and economic policy objectives.
(3) Quality assurance requirements. A number of quality assurance
requirements and procedures are applicable to preferred network
providers. These are for the purpose of assuring that the health care
services paid for with government funds meet the standards called for in
the contract and provider agreement.
(4) Provider qualifications. All preferred providers must meet the
following qualifications:
(i) They must be TRICARE-authorized providers and TRICARE-
participating providers. In addition, a network provider may not require
payment from the beneficiary for any excluded or excludable services
that the beneficiary received from the network provider (i.e., the
beneficiary will be held harmless) except as follows:
(A) If the beneficiary did not inform the provider that he or she
was a TRICARE beneficiary, the provider may bill the beneficiary for
services provided.
(B) If the beneficiary was informed in writing that the specific
services were excluded or excludable from TRICARE coverage and the
beneficiary agreed in writing, in advance of the services being
provided, to pay for the services, the provider may bill the
beneficiary.
(ii) All physicians in the preferred provider network must have
staff privileges in a hospital accredited by The Joint Commission (TJC)
or other accrediting body determined by the Director. This requirement
may be waived in any case in which a physician's practice does not
include the need for admitting privileges in such a hospital, or in
locations where no accredited facility exists. However, in any case in
which the requirement is waived, the physician must comply with
alternative qualification standards as are established by the Director.
(iii) All preferred providers must agree to follow all quality
assurance, utilization management, and patient referral procedures
established pursuant to this section, to make available to designated
DoD utilization management or quality monitoring contractors medical
records and other pertinent records, and to authorize the release of
information to MTF Commanders regarding such quality assurance and
utilization management activities.
(iv) All preferred network providers must be Medicare participating
providers, unless this requirement is waived based on extraordinary
circumstances. This requirement that a provider be a Medicare
participating provider does not apply to providers
[[Page 338]]
who not eligible to be participating providers under Medicare.
(v) The network provider must be available to all TRICARE
beneficiaries.
(vi) The provider must agree to accept the same payment rates
negotiated for Prime enrollees for any person whose care is reimbursable
by the Department of Defense, including, for example, Select
participants, supplemental care cases, and beneficiaries from outside
the area.
(vii) All preferred providers must meet all other qualification
requirements, and agree to comply with all other rules and procedures
established for the preferred provider network.
(viii) In locations where TRICARE Prime is not available, a TRICARE
provider network will, to the extent practicable, be available for
TRICARE Select enrollees. In these locations, the minimal requirements
for network participation are those set forth in paragraph (p)(4)(i) of
this section. Other requirements of this paragraph (p) will apply unless
waived by the Director.
(5) Access standards. Preferred provider networks will have
attributes of size, composition, mix of providers and geographical
distribution so that the networks, coupled with the MTF capabilities
(when applicable), can adequately address the health care needs of the
enrollees. In the event that a Prime enrollee seeks to obtain from the
managed care support contractor an appointment for care but is not
offered an appointment within the access time standards from a network
provider, the enrollee will be authorized to receive care from a non-
network provider without incurring the additional fees associated with
point-of-service care. The following are the access standards:
(i) Under normal circumstances, enrollee travel time may not exceed
30 minutes from home to primary care delivery site unless a longer time
is necessary because of the absence of providers (including providers
not part of the network) in the area.
(ii) The wait time for an appointment for a well-patient visit or a
specialty care referral shall not exceed four weeks; for a routine
visit, the wait time for an appointment shall not exceed one week; and
for an urgent care visit the wait time for an appointment shall
generally not exceed 24 hours.
(iii) Emergency services shall be available and accessible to handle
emergencies (and urgent care visits if not available from other primary
care providers pursuant to paragraph (p)(5)(ii) of this section), within
the service area 24 hours a day, seven days a week.
(iv) The network shall include a sufficient number and mix of board
certified specialists to meet reasonably the anticipated needs of
enrollees. Travel time for specialty care shall not exceed one hour
under normal circumstances, unless a longer time is necessary because of
the absence of providers (including providers not part of the network)
in the area. This requirement does not apply under the Specialized
Treatment Services Program.
(v) Office waiting times in nonemergency circumstances shall not
exceed 30 minutes, except when emergency care is being provided to
patients, and the normal schedule is disrupted.
(6) Special reimbursement methods for network providers. The
Director, may establish, for preferred provider networks, reimbursement
rates and methods different from those established pursuant to Sec.
199.14. Such provisions may be expressed in terms of percentage
discounts off CHAMPUS allowable amounts, or in other terms. In
circumstances in which payments are based on hospital-specific rates (or
other rates specific to particular institutional providers), special
reimbursement methods may permit payments based on discounts off
national or regional prevailing payment levels, even if higher than
particular institution-specific payment rates.
(q) Preferred provider network establishment. (1) The any qualified
provider method may be used to establish a civilian preferred provider
network. Under this method, any TRICARE-authorized provider that meets
the qualification standards established by the Director, or designee,
may become a part of the preferred provider network. Such standards must
be publicly announced and uniformly applied. Also under this method, any
provider who
[[Page 339]]
meets all applicable qualification standards may not be excluded from
the preferred provider network. Qualifications include:
(i) The provider must meet all applicable requirements in paragraph
(p)(4) of this section.
(ii) The provider must agree to follow all quality assurance and
utilization management procedures established pursuant to this section.
(iii) The provider must be a participating provider under TRICARE
for all claims.
(iv) The provider must meet all other qualification requirements,
and agree to all other rules and procedures, that are established,
publicly announced, and uniformly applies by the Director (or other
authorized official).
(v) The provider must sign a preferred provider network agreement
covering all applicable requirements. Such agreements will be for a
duration of one year, are renewable, and may be canceled by the provider
or the Director (or other authorized official) upon appropriate notice
to the other party. The Director shall establish an agreement model or
other guidelines to promote uniformity in the agreements.
(2) In addition to the above requirements, the Director, or
designee, may establish additional categories of preferred providers of
high quality/high value that require additional qualifications.
(r) General fraud, abuse, and conflict of interest requirements
under TRICARE program. All fraud, abuse, and conflict of interest
requirements for the basic CHAMPUS program, as set forth in this part
(see especially applicable provisions of Sec. 199.9) are applicable to
the TRICARE program.
(s) [Reserved]
(t) Inclusion of Department of Veterans Affairs Medical Centers in
TRICARE networks. TRICARE preferred provider networks may include
Department of Veterans Affairs health facilities pursuant to
arrangements, made with the approval of the Assistant Secretary of
Defense (Health Affairs), between those centers and the Director, or
designated TRICARE contractor.
(u) Care provided outside the United States. The TRICARE program is
not automatically implemented in all respects outside the United States.
This paragraph (u) sets forth the provisions of this section applicable
to care received outside the United States under the following TRICARE
health plans.
(1) TRICARE Prime. The Director may, in conjunction with
implementation of the TRICARE program, authorize a special Prime program
for command sponsored dependents of active duty members who accompany
the members in their assignments in foreign countries. Under this
special program, a preferred provider network may be established through
contracts or agreements with selected health care providers. Under the
network, Prime covered services will be provided to the enrolled covered
dependents subject to applicable Prime deductibles, copayments, and
point-of-service charges. To the extent practicable, rules and
procedures applicable to TRICARE Prime under this section shall apply
unless specific exemptions are granted in writing by the Director. The
use of this authority by the Director for any particular geographical
area will be published on the primary publicly available Internet Web
site of the Department and on the publicly available Internet Web site
of the managed care support contractor that has established the provider
network under the TRICARE program. Published information will include a
description of the preferred provider network program and other
pertinent information. The Director shall also issue policies,
instructions, and guidelines necessary to implement this special
program.
(2) TRICARE Select. The TRICARE Select option shall be available
outside the United States except that a preferred provider network of
providers shall only be established in areas where the Director
determines that it is economically in the best interest of the
Department of Defense. In such a case, the Director shall establish a
preferred provider network through contracts or agreements with selected
health care providers for eligible beneficiaries to receive covered
benefits subject to the enrollment and cost-sharing amounts applicable
to the specific category of beneficiary. When an eligible beneficiary,
other than a TRICARE for Life beneficiary, receives covered services
[[Page 340]]
from an authorized TRICARE non-network provider, including in areas
where a preferred provider network has not been established by the
Director, the beneficiary shall be subject to cost-sharing amounts
applicable to out-of-network care. To the extent practicable, rules and
procedures applicable to TRICARE Select under this section shall apply
unless specific exemptions are granted in writing by the Director. The
use of this authority by the Director to establish a TRICARE preferred
provider network for any particular geographical area will be published
on the primary publicly available Internet Web site of the Department
and on the publicly available Internet Web site of the managed care
support contractor that has established the provider network under the
TRICARE program. Published information will include a description of the
preferred provider network program and other pertinent information. The
Director shall also issue policies, instructions, and guidelines
necessary to implement this special program.
(3) TRICARE for Life. The TRICARE for Life (TFL) option shall be
available outside the United States. Eligible TFL beneficiaries may
receive covered services and supplies authorized under Sec. 199.4,
subject to the applicable catastrophic cap, deductibles and cost-shares
under Sec. 199.4, whether received from a network provider or any
authorized TRICARE provider not in a preferred provider network.
However, if a TFL beneficiary receives covered services from a PPN
provider, the beneficiary's out-of-pocket costs will generally be lower.
(v) Administration of the TRICARE program in the state of Alaska. In
view of the unique geographical and environmental characteristics
impacting the delivery of health care in the state of Alaska,
administration of the TRICARE program in the state of Alaska will not
include financial underwriting of the delivery of health care by a
TRICARE contractor. All other provisions of this section shall apply to
administration of the TRICARE program in the state of Alaska as they
apply to the other 49 states and the District of Columbia.
(w) Administrative procedures. The Assistant Secretary of Defense
(Health Affairs), the Director, and MTF Commanders (or other authorized
officials) are authorized to establish administrative requirements and
procedures, consistent with this section, this part, and other
applicable DoD Directives or Instructions, for the implementation and
operation of the TRICARE program.
[82 FR 45448, Sept. 29, 2017, as amended at 84 FR 4333, Feb. 15, 2019]
Sec. 199.18 [Reserved]
Sec. 199.20 Continued Health Care Benefit Program (CHCBP).
(a) Purpose. The CHCBP is a premium-based temporary health care
coverage program, authorized by 10 U.S.C. 1078a, and available to
individuals who meet the eligibility and enrollment criteria as set
forth in paragraph (d)(1) of this section. The CHCBP is not part of the
TRICARE program. However, as set forth in this section, it functions
under similar rules and procedures to the TRICARE Select program.
Because the purpose of the CHCBP is to provide a continuation health
care benefit for Department of Defense and the other uniformed services
beneficiaries losing eligibility, it will be administered so that it
appears, to the maximum extent practicable, to be part of the TRICARE
Select program. Medical coverage under this program will be the same as
the benefits payable under the TRICARE Select program. There is a cost
for enrollment to the CHCBP and these premium costs must be paid by
CHCBP enrollees before any care may be cost shared.
(b) General provisions. Except for any provisions the Director of
the TRICARE Management Activity may exclude, the general provisions of
Sec. 199.1 shall apply to the CHCBP as they do to TRICARE.
(c) Definitions. Except as may be specifically provided in this
section, to the extent terms defined in Sec. 199.2 are relevant to the
administration of the CHCBP, the definitions contained in that section
shall apply to the CHCBP as they do to the TRICARE Select program.
(d) Eligibility and enrollment. (1) Eligibility, Enrollment in the
CHCBP is open
[[Page 341]]
to any individual, except as noted in this section, who:
(i) Ceases to meet the requirements for eligibility under 10 U.S.C.
chapter 55 or 10 U.S.C. 1145, and
(ii) Who on the day before they cease to meet the eligibility
requirements for such care they were covered under a health benefit plan
under 10 U.S.C. chapter 55 or transitional healthcare under 10 U.S.C.
1145, and
(iii) Who would otherwise not be eligible for any benefits under 10
U.S.C. chapter 55 or 10 U.S.C. 1145 except for CHCBP.
(2) Exceptions. The following individuals are not eligible to enroll
in CHCBP:
(i) Members of uniformed services, who are discharged or released
from active duty either voluntarily or involuntarily under conditions
that are adverse.
(ii) Individuals who lost their eligibility or entitlement to care
under 10 U.S.C. chapter 55 or 10 U.S.C. 1145 before October 1, 1994.
(iii) Individuals who are locked out of other TRICARE programs per
that program's requirements.
(3) Effective date. Eligibility in the CHCBP is limited to
individuals who lost their entitlement to benefits under the MHS on or
after October 1, 1994. The effective date of their coverage under CHCBP
shall begin on the day after they cease to be eligible for care under 10
U.S.C. chapter 55 or 10 U.S.C. 1145.
(4) Notification of eligibility.
(i) The Department of Defense and the other uniformed services
(National Oceanic and Atmospheric Administration (NOAA), Public Health
Service (PHS), and Coast Guard) will notify persons in the uniformed
services eligible to receive health benefits under the CHCBP. In the
case of a member who becomes (or will become) eligible for continued
coverage, the Department of Defense shall notify the member of their
rights for coverage as part of pre-separation counseling conducted under
10 U.S.C. 1142.
(ii) In the case of a dependent of a member or former member who
become eligible for continued coverage under paragraph (d)(1)(ii) of
this section:
(A) The member or former member may submit to the CHCBP contractor a
notice with supporting documentation of the dependent's change in status
(including the dependent's name, address, and such other information
needed); and
(B) The CHCBP contractor, within fourteen (14) days after receiving
such information, will inform the dependent of the dependent's rights
under 10 U.S.C. 1142.
(iii) In the case of a former spouse of a member or former member
who becomes eligible for continued coverage, the member, former member
or former spouse may submit to the CHCBP contractor a notice of the
former spouse's change in status. The CHCBP contractor within fourteen
(14) days after receiving such information will notify the individual of
their potential eligibility for CHCBP.
(5) Election of coverage. In order to obtain coverage under the
CHCBP, a written election by the eligible beneficiary must be made
within a prescribed time period.
(i) In the case of a member discharged or released from active duty
or full-time National Guard duty (whether voluntarily or involuntarily),
or a RC member formerly eligible for care under 10 U.S.C. chapter 55,
the written election shall be submitted to the CHCBP contractor before
the end of the 60-day period beginning on the later of:
(A) The date of the discharge or release of the member; or
(B) The date that the period of transitional health care applicable
to the member under 10 U.S.C. 1145(a) ends; or
(C) The date the member receives the notification required in
paragraph (d)(3) of this section.
(ii) In the case of a child who ceases to meet the requirements for
being an unremarried dependent child of a member or former member under
10 U.S.C. 1072(2)(D) or an unmarried dependent of a member or former
member of the uniformed services under 10 U.S.C. 1072(2)(I), the written
election shall be submitted to the CHCBP contractor before the end of
the 60-day period beginning on the later of:
[[Page 342]]
(A) The date that the dependent ceases to meet the definition of a
dependent under 10 U.S.C. 1072(2)(D) or 10 U.S.C. 1072(2)(I); or
(B) The date that the dependent receives the notification required
in paragraph (d)(3) of this section,
(iii) In the case of former spouse of a member or former member, the
written election shall be submitted to the CHCBP contractor before the
end of the 60-day period beginning on the date as of which the former
spouse first ceases to meet the requirements for being considered a
dependent under 10 U.S.C. 1072(2).
(iv) In the case of an unmarried surviving spouse of a member or
former member of the uniformed services who on the day before the death
of the member or former member was covered under 10 U.S.C. chapter 55 or
10 U.S.C. 1145(a), the written election shall be submitted to the CHCBP
contractor within 60 days of the date of the member or former member's
death.
(v) A member of the uniformed services who is eligible for
enrollment under paragraph (d)(1) of this section may elect self-only or
family coverage. Family members who may be included in such family
coverage are the spouse and children of the member.
(vi) All other categories eligible for enrollment under paragraph
(d)(1) of this section must elect self-only coverage.
(6) Enrollment. To enroll in the CHCBP, an eligible individual must
submit the completed enrollment form designated by the Director, TRICARE
as well as any documentation as requested on the enrollment form to
verify the applicant's eligibility for enrolling in CHCBP, and payment
to cover the quarter's premium. The CHCBP contractor may request
additional information and documentation to confirm the applicant's
eligibility for CHCBP.
(7) Period of coverage. Except as noted below CHCBP coverage may not
extend beyond 18 months from the date the individual becomes eligible
for CHCBP. Although beneficiaries have sixty (60) days to elect coverage
under the CHCBP, upon enrolling, the period of coverage must begin the
day after entitlement or eligibility to a military health care plan ends
as though no break in coverage had occurred notwithstanding the date the
enrollment form with any applicable premium is submitted.
(i) Exceptions:
(A) In the case of a child of a member or former member, the date
which is 36 months after the date on which the person first ceases to
meet the requirements for being considered an unmarried dependent child
under 10 U.S.C. 1072(2)(D) or 10 U.S.C. 1072(2)(I).
(B) In the case of an unremarried former spouse (as this term is
defined in 10 U.S.C. 1072(2)(G) or (H)) of a member or former member,
the date which is 36 months after the later of:
(1) The date on which the final decree of divorce, dissolution, or
annulment occurs; or
(2) If applicable, the date the one-year extension of dependency
under 10 U.S.C. 1072(2)(H) expires.
(C) In the case of an unremarried surviving spouse (widow or
widower) (under 10 U.S.C. 1072(2)(B) or (C)) of a member or former
member of the uniformed services who is not otherwise eligible for care
under 10 U.S.C. chapter 55, the date which is 36 months after the date
the surviving spouse becomes ineligible under 10 U.S.C chapter 55 or 10
U.S.C. 1145(a).
(D) In the case of a former spouse of a member or former member
(other than the former spouse whose marriage was dissolved after the
separation of the member from the service unless such separation was by
retirement), the period of coverage under the CHCBP is unlimited, if
former spouse:
(1) Has not remarried before age of 55 after the marriage to the
member or former member was dissolved; and
(2) Was eligible for TRICARE as a dependent or enrolled in CHCBP at
any time during the 18 month period before the date of the divorce,
dissolution, or annulment; and
(3) Is receiving a portion of the retired or retainer pay of a
member or former member or an annuity based on the retainer pay of the
member; or
(4) Has a court order for payment of any portion of the retired or
retainer pay or has a written agreement (whether voluntary or pursuant
to a court order) which provides for an election
[[Page 343]]
by the member or former member to provide an annuity to the former
spouse.
(E) For the beneficiary who becomes eligible for the CHCBP by
ceasing to meet the requirements for being considered an unmarried
dependent child of a member or former member, health care coverage may
not extend beyond the date which is 36 months after the date the member
becomes ineligible for medical and dental care under 10 U.S.C. 1074(a)
and any transitional health care under 10 U.S.C. 1145(a).
(e) CHCBP benefits--(1) In general. Except as provided in paragraph
(e)(2) of this section, the provisions of Sec. 199.4 shall apply to the
CHCBP as they do to TRICARE Select under Sec. 199.17.
(2) Exceptions. The following provisions of Sec. 199.4 are not
applicable to the CHCBP:
(i) Section 199.4(a)(2) concerning eligibility.
(ii) All provisions regarding requirements to use facilities of the
uniformed services because CHCBP enrollees are not eligible to use those
facilities.
(3) Beneficiary liability. For purposes of CHCBP coverage, the
beneficiary deductible, catastrophic cap and cost share provisions of
the TRICARE Select plan applicable to Group B beneficiaries under Sec.
199.17(l)(2)(ii) shall apply based on the category of beneficiary (e.g.,
Active Duty Family Member or Retiree Family) to which the CHCBP enrollee
last belonged, except that for separating active duty members, amounts
applicable to TRICARE Select Active Duty Family Members shall apply. The
premium under paragraph (q) of this section applies instead of any
TRICARE Select plan enrollment fee under Sec. 199.17.
(f) Authorized providers. The provisions of Sec. 199.6 shall apply
to the CHCBP as they do to TRICARE Select program.
(g) Claims submission, review, and payment. The provisions of Sec.
199.7 shall apply to the CHCBP as they do to TRICARE Select program
except no provisions regarding nonavailability statements shall apply.
(h) Double coverage. The provisions of Sec. 199.8 shall apply to
the CHCBP as they do to TRICARE Select program.
(i) Administrative remedies for fraud, abuse, and conflict of
interest. The provisions of Sec. 199.9 shall apply to the CHCBP as they
do to TRICARE Select program.
(j) Appeal and hearing procedures. The provisions of Sec. 199.10
shall apply to the CHCBP as they do to TRICARE Select program.
(k) Overpayments recovery. The provisions of Sec. 199.11 shall
apply to the CHCBP as they do to TRICARE Select program.
(l) Third party recoveries. The provisions of Sec. 199.12 shall
apply to the CHCBP as they do to TRICARE Select program.
(m) Provider reimbursement methods. The provisions of Sec. 199.14
shall apply to the CHCBP as they do to TRICARE Select program.
(n) Quality and Utilization Review Peer Review Organization Program.
The provisions of Sec. 199.15 shall apply to the CHCBP as they do to
TRICARE Select program.
(o) [Reserved]
(p) Special programs not applicable--(1) In general. Special
programs established under this part that are not part of the TRICARE
Select program are not, unless specifically provided in this section,
available to participants in the CHCBP.
(2) Examples. The special programs referred to in paragraph (p)(1)
of this section include but are not limited to:
(i) The Extended Care Health Option under Sec. 199.5;
(ii) The TRICARE Dental Program or Retiree Dental Program under
Sec. 199.13 and 199.22 respectively;
(iii) The Supplemental Health Care Program under Sec. 199.16; and
(iv) The TRICARE Prime Program under Sec. 199.17.
(q) Premiums--(1) Rates. Premium rates will be established by the
Assistant Secretary of Defense (Health Affairs) for two rate groups--
individual and family. Eligible beneficiaries will select the level of
coverage they require at the time of initial enrollment (either
individual or family) and pay the appropriate premium payment. The rates
are based on Federal Employees Health Benefits Program employee and
agency contributions required for a comparable health benefits plan,
plus
[[Page 344]]
an administrative fee. The administrative fee, not to exceed ten percent
of the basic premium amount, shall be determined based on actual
expected administrative costs for administration of the program.
Premiums may be revised annually and shall be published when the premium
amount is changed. Premiums will be paid by enrollees quarterly.
(2) Effects of failure to make premium payments. Failure by
enrollees to submit timely and proper premium payments will result in
denial of continued enrollment and denial of payment of medical claims.
Premium payments that are late thirty (30) days or more past the start
of the quarter for which payment is due will result in the termination
of beneficiary enrollment. Beneficiaries denied continued enrollment due
to lack of premium payments will not be allowed to reenroll. In such a
case, benefit coverage will cease at the end of the ninety (90) day
period for which a premium payment was received. Enrollees will be held
liable for medical costs incurred after losing eligibility.
(r) Procedures. The Director, TRICARE Management Activity, may
establish other rules and procedures for the administration of the
CHCBP.
[76 FR 57639, Sept. 16, 2011, as amended at 82 FR 45457, Sept. 29, 2017]
Sec. 199.21 TRICARE Pharmacy Benefits Program.
(a) General--(1) Statutory authority. Title 10, U.S. Code, Section
1074g requires that the Department of Defense establish an effective,
efficient, integrated pharmacy benefits program for the Military Health
System. This law is independent of a number of sections of Title 10 and
other laws that affect the benefits, rules, and procedures of TRICARE,
resulting in changes to the rules otherwise applicable to TRICARE Prime,
Standard, and Extra.
(2) Pharmacy benefits program. (i) Applicability. The pharmacy
benefits program, which includes the uniform formulary and its
associated tiered co-payment structure, is applicable to all of the
uniformed services. Geographically, except as specifically provided in
paragraph (a)(2)(ii) of this section, this program is applicable to all
50 states and the District of Columbia, Guam, Puerto Rico, and the
Virgin Islands. In addition, if authorized by the Assistant Secretary of
Defense (Health Affairs) (ASD(HA)), the TRICARE pharmacy benefits
program may be implemented in areas outside the 50 states and the
District of Columbia, Guam, Puerto Rico, and the Virgin Islands. In such
case, the ASD (HA) may also authorize modifications to the pharmacy
benefits program rules and procedures as may be appropriate to the area
involved.
(ii) Applicability exception. The pharmaceutical benefit under the
TRICARE smoking cessation program under Sec. 199.4(e)(30) is available
to TRICARE beneficiaries who are not entitled to Medicare benefits
authorized under Title XVIII of the Social Security Act. Except as noted
in Sec. 199.4(e)(30), the smoking cessation program, including the
pharmaceutical benefit, is not applicable or available to beneficiaries
who reside overseas, including the U. S. territories of Guam, Puerto
Rico, and the Virgin Islands, except that under the authority of Sec.
199.17 active duty service members and active duty dependents enrolled
in TRICARE Prime residing overseas, including the U. S. territories of
Guam, Puerto Rico, and the Virgin Islands, shall have access to smoking
cessation pharmaceuticals through either an MTF or the TMOP program
where available.
(3) Uniform formulary. The pharmacy benefits program features a
uniform formulary of pharmaceutical agents as defined in Sec. 199.2.
(i) The uniform formulary will assure the availability of
pharmaceutical agents in the complete range of therapeutic classes
authorized as basic program benefits.
(ii) As required by 10 U.S.C. 1074g(a)(2) and implemented under the
procedures established by paragraphs (e) and (f) of this section,
pharmaceutical agents in each therapeutic class are selected for
inclusion on the uniform formulary based upon the relative clinical
effectiveness and cost effectiveness of the agents in such class. If a
pharmaceutical agent in a therapeutic class is determined by the
Department of Defense Pharmacy and Therapeutics Committee not to have a
significant, clinically meaningful
[[Page 345]]
therapeutic advantage in terms of safety, effectiveness, or clinical
outcome over other pharmaceutical agents included on the uniform
formulary, the Committee may recommend it be classified as a non-
formulary agent. In addition, if the evaluation by the Pharmacy and
Therapeutics Committee concludes that a pharmaceutical agent in a
therapeutic class is not cost effective relative to other pharmaceutical
agents in that therapeutic class, considering costs, safety,
effectiveness, and clinical outcomes, the Committee may recommend it be
classified as a non-formulary agent.
(iii) Pharmaceutical agents which are used exclusively in medical
treatments or procedures that are expressly excluded from the TRICARE
benefit by statute or regulation will not be considered for inclusion on
the uniform formulary. Excluded pharmaceutical agents shall not be
available as non-formulary agents, nor will they be cost-shared under
the TRICARE pharmacy benefits program.
(b) Definitions. For most definitions applicable to the provisions
of this section, refer to Sec. 199.2. The following definitions apply
only to this section:
(1) Clinically necessary. Also referred to as clinical necessity.
Sufficient evidence submitted by a beneficiary or provider on behalf of
the beneficiary that establishes that one or more of the following
conditions exist: The use of formulary pharmaceutical agents is
contraindicated; the patient experiences significant adverse effects
from formulary pharmaceutical agents in the therapeutic class, or is
likely to experience significant adverse effects from formulary
pharmaceutical agents in the therapeutic class; formulary pharmaceutical
agents result in therapeutic failure, or the formulary pharmaceutical
agent is likely to result in therapeutic failure; the patient previously
responded to a non-formulary pharmaceutical agent and changing to a
formulary pharmaceutical agent would incur an unacceptable clinical
risk; or there is no alternative pharmaceutical agent on the formulary.
(2) Therapeutic class. A group of pharmaceutical agents that are
similar in chemical structure, pharmacological effect, and/or clinical
use.
(3) Over-the-counter drug. A drug that is not subject to section
503(b)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
353(b)(1)).
(c) Department of Defense Pharmacy and Therapeutics Committee--(1)
Purpose. The Department of Defense Pharmacy and Therapeutics Committee
is established by 10 U.S.C. 1074g to assure that the selection of
pharmaceutical agents for the uniform formulary is based on broadly
representative professional expertise concerning relative clinical and
cost effectiveness of pharmaceutical agents and accomplishes an
effective, efficient, integrated pharmacy benefits program.
(2) Composition. As required by 10 U.S.C. 1074g(b), the committee
includes representatives of pharmacies of the uniformed services
facilities and representatives of providers in facilities of the
uniformed services. Committee members will have expertise in treating
the medical needs of the populations served through such entities and in
the range of pharmaceutical and biological medicines available for
treating such populations.
(3) Executive Council. The Pharmacy and Therapeutics Committee may
have an Executive Council, composed of those voting and non-voting
members of the Committee who are military or civilian employees of the
Department of Defense. The function of the Executive Council is to
review and analyze issues relating to the operation of the uniform
formulary, including issues of an inherently governmental nature,
procurement sensitive information, and matters affecting military
readiness. The Executive Council presents information to the Pharmacy
and Therapeutics Committee, but is not authorized to act for the
Committee.
(d) Uniform Formulary Beneficiary Advisory Panel. As required by 10
U.S.C. 1074g(c), a Uniform Formulary Beneficiary Advisory Panel reviews
and comments on the development of the uniform formulary. The Panel
includes members that represent non-governmental organizations and
associations that represent the views and interests of a large number of
eligible covered beneficiaries, contractors responsible for the TRICARE
retail pharmacy program, contractors responsible for the
[[Page 346]]
TRICARE mail-order pharmacy program, and TRICARE network providers. The
panel will meet after each Pharmacy and Therapeutics Committee quarterly
meeting. The Panel's comments will be submitted to the Director, TRICARE
Management Activity. The Director will consider the comments before
implementing the uniform formulary or any recommendations for change
made by the Pharmacy and Therapeutics Committee. The Panel will function
in accordance with the Federated Advisory Committee Act (5 U.S.C. App.
2).
(e) Determinations regarding relative clinical and cost
effectiveness for the selection of pharmaceutical agents for the uniform
formulary--(1) Clinical effectiveness. (i) It is presumed that
pharmaceutical agents in a therapeutic class are clinically effective
and should be included on the uniform formulary unless the Pharmacy and
Therapeutics Committee finds by a majority vote that a pharmaceutical
agent does not have a significant, clinically meaningful therapeutic
advantage in terms of safety, effectiveness, or clinical outcome over
the other pharmaceutical agents included on the uniform formulary in
that therapeutic class. This determination is based on the collective
professional judgment of the DoD Pharmacy and Therapeutics Committee and
consideration of pertinent information from a variety of sources
determined by the Committee to be relevant and reliable. The DoD
Pharmacy and Therapeutics Committee has discretion based on its
collective professional judgment in determining what sources should be
reviewed or relied upon in evaluating the clinical effectiveness of a
pharmaceutical agent in a therapeutic class.
(ii) Sources of information may include but are not limited to:
(A) Medical and pharmaceutical textbooks and reference books;
(B) Clinical literature;
(C) U.S. Food and Drug Administration determinations and
information;
(D) Information from pharmaceutical companies;
(E) Clinical practice guidelines, and
(F) Expert opinion.
(iii) The DoD Pharmacy and Therapeutics Committee will evaluate the
relative clinical effectiveness of pharmaceutical agents within a
therapeutic class by considering information about their safety,
effectiveness, and clinical outcome.
(iv) Information considered by the Committee may include but is not
limited to:
(A) U.S. Food and Drug Administration approved and other studied
indications;
(B) Pharmacology;
(C) Pharmacokinetics;
(D) Contraindications;
(E) Warnings/precautions;
(F) Incidence and severity of adverse effects;
(G) Drug to drug, drug to food, and drug to disease interactions;
(H) Availability, dosing, and method of administration;
(I) Epidemiology and relevant risk factors for diseases/conditions
in which the pharmaceutical agents are used;
(J) Concomitant therapies;
(K) Results of safety and efficacy studies;
(L) Results of effectiveness/clinical outcomes studies, and
(M) Results of meta-analyses.
(2) Cost effectiveness. (i) In considering the relative cost
effectiveness of pharmaceutical agents in a therapeutic class, the DoD
Pharmacy and Therapeutics Committee shall evaluate the costs of the
agents in relation to the safety, effectiveness, and clinical outcomes
of the other agents in the class.
(ii) Information considered by the Committee concerning the relative
cost effectiveness of pharmaceutical agents may include but is not
limited to:
(A) Cost of the pharmaceutical agent to the Government;
(B) Impact on overall medical resource utilization and costs;
(C) Cost-efficacy studies;
(D) Cost-effectiveness studies;
(E) Cross-sectional or retrospective economic evaluations;
(F) Pharmacoeconomic models;
(G) Patent expiration dates;
(H) Clinical practice guideline recommendations, and
(I) Existence of existing or proposed blanket purchase agreements,
incentive price agreements, or contracts.
[[Page 347]]
(3) Special rules for best clinical effectiveness. (i) Under the
authority of 10 U.S.C. 1074g(a)(10), the Pharmacy and Therapeutics
Committee may recommend and the Director may, after considering the
comments and recommendations of the Beneficiary Advisory Panel, approve
special uniform formulary actions to encourage use of pharmaceutical
agents that provide the best clinical effectiveness to covered
beneficiaries and DoD, including consideration of better care, healthier
people, and smarter spending. Such special actions may operate as
exceptions to the normal rules and procedures under 10 U.S.C.
1074g(a)(2), (5) and (6) and the related provisions of this section.
(ii) Actions under paragraph (e)(3)(i) of this section may include a
complete or partial exclusion from the pharmacy benefits program of any
pharmaceutical agent the Director determines provides very little or no
clinical effectiveness relative to similar agents to covered
beneficiaries and DoD. A partial exclusion under this paragraph may take
the form (as one example) of a limitation on the clinical conditions,
diagnoses, or indications for which the pharmaceutical agent may be
prescribed. A partial exclusion may be implemented through any means
recommended by the Pharmacy and Therapeutics Committee, including but
not limited to preauthorization under paragraph (k) of this section. In
the case of a partial exclusion, a pharmaceutical agent may be available
on the non-formulary tier of the uniform formulary for limited purposes
and for other purposes be excluded.
(iii) Actions under paragraph (e)(3)(i) of this section may also
include giving preferential status to any non-generic pharmaceutical
agent of the uniform formulary by treating it for purposes of cost-
sharing as a generic product.
(f) Evaluation of pharmaceutical agents for determinations regarding
inclusion on the uniform formulary. The DoD Pharmacy and Therapeutics
Committee will periodically evaluate or re-evaluate individual
pharmaceutical agents and therapeutic classes of pharmaceutical agents
for determinations regarding inclusion or continuation on the uniform
formulary. Such evaluation or re-evaluation may be prompted by a variety
of circumstances including, but not limited to:
(1) Approval of a new pharmaceutical agent by the U.S. Food and Drug
Administration;
(2) Approval of a new indication for an existing pharmaceutical
agent;
(3) Changes in the clinical use of existing pharmaceutical agents;
(4) New information concerning the safety, effectiveness or clinical
outcomes of existing pharmaceutical agents;
(5) Price changes;
(6) Shifts in market share;
(7) Scheduled review of a therapeutic class; and
(8) Requests from Pharmacy and Therapeutics Committee members,
military treatment facilities, or other Military Health System
officials.
(g) Administrative procedures for establishing and maintaining the
uniform formulary--(1) Pharmacy and Therapeutics Committee
determinations. Determinations of the Pharmacy and Therapeutics
Committee are by majority vote and recorded in minutes of Committee
meetings. The minutes set forth the determinations of the committee
regarding the pharmaceutical agents selected for inclusion in the
uniform formulary and summarize the reasons for those determinations.
For any pharmaceutical agent (including maintenance medications) for
which a recommendation is made that the status of the agent be changed
from the formulary tier to the non-formulary tier of the uniform
formulary, or that the agent requires a pre-authorization, the Committee
shall also make a recommendation as to effective date of such change
that will not be longer than 180 days from the final decision date but
may be less. The minutes will include a record of the number of members
voting for and against the Committee's action.
(2) Beneficiary Advisory Panel. Comments and recommendations of the
Beneficiary Advisory Panel are recorded in minutes of Panel meetings.
The minutes set forth the comments and recommendations of the Panel and
summarize the reasons for those comments and recommendations. The
minutes will include a record of the number of members voting for or
against
[[Page 348]]
the Panel's comments and recommendations.
(3) Uniform formulary final decisions. The Director of the TRICARE
Management Activity makes the final DoD decisions regarding the uniform
formulary. Those decisions are based on the Director's review of the
final determinations of the Pharmacy and Therapeutics Committee and the
comments and recommendations of the Beneficiary Advisory Panel. No
pharmaceutical agent may be designated as non-formulary on the uniform
formulary unless it is preceded by such recommendation by the Pharmacy
and Therapeutics Committee. The decisions of the Director of the TRICARE
Management Activity are in writing and establish the effective date(s)
of the uniform formulary actions.
(4) Transition to the Uniform Formulary. Beginning in Fiscal Year
2005, under an updated charter for the DoD P&T Committee, the committee
shall meet at least quarterly to review therapeutic classes of
pharmaceutical agents and make recommendations concerning which
pharmaceutical agents should be on the Uniform Formulary, the Basic Care
Formulary (BCF), and Extended Core Formulary (ECF). The P&T Committee
will review the classes in a methodical, but expeditious manner. During
the transition period from the previous methodology of formulary
management involving only the MTFs and the TMOP Program, previous
decisions by the predecessor DoD P&T Committee concerning MTF and Mail
Order Pharmacy Program formularies shall continue in effect. As
therapeutic classes are reviewed under the new formulary management
process, the processes established by this section shall apply.
(5) Administrative procedure for newly approved drugs. In the case
of a newly approved innovator drug, other than a generic drug, the
innovator drug will, not later than 120 days after the date of approval
by the Food and Drug Administration, be added to the uniform formulary
unless prior to that date the P&T Committee has recommended that the
agent be listed as a non-formulary drug. If the Director, DHA
subsequently approves that recommendation, the drug will be so listed.
If the Director, DHA disapproves the recommendation to list the drug as
non-formulary Third Tier, the drug will be then classified per the
Director's decision. If, prior to the expiration of 120 days, the P&T
Committee recommends that the agent be added to the uniform formulary
and the recommendation is approved by the Director, DHA, that will be
done as soon as feasible. Pending action under this paragraph (g)(5),
the newly approved pharmaceutical agent will be considered to be in a
classification pending status and will be available to beneficiaries
under Third Tier terms applicable to all other non-formulary agents.
(h) Obtaining pharmacy services under the retail network pharmacy
benefits program. --(1) Points of service. There are four outpatient
pharmacy points of service:
(i) Military Treatment Facilities (MTFs);
(ii) Retail network pharmacies: Those are non-MTF pharmacies that
are a part of the network established for TRICARE retail pharmacy
services;
(iii) Retail non-network pharmacies: Those are non-MTF pharmacies
that are not part of the network established for TRICARE retail pharmacy
services, and
(iv) the TRICARE Mail Order Pharmacy (TMOP).
(2) Availability of formulary pharmaceutical agents--(i) General.
Subject to paragraphs (h)(2)(ii) and (h)(2)(iii) of this section,
formulary pharmaceutical agents are available under the Pharmacy
Benefits Program from all points of service identified in paragraph
(h)(1) of this section.
(ii) Availability of formulary pharmaceutical agents at military
treatment facilities (MTF). Pharmaceutical agents included on the
uniform formulary are available through facilities of uniformed
services, consistent with the scope of health care services offered in
such facilities and additional determinations by the P&T Committee of
the relative clinical effectiveness and cost effectiveness, based on
costs to the Program associated with providing the agents to
beneficiaries. The BCF is a subset of the uniform formulary and is a
mandatory component of formularies at all full-service MTF pharmacies.
[[Page 349]]
The BCF contains the minimum set of pharmaceutical agents that each
full-service MTF pharmacy must have on its formulary to support the
primary care scope of practice for Primary Care Manager enrollment
sites. Limited-service MTF pharmacies (e.g., specialty pharmacies within
an MTF or pharmacies servicing only active duty military members) are
not required to include the entire BCF on their formularies, but may
limit their formularies to those BCF agents appropriate to the needs of
the patients they serve. An ECF may list preferred agents in drug
classes other than those covered by the BCF. Among BCF and ECF agents,
individual MTF formularies are determined by local P&T Committees based
on the scope of health care services provided at the respective MTFs.
All pharmaceutical agents on the local formulary of full-service MTF
pharmacies must be available to all categories of beneficiaries.
(iii) Pharmaceutical agents prescribed for smoking cessation are not
available for coverage when obtained through a retail pharmacy. This
includes network and non-network retail pharmacies.
(3) Availability of non-formulary pharmaceutical agents--(i)
General. Non-formulary pharmaceutical agents are generally not available
in military treatment facilities or in the retail point of service. They
are available in the mail order program.
(ii) Availability of non-formulary pharmaceutical agents at military
treatment facilities. Even when particular non-formulary agents are not
generally available at military treatment facilities, they will be made
available to eligible covered beneficiaries through the non-formulary
special approval process as noted in this paragraph (h)(3)(ii) when
there is a valid medical necessity for use of the non-formulary
pharmaceutical agent.
(iii) Availability of clinically appropriate non-formulary
pharmaceutical agents to members of the Uniformed Services. The pharmacy
benefits program is required to assure the availability of clinically
appropriate pharmaceutical agents to members of the uniformed services,
including, where appropriate, agents not included on the uniform
formulary. Clinically appropriate pharmaceutical agents will be made
available to members of the Uniformed Services, including, where medical
necessity has been validated, agents not included on the uniform
formulary. MTFs shall establish procedures to evaluate the clinical
necessity of prescriptions written for members of the uniformed services
for pharmaceutical agents not included on the uniform formulary. If it
is determined that the prescription is clinically necessary, the MTF
will provide the pharmaceutical agent to the member.
(iv) Availability of clinically appropriate pharmaceutical agents to
other eligible beneficiaries at retail pharmacies or the TMOP. Eligible
beneficiaries will receive non-formulary pharmaceutical agents at the
formulary cost-share when medical necessity has been established by the
beneficiary and/or his/her provider. The peer review provisions of Sec.
199.15 shall apply to the clinical necessity pre-authorization
determinations. TRICARE may require that the time for review be
expedited under the pharmacy benefits program.
(4) Availability of vaccines/immunizations. This paragraph (h)(4)
applies to the following three immunizations: H1N1 vaccine, seasonal
influenza vaccine, and pneumococcal vaccine. A retail network pharmacy
may be an authorized provider under the Pharmacy Benefits Program when
functioning within the scope of its state laws to provide authorized
vaccines/immunizations to an eligible beneficiary. The Pharmacy Benefits
Program will cover the vaccine and its administration by the retail
network pharmacy, including administration by pharmacists who meet the
applicable requirements of state law to administer the vaccine. A
TRICARE authorized vaccine/immunization includes vaccines/immunizations
authorized as preventive care under the basic program benefits of Sec.
199.4 of this Part, as well as such care authorized for Prime enrollees
under the uniform HMO benefit of section 199.18. For Prime enrollees
under the uniform HMO benefit, a referral is not required under
paragraph (n)(2) of
[[Page 350]]
Sec. 199.18 for preventive care vaccines/immunizations received from a
retail network pharmacy that is a TRICARE authorized provider. Any
additional policies, instructions, procedures, and guidelines
appropriate for implementation of this benefit may be issued by the TMA
Director, or designee.
(5) Availability of selected over-the-counter (OTC) drugs under the
pharmacy benefits program. Although the pharmacy benefits program
generally covers only prescription drugs, in some cases over-the-counter
drugs may be covered and may be placed on the uniform formulary.
(i) An OTC drug may be included on the uniform formulary upon the
recommendation of the Pharmacy and Therapeutics Committee and approval
of the Director, DHA, based on a finding that it is cost-effective and
clinically effective, as compared with other drugs in the same
therapeutic class of pharmaceutical agents. Clinical need is judged by
the criteria found in paragraph (e)(1)(i) and (ii) of this section. Cost
effectiveness is determined based on criteria found in paragraph (e)(2)
of this section.
(ii) OTC drugs placed on the uniform formulary, in general, will be
treated the same as generic drugs on the uniform formulary for purposes
of availability in MTF pharmacies, retail pharmacies, and the mail order
pharmacy program and other requirements. However, upon the
recommendation of the Pharmacy and Therapeutics Committee and approval
of the Director, DHA, the requirement for a prescription may be waived
for a particular OTC drug for certain emergency care treatment
situations. In addition, a special copayment may be established under
paragraph (i)(2)(xii) of this section for OTC drugs specifically used in
certain emergency care treatment situations.
(i) Cost-sharing requirements under the pharmacy benefits program--
(1) General. Under 10 U.S.C. 1074g(a)(6), cost-sharing requirements are
established in this section for the pharmacy benefits program
independent of those established under other provisions of this Part.
Cost-shares under this section partially defray government costs of
administering the pharmacy benefits program when collected by the
government for prescriptions dispensed through the retail network
pharmacies or the TRICARE Mail Order Pharmacy. The higher cost-share
paid for prescriptions dispensed by a non-network retail pharmacy is
established to encourage the use of the most economical venue to the
government. Cost-sharing requirements are based on the classification of
a pharmaceutical agent as generic, formulary, or non-formulary, in
conjunction with the point of service from which the agent is acquired.
(2) Cost-sharing amounts. Active duty members of the uniformed
services do not pay cost-shares or annual deductibles. For other
categories of beneficiaries, after applicable annual deductibles are
met, cost-sharing amounts prior to October 1, 2016, are set forth in
this paragraph (i)(2).
(i) For pharmaceutical agents obtained from a military treatment
facility, there is no cost-sharing or annual deductible.
(ii) For pharmaceutical agents obtained from a retail network
pharmacy, the cost share will be as provided in 10 U.S.C. 1074g(a)(6),
except that there is a $0 cost-share for vaccines/immunizations
authorized as preventive care for eligible beneficiaries.
(iii) For formulary and generic pharmaceutical agents obtained from
a retail non-network pharmacy, except as provided in paragraph
(i)(2)(vi) of this section, there is a 20 percent or $20.00 cost-share
(whichever is greater) per prescription for up to a 30-day supply of the
pharmaceutical agent.
(iv) For pharmaceutical agents obtained under the TRICARE mail order
program, the cost share will be as provided in 10 U.S.C. 1074g(a)(6),
except that there is a $0 cost-share for smoking cessation
pharmaceutical agents covered under the smoking cessation program.
(v) [Reserved]
(vi) For TRICARE Prime beneficiaries there is no annual deductible
applicable for pharmaceutical agents obtained from retail network
pharmacies or the TRICARE mail-order program. However, for TRICARE Prime
beneficiaries who obtain formulary or
[[Page 351]]
generic pharmaceutical agents from retail non-network pharmacies, an
enrollment year deductible of $300 per person and $600 per family must
be met after which there is a beneficiary cost-share of 50 percent per
prescription for up to a 30-day supply of the pharmaceutical agent.
(vii) For TRICARE Select beneficiaries the annual deductible which
must be met before the cost-sharing amounts for pharmaceutical agents in
paragraph (i)(2) of this section are applicable is as provided for each
category of TRICARE Select enrollee in Sec. 199.17(l)(2).
(viii) For TRICARE beneficiaries not otherwise qualified to enroll
in TRICARE Prime or Select, the annual deductible which must be met
before the cost-sharing amounts for pharmaceutical agents in paragraph
(i)(2) of this section are applicable is as provided in Sec. 199.4(f).
(ix) The TRICARE catastrophic cap limits apply to pharmacy benefits
program cost-sharing.
(x) For any year after 2027, the cost-sharing amounts under this
paragraph shall be equal to the cost-sharing amounts for the previous
year adjusted by an amount, if any, determined by the Director to
reflect changes in the costs of pharmaceutical agents and prescription
dispensing, rounded to the nearest dollar. These cost changes, if any,
will consider costs under the TRICARE pharmacy benefits program
calculated separately for each of the following categories based on
prescriptions filled in the most recent period for which TRICARE cost
data are available, updated to the current year, if necessary, by
appropriate industry data:
(A) Generic drugs in the retail point of service;
(B) Formulary drugs in the retail point of service;
(C) Generic drugs in the mail order point of service;
(D) Formulary drugs in the mail order point of service;
(E) Non-formulary drugs.
(xi) For a Medicare-eligible beneficiary, the cost-sharing
requirements may not be in excess of the cost-sharing requirements
applicable to all other beneficiaries covered by 10 U.S.C. 1086.
(xii) Special copayment rule for OTC drugs in the retail pharmacy
network. As a general rule, OTC drugs placed on the uniform formulary
under paragraph (h)(5) of this section will have copayments equal to
those for generic drugs on the uniform formulary. However, upon the
recommendation of the Pharmacy and Therapeutics Committee and approval
of the Director, DHA, the copayment may be established at $0.00 for any
particular OTC drug in the retail pharmacy network.
(3) Special cost-sharing rule when there is a clinical necessity for
use of a non-formulary pharmaceutical agent. (i) When there is a
clinical necessity for the use of a non-formulary pharmaceutical agent
that is not otherwise excluded as a covered benefit, the pharmaceutical
agent will be provided at the same co-payment as a formulary
pharmaceutical agent can be obtained.
(ii) A clinical necessity for use of a non-formulary pharmaceutical
agent is established when the beneficiary or their provider submits
sufficient information to show that one or more of the following
conditions exist:
(A) The use of formualry pharmaceutical agents is contraindicated;
(B) The patient experiences significant adverse effects from
formulary pharmaceutical agents, or the provider shows that the patient
is likely to experience significant adverse effects from formulary
pharmaceutical agents;
(C) Formulary pharmaceutical agents result in therapeutic failure,
or the provider shows that the formulary pharmaceutical agent is likely
to result in therapeutic failure;
(D) The patient previously responded to a non-formulary
pharmaceutical agent and changing to a formulary pharmaceutical agent
would incur unacceptable clinical risk; or
(E) There is no alternative pharmaceutical agent on the formulary.
(iii) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent should be provided to TRICARE for
prescriptions submitted to a retail network pharmacy.
(iv) Information to establish clinical necessity for use of a non-
formulary
[[Page 352]]
pharmaceutical agent should be provided as part of the claims processes
for non-formulary pharmaceutical agents obtained through non-network
points of service, claims as a result of other health insurance, or any
other situations requiring the submission of a manual claim.
(v) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent may be provided with the prescription
submitted to the TMOP contractor.
(vi) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent may also be provided at a later date, but
no later than sixty days from the dispensing date, as an appeal to
reduce the non-formulary co-payment to the same co-payment as a
formulary drug.
(vii) The process of establishing clinical necessity will not
unnecessarily delay the dispensing of a prescription. In situations
where clinical necessity cannot be determined in a timely manner, the
non-formulary pharmaceutical agent will be dispensed at the non-
formulary co-payment and a refund provided to the beneficiary should
clinical necessity be established.
(viii) Peer review and appeal and hearing procedures. All levels of
peer review, appeals, and grievances established by the Contractor for
internal review shall be exhausted prior to forwarding to TRICARE
Management Activity for a formal review. Procedures comparable to those
established under Sec. Sec. 199.15 and 199.10 of this part shall apply.
If it is determined that the prescription is clinically necessary, the
pharmaceutical agent will be provided to the beneficiary at the
formulary cost-share. TRICARE may require that the time periods for peer
review or for appeal and hearing be expedited under the pharmacy
benefits program. For purposes of meeting the amount in dispute
requirement of Sec. 199.10(a)(7), the relevant amount is the difference
between the cost shares of a formulary versus non-formulary drug. The
amount for each of multiple prescriptions involving the same drug to
treat the same medical condition and filled within a 12-month period may
be combined to meet the required amount in dispute.
(j) Use of generic drugs under the pharmacy benefits program. (1)
The designation of a drug as a generic, for the purpose of applying
cost-shares at the generic rate, will be determined through the use of
standard pharmaceutical references as part of commercial best business
practices. Pharmaceutical agents will be designated as generics when
listed with an ``A'' rating in the current Approved Drug Products with
Therapeutic Equivalence Evaluations (Orange Book) published by the Food
and Drug Administration, or any successor to such reference. Generics
are multisource products that must contain the same active ingredients,
are of the same dosage form, route of administration and are identical
in strength or concentration.
(2) The pharmacy benefits program generally requires mandatory
substitution of generic drugs listed with an ``A'' rating in the current
Approved Drug Products with Therapeutic Equivalence Evaluations (Orange
Book) published by the FDA and generic equivalents of grandfather or
Drug Efficacy Study Implementation (DESI) category drugs for brand name
drugs. In cases in which there is a clinical justification for a brand
name drug in lieu of a generic equivalent, under the standards and
procedures of paragraph (h)(3) of this section, the generic substitution
policy is waived.
(3) When a blanket purchase agreement, incentive price agreement,
Government contract, or other circumstances results in a brand
pharmaceutical agent being the most cost effective agent for purchase by
the Government, the Pharmacy and Therapeutics Committee may also
designate that the drug be cost-shared at the generic rate.
(4) Upon the recommendation of the Pharmacy and Therapeutics
Committee, a generic drug may be classified as non-formulary if it is
less cost effective than non-generic formulary drugs in the same drug
class.
(5) The beneficiary copayment amount for any generic drug
prescription may not exceed the total charge for that prescription.
(k) Preauthorization of certain pharmaceutical agents. (1) Selected
pharmaceutical agents may be subject to prior
[[Page 353]]
authorization or utilization review requirements to assure medical
necessity, clinical appropriateness and/or cost effectiveness.
(2) The Pharmacy and Therapeutics Committee will assess the need to
prior authorize a given agent by considering the relative clinical and
cost effectiveness of pharmaceutical agents within a therapeutic class.
Pharmaceutical agents that require prior authorization will be
identified by a majority vote of the Pharmacy and Therapeutics
Committee. The Pharmacy and Therapeutics Committee will establish the
prior authorization criteria for the pharamaceutical agent.
(3) Prescriptions for pharmaceutical agents for which prior
authorization criteria are not met will not be cost-shared under the
TRICARE pharmacy benefits program.
(4) The Director, TRICARE Management Activity, may issue policies,
procedures, instructions, guidelines, standards or criteria to implement
this paragraph (k).
(l) TRICARE Senior Pharmacy Program. Section 711 of the Floyd D.
Spence National Defense Authorization Act for Fiscal Year 2001 (Public
Law 106-398, 114 Stat. 1654A-175) established the TRICARE Senior
Pharmacy Program for Medicare eligible beneficiaries effective April 1,
2001. These beneficiaries are required to meet the eligibility criteria
as prescribed in Sec. 199.3 of this part. The benefit under the TRICARE
Senior Pharmacy Program applies to prescription drugs and medicines
provided on or after April 1, 2001.
(m) Effect of other health insurance. The double coverage rules of
section 199.8 of this part are applicable to services provided under the
pharmacy benefits program. For this purpose, the Medicare prescription
drug benefit under Medicare Part D, prescription drug benefits provided
under Medicare Part D plans are double coverage plans and such plans
will be the primary payer, to the extent described in section 199.8 of
this part. Beneficiaries who elect to use these pharmacy benefits shall
provide DoD with other health insurance information.
(n) Procedures. The Director, TRICARE Management Activity shall
establish procedures for the effective operation of the pharmacy
benefits program. Such procedures may include restrictions of the
quantity of pharmaceuticals to be included under the benefit,
encouragement of the use of generic drugs, implementation of quality
assurance and utilization management activities, and other appropriate
matters.
(o) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the
Department of Defense has determined that in the administration of 10
U.S.C. chapter 55, preemption of State and local laws relating to health
insurance, prepaid health plans, or other health care delivery or
financing methods is necessary to achieve important Federal interests,
including but not limited to the assurance of uniform national health
programs for military families and the operation of such programs at the
lowest possible cost to the Department of Defense, that have a direct
and substantial effect on the conduct of military affairs and national
security policy of the United States.
(2) Based on the determination set forth in paragraph (o)(1) of this
section, any State or local law relating to health insurance, prepaid
health plans, or other health care delivery or financing methods is
preempted and does not apply in connection with TRICARE pharmacy
contracts. Any such law, or regulation pursuant to such law, is without
any force or effect, and State or local governments have no legal
authority to enforce them in relation to the TRICARE pharmacy contracts.
However, the Department of Defense may by contract establish legal
obligations on the part of TRICARE contractors to conform with
requirements similar or identical to requirements of State or local laws
or regulations.
(3) The preemption of State and local laws set forth in paragraph
(o)(1) of this section includes State and local laws imposing premium
taxes on health or dental insurance carriers or underwriters or other
plan managers, or similar taxes on such entities. Such laws are laws
relating to health insurance, prepaid health plans, or other health care
delivery or financing methods, within the meaning of the statutes
identified in paragraph (o)(1) of this
[[Page 354]]
section. Preemption, however, does not apply to taxes, fees, or other
payments on net income or profit realized by such entities in the
conduct of business relating to DoD pharmacy services contracts, if
those taxes, fees or other payments are applicable to a broad range of
business activity. For purposes of assessing the effect of Federal
preemption of State and local taxes and fees in connection with DoD
pharmacy services contracts, interpretations shall be consistent with
those applicable to the Federal Employees Health Benefits Program under
5 U.S.C. 8909(f).
(p) General fraud, abuse, and conflict of interest requirements
under TRICARE pharmacy benefits program. All fraud, abuse, and conflict
of interest requirements for the basic CHAMPUS program, as set forth in
this part 199 (see applicable provisions of Sec. 199.9 of this part)
are applicable to the TRICARE pharmacy benefits program. Some methods
and procedures for implementing and enforcing these requirements may
differ from the methods and procedures followed under the basic CHAMPUS
program.
(q) Pricing standards for retail pharmacy program--(1) Statutory
requirement. (i) As required by 10 U.S.C. 1074g(f), with respect to any
prescription filled on or after the date of the enactment of the
National Defense Authorization Act for Fiscal Year 2008, the TRICARE
retail pharmacy program shall be treated as an element of the DoD for
purposes of the procurement of drugs by Federal agencies under 38 U.S.C.
8126 to the extent necessary to ensure pharmaceuticals paid for by the
DoD that are provided by pharmacies under the program to eligible
covered beneficiaries under this section are subject to the pricing
standards in such section 8126.
(ii) Under paragraph (q)(1)(i) of this section, all covered drug
TRICARE retail pharmacy network prescriptions are subject to Federal
Ceiling Prices under 38 U.S.C. 8126.
(2) Manufacturer written agreement. (i) A written agreement by a
manufacturer to honor the pricing standards required by 10 U.S.C.
1074g(f) and referred to in paragraph (q)(1) of this section for
pharmaceuticals provided through retail network pharmacies shall with
respect to a particular covered drug be a condition for:
(A) Inclusion of that drug on the uniform formulary under this
section; and
(B) Availability of that drug through retail network pharmacies
without preauthorization under paragraph (k) of this section.
(ii) A covered drug not under an agreement under paragraph (q)(2)(i)
of this section requires preauthorization under paragraph (k) of this
section to be provided through a retail network pharmacy under the
Pharmacy Benefits Program. This preauthorization requirement does not
apply to other points of service under the Pharmacy Benefits Program.
(iii) For purposes of this paragraph (q)(2), a covered drug is a
drug that is a covered drug under 38 U.S.C. 8126, but does not include:
(A) A drug that is not a covered drug under 38 U.S.C. 8126;
(B) A drug provided under a prescription that is not covered by 10
U.S.C. 1074g(f);
(C) A drug that is not provided through a retail network pharmacy
under this section;
(D) A drug provided under a prescription which the TRICARE Pharmacy
Benefits Program is the second payer under paragraph (m) of this
section;
(E) A drug provided under a prescription and dispensed by a pharmacy
under section 340B of the Public Health Service Act; or
(F) Any other exception for a drug, consistent with law, established
by the Director, TMA.
(iv) The requirement of this paragraph (q)(2) may, upon the
recommendation of the Pharmacy and Therapeutics Committee, be waived by
the Director, TMA if necessary to ensure that at least one drug in the
drug class is included on the Uniform Formulary. Any such waiver,
however, does not waive the statutory requirement referred to in
paragraph (q)(1) that all covered TRICARE retail network pharmacy
prescriptions are subject to Federal Ceiling Prices under 38 U.S.C.
8126; it only waives the exclusion from the Uniform Formulary of drugs
not covered by agreements under this paragraph (q)(2).
[[Page 355]]
(3) Refund procedures. (i) Refund procedures to ensure that
pharmaceuticals paid for by the DoD that are provided by retail network
pharmacies under the pharmacy benefits program are subject to the
pricing standards referred to in paragraph (q)(1) of this section shall
be established. Such procedures may be established as part of the
agreement referred to in paragraph (q)(2), or in a separate agreement,
or pursuant to Sec. 199.11.
(ii) The refund procedures referred to in paragraph (q)(3)(i) of
this section shall, to the extent practicable, incorporate common
industry practices for implementing pricing agreements between
manufacturers and large pharmacy benefit plan sponsors. Such procedures
shall provide the manufacturer at least 70 days from the date of the
submission of the TRICARE pharmaceutical utilization data needed to
calculate the refund before the refund payment is due. The basis of the
refund will be the difference between the average non-federal price of
the drug sold by the manufacturer to wholesalers, as represented by the
most recent annual non-Federal average manufacturing prices (non-FAMP)
(reported to the Department of Veterans Affairs (VA)) and the
corresponding FCP or, in the discretion of the manufacturer, the
difference between the FCP and direct commercial contract sales prices
specifically attributable to the reported TRICARE paid pharmaceuticals,
determined for each applicable NDC listing. The current annual FCP and
the annual non-FAMP from which it was derived will be applicable to all
prescriptions filled during the calendar year.
(iii) A refund due under this paragraph (q) is subject to Sec.
199.11 of this part and will be treated as an erroneous payment under
that section.
(A) A manufacturer may under section 199.11 of this part request
waiver or compromise of a refund amount due under 10 U.S.C. 1074g(f) and
this paragraph (q).
(B) During the pendency of any request for waiver or compromise
under paragraph (q)(3)(iii)(A) of this section, a manufacturer's written
agreement under paragraph (q)(2) shall be deemed to exclude the matter
that is the subject of the request for waiver or compromise. In such
cases the agreement, if otherwise sufficient for the purpose of the
condition referred to in paragraph (q)(2), will continue to be
sufficient for that purpose. Further, during the pendency of any such
request, the matter that is the subject of the request shall not be
considered a failure of a manufacturer to honor a requirement or an
agreement for purposes of paragraph (q)(4).
(C) In addition to the criteria established in Sec. 199.11, a
request for waiver may also be premised on the voluntary removal by the
manufacturer in writing of a drug from coverage in the TRICARE Pharmacy
Benefit Program.
(iv) In the case of disputes by the manufacturer of the accuracy of
TMA's utilization data, a refund obligation as to the amount in dispute
will be deferred pending good faith efforts to resolve the dispute in
accordance with procedures established by the Director, TMA. If the
dispute is not resolved within 60 days, the Director, TMA will issue an
initial administrative decision and provide the manufacturer with
opportunity to request reconsideration or appeal consistent with
procedures under section 199.10 of this part. When the dispute is
ultimately resolved, any refund owed relating to the amount in dispute
will be subject to an interest charge from the date payment of the
amount was initially due, consistent with section 199.11 of this part.
(4) Remedies. In the case of the failure of a manufacturer of a
covered drug to honor a requirement of this paragraph (q) or to honor an
agreement under this paragraph (q), the Director, TMA, in addition to
other actions referred to in this paragraph (q), may take any other
action authorized by law.
(5) Beneficiary transition provisions. In cases in which a
pharmaceutical is removed from the uniform formulary or designated for
preauthorization under paragraph (q)(2) of this section, the Director,
TMA may for transitional time periods determined appropriate by the
Director or for particular circumstances authorize the continued
availability of the pharmaceutical in the retail pharmacy network or in
MTF pharmacies for some or all beneficiaries as if the pharmaceutical
were still on the uniform formulary.
[[Page 356]]
(r) Refills of maintenance medications for eligible covered
beneficiaries through the mail order pharmacy program--(1) In general.
Consistent with section 702 of the National Defense Authorization Act
for Fiscal Year 2015, this paragraph requires that for non-generic
covered maintenance medications, beneficiaries are generally required to
obtain their prescription through the national mail-order pharmacy
program or through military treatment facility pharmacies. For purposes
of this paragraph, eligible covered beneficiaries are those defined
under sections 1072 and 1086 of title 10, United States Code.
(2) Medications covered. The Director, DHA, will establish,
maintain, and periodically revise and update a list of non-generic
covered maintenance medications subject to the requirement of paragraph
(r)(1) of this section. The current list will be accessible through the
TRICARE Pharmacy Program Internet Web site and by telephone through the
TRICARE Pharmacy Program Service Center. Each medication included on the
list will meet the following requirements:
(i) It will be a medication prescribed for a chronic, long-term
condition that is taken on a regular, recurring basis.
(ii) It will be clinically appropriate to dispense the medication
from the mail order pharmacy.
(iii) It will be cost effective to dispense the medication from the
mail order pharmacy.
(iv) It will be available for an initial filling of a 30-day or less
supply through retail pharmacies.
(v) It will be generally available at military treatment facility
pharmacies for initial fill and refills.
(vi) It will be available for refill through the national mail-order
pharmacy program.
(3) Refills covered. For purposes of the program under paragraph
(r)(1) of this section, a refill is:
(i) A subsequent filling of an original prescription under the same
prescription number or other authorization as the original prescription;
or
(ii) A new original prescription issued at or near the end date of
an earlier prescription for the same medication for the same patient.
(4) Waiver of requirement. A waiver of the general requirement to
obtain maintenance medication prescription refills from the mail order
pharmacy or military treatment facility pharmacy will be granted in the
following circumstances:
(i) There is a blanket waiver for prescription medications that are
for acute care needs.
(ii) There is a blanket waiver for prescriptions covered by other
health insurance.
(iii) There is a case-by-case waiver to permit prescription
maintenance medication refills at a retail pharmacy when necessary due
to personal need or hardship, emergency, or other special circumstance.
This waiver is obtained through an administrative override request to
the TRICARE pharmacy benefits manager under procedures established by
the Director, DHA.
(5) Procedures. Under the program established by paragraph (r)(1) of
this section, the Director, DHA will establish procedures for the
effective operation of the program. Among these procedures are the
following:
(i) The Department will implement the program by utilizing best
commercial practices to the extent practicable.
(ii) An effective communication plan that includes efforts to
educate beneficiaries in order to optimize participation and
satisfaction will be implemented.
(iii) Beneficiaries with active retail prescriptions for a
medication on the maintenance medication list will be notified that
their medication is included under the program. Beneficiaries will be
advised that they may receive two 30 day fill at retail while they
transition their prescription to the mail order program.
(iv) Requests for a third fill at retail will result in 100% patient
cost shares and will be blocked from any TRICARE payments and the
beneficiary advised to call the pharmacy benefits manager (PBM) for
assistance.
(v) The PBM will provide a toll free number to assist beneficiaries
in transferring their prescriptions from retail to the mail order
program. With the beneficiary's permission, the PBM will contact the
physician or other health
[[Page 357]]
care provider who prescribed the medication to assist in transferring
the prescription to the mail order program.
(vi) In any case in which a beneficiary required under paragraph (r)
of this section to obtain a maintenance medication prescription refill
from national mail order pharmacy program and attempts instead to refill
such medications at a retail pharmacy, the PBM will also maintain the
toll free number to assist the beneficiary. This assistance may include
information on how to request a waiver, consistent with paragraph
(r)(4)(iii) of this section, or in taking any other appropriate action
to meet the beneficiary's needs and to implement the program.
(vii) The PBM will ensure that a pharmacist is available at all
times through the toll-free telephone number to answer beneficiary
questions or provide other appropriate assistance.
(6) This program will remain in effect indefinitely with any
adjustments or modifications required by law.
[69 FR 17048, Apr. 1, 2004, as amended at 74 FR 11292, Mar. 17, 2009; 74
FR 55776, Oct. 29, 2009; 74 FR 65438, Dec. 10, 2009; 75 FR 63397, Oct.
15, 2010; 76 FR 41065, July 13, 2011; 78 FR 13241, Feb. 27, 2013; 78 FR
75247, Dec. 11, 2013; 80 FR 46798, Aug. 6, 2015; 80 FR 44272, July 27,
2015; 81 FR 76310, Nov. 2, 2016; 82 FR 45458, Sept. 29, 2017; 83 FR
63577, Dec. 11, 2018]
Editorial Note: At 76 FR 41065, July 13, 2011, Sec. 199.21 was
amended by adding paragraphs (h)(4) and (i)(2)(ii)(D); however, the
amendment could not be incorporated because both paragraphs already
existed.
Sec. 199.22 TRICARE Retiree Dental Program (TRDP).
(a) Establishment. The TRDP is a premium based indemnity dental
insurance coverage program that will be available to certain retirees
and their surviving spouses, their dependents, and certain other
beneficiaries, as specified in paragraph (d) of this section. The TRDP
is authorized by 10 U.S.C. 1076c.
(1) The Director will, except as authorized in paragraph (a)(2) of
this section, make available a premium based indemnity dental insurance
plan for eligible TRDP beneficiaries specified in paragraph (d) of this
section consistent with the provisions of this section.
(2) The TRDP premium based indemnity dental insurance program under
paragraph (a) of this section may be provided by allowing eligible
beneficiaries specified in paragraph (d) of this section to enroll in an
insurance plan under chapter 89A of title 5, United States Code that
provides benefits similar to those benefits provided under paragraph (f)
of this section. Such enrollment shall be authorized pursuant to an
agreement entered into between the Department of Defense and the Office
of Personnel Management which agreement, in the event of any
inconsistency, shall take precedence over provisions in this section.
(b) General provisions. (1) At a minimum, benefits are the
diagnostic services, preventive services, basic restorative services
(including endodontics), oral surgery services, and emergency services
specified in paragraph (f)(1) of this section. Additional services
comparable to those contained in paragraph (e)(2) of Sec. 199.13 may be
covered pursuant to benefit policy decisions made by the Director,
TRICARE Management Activity, or designee.
(2) Premium costs for this coverage will be paid by the enrollee.
(3) Geographic scope. (i) The TRDP is applicable to authorized
providers in the 50 United States and the District of Columbia, Canada,
Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the U.S. Virgin Islands.
(ii) The Assistant Secretary of Defense (Health Affairs) (ASD (HA))
may extend the TRDP to geographic areas other than those specified in
paragraph (b)(3)(i) of this section. In extending the TRDP overseas, the
ASD (HA) is authorized to establish program elements, methods of
administration, and payment rates and procedures that are different from
those in effect for the areas specified in paragraph (b)(3)(i) of this
section to the extent the ASD (HA), or designee, determines necessary
for the effective and efficient operation of the TRDP. These differences
may include, but are not limited to, specific provisions for
preauthorization of care, varying licensure and certification
requirements for foreign providers, and other differences based on
limitations in the availability
[[Page 358]]
and capabilities of the Uniformed Services overseas dental treatment
facilities and a particular nation's civilian sector providers in
certain areas. The Director, TRICARE Management Activity shall issue
guidance, as necessary, to implement the provisions of this paragraph.
TRDP enrollees residing in overseas locations will be eligible for the
same benefits as enrollees residing in the continental United States,
although dental services may not be available or accessible in all
locations.
(4) Except as otherwise provided in this section or by the Assistant
Secretary of Defense (Health Affairs) or designee, the TRDP is
administered in a manner similar to the TRICARE Dental Program under
Sec. 199.13 of this part.
(5) The TRDP shall be administered through a contract.
(c) Except as may be specifically provided in this section, to the
extent terms defined in Sec. 199.2 and Sec. 199.13(b) are relevant to
the administration of the TRICARE Retiree Dental Program, the
definitions contained in Sec. 199.2 and Sec. 199.13(b) shall apply to
the TRDP as they do to TRICARE/CHAMPUS and the TRICARE Dental Program.
(d) Eligibility and enrollment--(1) Eligibility. Enrollment in the
TRICARE Retiree Dental Program is open to:
(i) Members of the Uniformed Services who are entitled to retired
pay, or former members of the armed forces who are Medal of Honor
recipients and who are not otherwise entitled to dental benefits;
(ii) Members of the Retired Reserve under the age of 60;
(iii) Eligible dependents of a member described in paragraph
(d)(1)(i) or paragraph (d)(1)(ii) of this section who are covered by the
enrollment of the member;
(iv) Eligible dependents of a member described in paragraph
(d)(1)(i) or paragraph (d)(1)(ii) of this section when the member is not
enrolled in the program and the member meets at least one of the
conditions in paragraphs (d)(1)(iv)(A) through (C) of this section.
Already enrolled members must satisfy any remaining enrollment
commitment prior to enrollment of dependents becoming effective under
this paragraph, at which time the dependent-only enrollment will
continue on a voluntary basis as specified in paragraph (d)(4) of this
section. Members must provide documentation to the TRDP contractor
giving evidence of compliance with paragraphs (d)(1)(iv)(A), (B), or (C)
of this section at the time of application for enrollment of their
dependents under this paragraph.
(A) The member is enrolled under Section 1705 of Title 38, United
States Code, to receive ongoing, comprehensive dental care from the
Department of Veterans Affairs pursuant to Section 1712 of Title 38,
United States Code, and 38 CFR 17.93, 17.161, or 17.166. Authorization
of such dental care must be confirmed in writing by the Department of
Veterans Affairs.
(B) The member is enrolled in a dental plan that is available to the
member as a result of employment of the member that is separate from the
Uniformed Service of the member, and the dental plan is not available to
dependents of the member as a result of such separate employment by the
member. Enrollment in this dental plan and the exclusion of dependents
from enrollment in the plan must be confirmed by documentation from the
member's employer or the dental plan's administrator.
(C) The member is prevented by a current and enduring medical or
dental condition from being able to obtain benefits under the TRDP. The
specific medical or dental condition and reason for the inability to use
the program's benefits over time, if not apparent based on the
condition, must be documented by the member's physician or dentist.
(v) The unremarried surviving spouse and eligible child dependents
of a deceased member who died while in status described in paragraph
(d)(1)(i) or paragraph (d)(1)(ii) of this section; the unremarried
surviving spouse and eligible child dependents who receive a surviving
spouse annuity; or the unremarried surviving spouse and eligible child
dependents of a deceased member who died while on active duty for a
period of more than 30 days and whose eligible dependents are not
eligible or no longer for the TRICARE Dental Program.
[[Page 359]]
Note to paragraphs (d)(1)(iii), (d)(1)(iv), and (d)(1)(v): Eligible
dependents of Medal of Honor recipients are described in Sec.
199.3(b)(2)(i) (except for former spouses) and Sec. 199.3(b)(2)(ii)
(except for a child placed in legal custody of a Medal of Honor
recipient under Sec. 199.3(b)(2)(ii)(H)(4)).
(2) Notification of eligibility. The contractor will notify persons
eligible to receive dental benefits under the TRICARE Retiree Dental
Program.
(3) Election of coverage. In order to initiate dental coverage,
election to enroll must be made by the member or eligible dependent.
Enrollment in the TRICARE Retiree Dental Program is voluntary and will
be accomplished by submission of an application to the TRDP contractor.
(4) Enrollment periods--(i) Enrollment period for basic benefits.
The initial enrollment for the basic dental benefits described in
paragraph (f)(1) of this section shall be for a period of 24 months
followed by month-to-month enrollment as long as the enrollee remains
eligible and chooses to continue enrollment. An enrollee's disenrollment
from the TRDP at any time for any reason, including termination for
failure to pay premiums, is subject to a lockout period of 12 months.
After any lockout period, eligible individuals may elect to reenroll and
are subject to a new initial enrollment period. The enrollment periods
and conditions stipulated in this paragraph apply only to the basic
benefit coverage described in paragraph (f)(1) of this section.
Effective with the implementation of an enhanced benefit program, new
enrollments for basic coverage will cease. Enrollees in the basic
program at that time may continue their enrollment for basic coverage,
subject to the applicable provisions of this section, as long as the
contract administering that coverage is in effect.
(ii) Enrollment period for enhanced benefits. The initial enrollment
period for enhanced benefit coverage described in paragraph (f)(2) of
this section shall be established by the Director, TMA, or designee, to
be a period of not less than 12 months and not more than 24 months. The
initial enrollment period shall be followed by renewal enrollment
periods of up to 12 months as long as the enrollee chooses to continue
enrollment and remains eligible. An enrollee who chooses not to continue
enrollment upon completion of an enrollment period may re-enroll at any
time. However, an enrollee who is disenrolled from the TRDP before
completion of an initial or subsequent enrollment period for reasons
other than those in paragraphs in (d)(5)(ii)(A) and (B) of this section
shall incur a lockout period of 12 months before re-enrollment can
occur. Former enrollees who re-enroll following a lockout period or
following a period of disenrollment after completion of an enrollment
period must comply with all provisions that apply to new enrollees,
including a new enrollment commitment.
(5) Termination of coverage--(i) Involuntary termination. TRDP
coverage is terminated when the member's entitlement to retired pay is
terminated, the member's status as a member of the Retired Reserve is
terminated, a dependent child loses eligible child dependent status, or
a surviving spouse remarries.
(ii) Voluntary termination. All enrollee requests for termination of
TRDP coverage before the completion of an enrollment period shall be
submitted to the TRDP contractor for determination of whether the
enrollee qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or
(B) of this section.
(A) Enrollment grace period. Regardless of the reason, TRDP coverage
shall be cancelled, or otherwise terminated, upon request from an
enrollee if the request is received by the TRDP contractor within 30
calendar days following the enrollment effective date and there has been
no use of TRDP benefits under the enrollment during that period. If such
is the case, the enrollment is voided and all premium payments are
refunded. However, use of benefits during this 30-day enrollment grace
period constitutes acceptance by the enrollee of the enrollment and the
enrollment period commitment. In this case, a request for termination of
enrollment under paragraph (d)(5)(ii)(A) of this section will not be
honored, and premiums will not be refunded.
(B) Extenuating circumstances. Under limited circumstances, TRDP
enrollees shall be disenrolled by the contractor before the completion
of an enrollment period commitment upon request by an
[[Page 360]]
enrollee if the enrollee submits written, factual documentation that
independently verifies that one of the following extenuating
circumstances occurred during the enrollment period. In general, the
circumstances must be unforeseen and long-term and must have originated
after the effective date of TRDP coverage.
(1) The enrollee is prevented by a serious medical condition from
being able to utilize TRDP benefits,
(2) The enrollee would suffer severe financial hardship by
continuing TRDP enrollment; or
(3) Any other circumstances which the Secretary considers
appropriate.
(C) Effective date of voluntary termination. For cases determined to
qualify for disenrollment under the grace period provisions in paragraph
(d)(5)(ii)(A) of this section, enrollment is completely nullified
effective from the beginning date of coverage. For cases determined to
qualify for disenrollment under the extenuating circumstances provisions
in paragraph (d)(5)(ii)(B) of this section, the effective date of
disenrollment is the first of the month following the contractor's
initial determination on the disenrollment request or the first of the
month following the last use of TRDP benefits under the enrollment,
whichever is later.
(D) Appeal process for denied voluntary enrollment termination. An
enrollee has the right to appeal the contractor's determination that a
disenrollment request does not qualify under paragraphs (d)(5)(ii)(A) or
(B) of this section. The enrollee may appeal that determination by
submitting a written appeal to the TMA, Office of Appeals and Hearings,
with a copy of the contractor's determination notice and relevant
documentation supporting the disenrollment request. This appeal must be
received by TMA within 60 days of the date on the contractor's
determination notice. The burden of proof is on the enrollee to
establish affirmatively by substantial evidence that the enrollee
qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or (B) of
this section. TMA will issue written notification to the enrollee and
the contractor of its appeal determination within 60 days from the date
of receipt of the appeal request. That determination is final.
(6) Continuation of dependents' enrollment upon death of enrollee.
Coverage of a dependent in the TRDP under an enrollment of a member or
surviving spouse who dies during the period of enrollment shall continue
until the end of that period and may be renewed by (or for) the
dependent, so long as the premium paid is sufficient to cover
continuation of the dependent's enrollment. Coverage may be terminated
when the premiums paid are no longer sufficient to cover continuation of
the enrollment.
(e) Premium payments. Persons enrolled in the dental plan will be
responsible for paying the full cost of the premiums in order to obtain
the dental insurance.
(1) Premium payment method. The premium payment may be collected
pursuant to procedures established by the Assistant Secretary of Defense
(Health Affairs) or designee.
(2) Effects of failure to make premium payments. Failure to make
premium payments will result in the enrollee's disenrollment from the
TRDP and a lockout period of 12 months. Following this period of time,
eligible individuals will be able to re-enroll.
(3) Member's payment of premiums. The cost of the TRDP monthly
premium will be paid by the enrollee. Interested beneficiaries may
contact the dental contractor-insurer to obtain the enrollee premium
cost.
(f) Plan benefits. The Director, TRICARE Management Activity, or
designee, may modify the services covered by the TRDP to the extent
determined appropriate based on developments in common dental care
practices and standard dental programs. In addition, the Director,
TRICARE Management Activity, or designee, may establish such exclusions
and limitations as are consistent with those established by dental
insurance and prepayment plans to control utilization and quality of
care for the services and items covered by the TRDP.
(1) The minimum TRDP benefit is basic dental care to include
diagnostic services, preventive services, restorative services,
endodontic services,
[[Page 361]]
periodontic services, oral surgery services, and other general services.
The following is the minimum TRDP covered dental benefit:
(i) Diagnostic services.
(A) Clinical oral examinations.
(B) Radiographs and diagnostic imaging.
(C) Tests and laboratory examinations.
(ii) Preventive services.
(A) Dental prophylaxis.
(B) Topical fluoride treatment (office procedure).
(C) Sealants.
(D) Other preventive services.
(E) Space maintenance.
(iii) Restorative services.
(A) Amalgam restorations.
(B) Resin-based composite restorations.
(C) Other restorative services.
(iv) Endodontic services.
(A) Pulp capping.
(B) Pulpotomy and pulpectomy.
(C) Root canal therapy.
(D) Apexification and recalcification procedures.
(E) Apicoectomy and periradicular services.
(F) Other endodontic procedures.
(v) Periodontic Services.
(A) Surgical services.
(B) Periodontal services.
(vi) Oral surgery.
(A) Extractions.
(B) Surgical extractions.
(C) Alveoloplasty.
(D) Biopsy.
(E) Other surgical procedures.
(vii) Other general services.
(A) Palliative (emergenery) treatment of dental pain.
(B) Therapeutic drug injection.
(C) Other drugs and/or medicaments.
(D) Treatment of postsurgical complications.
(2) Enhanced benefits. In addition to the minimum TRDP services in
paragraph (f)(1) of this section, other services that are comparable to
those contained in paragraph (e)(2) of Sec. 199.13 may be covered
pursuant to TRDP benefit policy decisions made by the Director,
OCHAMPUS, or designee. In general, these include additional diagnostic
and preventive services, major restorative services, prosthodontics
(removable and fixed), additional oral surgery services, orthodontics,
and additional adjunctive general services (including general anesthesia
and intravenous sedation). Enrollees in the basis plan will be given an
enrollment option at the time the enhanced plan is implemented.
(3) Alternative course of treatment policy. The Director, TRICARE
Management Activity, or designee, may establish, in accordance with
generally accepted dental benefit practices, an alternative course of
treatment policy which provides reimbursement in instances where the
dentist and TRDP enrollee select a more expensive service, procedure, or
course of treatement than in customarily provided. The alternative
course of treatment policy must meet the following conditions:
(i) The service, procedure, or course of treatment must be
consistent with sound professional standards of generally accepted
dental practice for the dental condition concerned.
(ii) The service, procedure, or course of treatment must be a
generally accepted alternative for a service or procedure covered by the
TRDP for the dental condition.
(iii) Payment for the alternative service or procedure may not
exceed the lower of the prevailing limits for the alternative procedure,
the prevailing limits or dental plan contractor's scheduled allowance
for the otherwise authorized benefit procedure for which the alternative
is substituted, or the actual charge for the alternative procedure.
(g) Maximum coverage amounts. Each enrollee is subject to an annual
maximum coverage amount for non-orthodontic dental benefits and, if an
orthodontic benefit is offered, a lifetime maximum coverage amount for
orthodontics as established by the Director, TRICARE Management
Activity, or designee.
(h) Annual notification of rates. TRDP premiums will be determined
as part of the competitive contracting process. Information on the
premium rates will be widely distributed.
(i) Authorized providers. The TRDP enrollee may seek covered
services from any provider who is fully licensed and approved to provide
dental care in the state where the provider is located.
[[Page 362]]
(j) Benefit payment. Enrollees are not required to utilize the
special network of dental providers established by the TRDP contractor.
For enrollees who do use these network providers, however, providers
shall not balance bill any amount in excess of the maximum payment
allowable by the TRDP. Enrollees using non-network providers may balance
billed amounts in excess of allowable charges. The maximum payment
allowable by the TRDP (minus the appropriate cost-share) will be the
lesser of:
(1) Billed charges; or
(2) Usual, Customary and Reasonable rates, in which the customary
rate is calculated at the 50th percentile of billed charges in that
geographic area, as measured in an undiscounted charge profile in 1995
or later for that geographic area (as defined by three-digit zip code).
(k) Appeal procedures. All levels of appeal established by the
contractor shall be exhausted prior to an appeal being filed with the
TMA. Procedures comparable to those established for appeal of benefit
determinations under Sec. 199.10 of this part shall apply together with
the procedures for appeal of voluntary disenrollment determinations
described in paragraph (d)(5)(ii)(D) of this section.
(l) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the
Department of Defense has determined that in the administration of
chapter 55 of title 10, U.S. Code, preemption of State and local laws
relating to health insurance, prepaid health plans, or other health care
delivery or financing methods is necessary to achieve important Federal
interests, including but not limited to the assurance of uniform
national health programs for military families and the operation of such
programs at the lowest possible cost to the Department of Defense, that
have a direct and substantial effect on the conduct of military affairs
and national security policy of the United States. This determination is
applicable to the dental services contracts that implement this section.
(2) Based on the determination set forth in paragraph (l)(1) of this
section, any State or local law or regulation pertaining to health or
dental insurance, prepaid health or dental plans, or other health or
dental care delivery, administration, and financing methods is preempted
and does not apply in connection with the TRICARE Retiree Dental Program
contract. Any such law, or regulation pursuant to such law, is without
any force or effect, and State or local governments have no legal
authority to enforce them in relation to the TRICARE Retiree Dental
Program contract. (However, the Department of Defense may, by contract,
establish legal obligations on the part of the TRICARE Retiree Dental
Program contractor to conform with requirements similar to or identical
to requirements of State or local laws or regulations).
(3) The preemption of State and local laws set forth in paragraph
(l)(2) of this section includes State and local laws imposing premium
taxes on health or dental insurance carriers or underwriters or other
plan managers, or similar taxes on such entities. Such laws are laws
relating to health insurance, prepaid health plans, or other health care
delivery or financing methods, within the meaning of section 1103.
Preemption, however, does not apply to taxes, fees, or other payments on
net income or profit realized by such entities in the conduct of
business relating to DoD health services contracts, if those taxes, fees
or other payments are applicable to a broad range of business activity.
For the purposes of assessing the effect of Federal preemption of State
and local taxes and fees in connection with DoD health and dental
services contracts, interpretations shall be consistent with those
applicable to the Federal Employees Health Benefits Program under 5
U.S.C. 8909(f).
(m) Administration. The Assistant Secretary of Defense (Health
Affairs) or designee may establish other rules and procedures for the
administration of the TRICARE Retiree Dental Program.
[62 FR 66993, Dec. 23, 1997, as amended at 65 FR 48913, Aug. 10, 2000;
65 FR 49492, Aug. 14, 2000; 66 FR 9658, Feb. 9, 2001; 67 FR 4354, Jan.
30, 2002; 67 FR 15725, Apr. 3, 2002; 72 FR 54213, Sept. 24, 2007; 72 FR
64537, Nov. 16, 2007; 73 FR 59504, Oct. 9, 2008; 82 FR 45458, Sept. 29,
2017]
[[Page 363]]
Sec. 199.23 Special Supplemental Food Program.
(a) General provisions. This section prescribes guidelines and
policies for the delivery and administration of the Special Supplemental
Food Program for Women, Infants, and Children Overseas (WIC Overseas
Program). The purpose of the WIC Overseas Program is to provide
supplemental foods and nutrition education, at no cost, to eligible
persons and to serve as an adjunct to good health care during critical
times of growth and development, in order to prevent the occurrence of
health problems, including drug and other substance abuse, and to
improve the health status of program participants. The benefit is
similar to the benefit provided under the U.S. Department of Agriculture
(USDA) administered Women, Infants, and Children (WIC) Program.
(b) Definitions. For most definitions applicable to the provisions
of this section, refer to sec. 199.2. The following definitions apply
only to this section:
(1) Applicant. Pregnant women, breastfeeding women, postpartum
women, infants, and children who are applying to receive WIC Overseas
benefits, and the breastfed infants of applicant breastfeeding women.
This term also includes individuals who are currently participating in
the Program but are re-applying because their certification is about to
expire.
(2) Breastfeeding women. Women up to 1-year postpartum who are
breastfeeding their infants. Their eligibility will end on the last day
of the month of their infant's first birthday.
(3) Certification. The implementation of criteria and procedures to
assess and document each applicant's eligibility for the Program.
(4) Children. Persons who have had their first birthday but have not
yet attained their fifth birthday. Their eligibility will end on the
last day of the month of their fifth birthday.
(5) Competent Professional Authority (CPA). An individual on the
staff of the WIC Overseas office authorized to determine nutritional
risk, prescribe supplemental foods, and design nutrition education
programs. The following are authorized to serve as a competent
professional authority: physicians, nutritionists, registered nurses,
and dieticians may serve as a competent professional authority.
Additionally, a CPA may be other persons designated by the regional
program manager who meet the definition of CPA prescribed by the USDA as
being professionally competent to evaluate nutritional risk. The
definition also applies to an individual who is not on the staff of the
WIC Overseas office but who is qualified to provide data upon which
nutritional risk determinations are made by a competent professional
authority on the staff of the local WIC Overseas office.
(6) Contract brand. The brand of a particular food item that has
been competitively selected by the DoD to be the exclusive supplier of
that type of food item to the program.
(7) Date-to-use. The date by which the drafts must be used to
purchase food items.
(8) Department. The Department of Defense (DoD), unless otherwise
noted.
(9) Dependent. (i) A spouse, or (ii) An unmarried child who is:
(A) Under 21 years of age; or
(B) Incapable of self-support because of mental or physical
incapacity and is in fact dependent on the member for more than \1/2\ of
the child's support; or
(C) Is under 23 years of age, is enrolled in a full-time course of
study in an institution of higher education and is in fact dependent on
the member for more than one-half of the child's support.
(10) Drafts. Paper food instruments, similar to vouchers, issued in
the WIC Overseas offices to program participants. Participants may
redeem their drafts at participating commissaries and NEXMARTs for the
types and quantities of foods specified on the face of the draft.
(11) Economic unit. All individuals contributing to or subsidizing
the income of a household, whether they physically reside in that
household or not.
(12) Eligible civilian. An eligible civilian is a person who is not
a member of the armed forces and who is:
(i) A dependent of a member of the armed forces residing with the
member outside the United States, whether or
[[Page 364]]
not that dependent is command sponsored, or
(ii) An employee of a military department who is a national of the
United States and is residing outside the United States in connection
with such individual's employment or a dependent of such individual
residing with the employee outside the United States; or
(iii) An employee of a Department of Defense contractor who is a
national of the United States and is residing outside the United States
in connection with such individual's employment or a dependent of such
individual residing with the employee outside the United States.
(13) Family. A group of related or non-related individuals who are
one economic unit.
(14) Hematological test. A test of an applicant's or participant's
blood as described in 7 CFR part 246.7(e).
(15) Income guidelines. Income poverty guidelines published by the
U.S. DHHS. These guidelines are adjusted annually by the Department of
Health and Human Services (DHHS), with each annual adjustment effective
July 1 of each year. For purposes of WIC Overseas Program income
eligibility determinations, income guidelines shall mean the income
guidelines published by the DHHS pertaining to the State of Alaska.
(16) Infants. Persons under 1 year of age.
(17) National of the U.S. A person who:
(i) Is a citizen of the U.S.; or
(ii) Is not a citizen of the United States, but who owes permanent
allegiance to the United States, as determined in accordance with the
Immigration and Nationality Act.
(18) NEXMART. Navy Exchange Market.
(19) Nutrition education. Individual or group sessions and the
provision of materials designed to improve health status, achieve
positive change in dietary habits, and emphasize relationships between
nutrition and health, all in keeping with the individual's personal,
cultural, and socioeconomic preferences.
(20) Nutritional risk. (i) The presence of detrimental or abnormal
nutritional conditions detectable by biochemical, physical,
developmental or anthropometric data, or
(ii) Other documented nutritionally related medical conditions, or
(iii) Documented evidence of dietary deficiencies that impair or
endanger health, or
(iv) Conditions that directly affect the nutritional health of a
person, such as alcoholism or drug abuse, or
(v) Conditions that predispose persons to inadequate nutritional
patterns, habits of poor nutritional choices or nutritionally related
medical conditions.
(21) Participants. Pregnant women, breastfeeding women, postpartum
women, infants, and children who are receiving supplemental foods or
food instruments under the WIC Overseas Program, and the breastfed
infants of participant breastfeeding women.
(22) Postpartum Women. Women up to 6 months after the end of their
pregnancy. Their eligibility will end on the last day of the sixth month
after their delivery.
(23) Pregnant Women. Women determined to have one or more embryos or
fetuses in utero. Pregnant women are eligible to receive WIC benefits
through 6 weeks postpartum, at which time they reapply for the program
as postpartum or breastfeeding women.
(24) Rebate. The amount of money refunded under cost containment
procedures to the Department from the manufacturer of a contract brand
food item.
(25) Regional Lead Agent. The designated major military medical
center that acts as the regional lead agent, having tri-service
responsibility for the development and execution of a single, integrated
health care network.
(26) Supplemental foods. Foods containing nutrients determined by
nutritional research to be lacking in the diets of certain pregnant,
breastfeeding, and postpartum women, infants, and children. WIC Overseas
may substitute different foods providing the nutritional equivalent of
foods prescribed by Domestic WIC programs, as required by 10 U.S.C.
1060a(c)(1)(B).
(27) Verification. Verification of drafts is a review before payment
out of Defense Health Program funds to determine whether the commissary
or NEXMART complied with applicable
[[Page 365]]
date-to-use, food specification, and other redemption criteria.
(c) Certification of eligibility. (1) to the extent practicable,
participants shall be certified as eligible to receive Program benefits
according to income and nutritional risk certification guidelines
contained in regulations published by the USDA pertaining to the Women,
Infants, and Children program required under 7 CFR 246.7(d)(2)(iv)(B).
Applicants must meet the following eligibility criteria:
(i) Meet one of the participant type requirements: be a member of
the armed forces on duty overseas; a family member/dependent of a member
of the armed forces on duty overseas; a U.S. national employee of a
military department serving overseas; a family member of a U.S. national
employee of a DoD contractor serving overseas; a family member of a U.S.
national employee of a DoD contractor serving overseas;
(ii) Reside in the geographic area served by the WIC Overseas
office;
(iii) Meet the income criteria specified in this section; and
(iv) Meet the nutrition risk criteria specified in this section.
(2) In terms of income eligibility, the following apply:
(i) The Department of Defense shall use the Alaska income poverty
guidelines published by the DHHS for making determinations regarding
income eligibility for the Program.
(ii) Program income eligibility guidelines shall be adjusted
annually to conform to annual adjustments made by the DHHS.
(iii) For income eligibility, the Program may consider the income of
the family during the past 12 months and the family's current rate of
income to determine which indicator accurately reflects the family's
status.
(iv) A pregnant woman who is ineligible for participation in the
Program because she does not meet income criteria shall be deemed
eligible if the criteria would be met by increasing the number of
individuals in her family (economic unit) by the number of children in
utero.
(v) The Program shall define income according to USDA regulations
with regard to the USDA-administered WIC Program. In particular--
(A) A basic allowance for housing is excluded from income as
required by section 674 of the National Defense Authorization Act for
Fiscal Year 2000.
(B) The value of in-kind housing benefits is excluded from income as
required under USDA regulations.
(C) Cost of living allowances for duty outside the continental U.S.
(OCONUS) is excluded from income as required under 7 CFR
246.7(d)(2)(iv)(A)(2).
(D) Public assistance and welfare payments are included in income.
(3) Participants must be found to be at nutritional risk to be
eligible for program benefits.
(i) A Competent Professional Authority (CPA) shall determine if an
applicant is at nutritional risk.
(ii) At the request of the program, applicants shall provide,
according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed
impracticable), nutritional risk data as a condition of certification in
the Program. Such data includes:
(A) Anthropometric measurements,
(B) The results of hematological tests,
(C) Physical examination,
(D) Dietary information, or
(E) Developmental testing
(iii) A pregnant woman who meets all other eligibility criteria and
for whom a nutritional risk assessment cannot immediately be completed
will be considered presumptively eligible to participate in the Program
for a period up to 60 days.
(iv) Infants under 6 months of age may be deemed to be at
nutritional risk if the infant's mother was a Program participant during
pregnancy or if medical records document that the mother was at
nutritional risk during pregnancy.
(v) Unless otherwise specified herein or in 7 CFR 246.7(e), required
nutritional risk data shall be provided to, or obtained by, the WIC
Overseas Program office within 90 days of enrollment.
(4) In the event that it is impracticable for the WIC Overseas
Program to adhere to the income and nutritional risk eligibility
guidelines contained in USDA regulations, the Director,
[[Page 366]]
TRICARE Management Activity (TMA) may waive the Department's use of USDA
WIC Program eligibility criteria by determining that it is impracticable
to use these standards to certify participants in the WIC Overseas
Program.
(i) Such determination shall consider relevant practical,
administrative, national security, financial factors and existing
Department policies and their application to the population served by
the WIC Overseas Program.
(ii) Absent a written finding of impracticability described in
section 199.23(c)(4), the eligibility criteria for the WIC program,
contained in USDA regulations shall apply.
(5) An applicant for the WIC Overseas Program who presents a valid
WIC Program Verification of Certification card, which is issued to
participants in the domestic WIC Program when they intend to move, shall
be considered eligible for participation in the WIC Overseas Program for
the duration of the individual's current domestic WIC certification
period, as long as he/she is an eligible service/family member or
eligible civilian/family member.
(d) Program benefits. (1) Drafts. WIC participants shall be issued
drafts that may be redeemed for supplemental food prescribed under the
program.
(i) Drafts shall at a minimum list the food items to be redeemed and
the date-to-use.
(ii) Food items listed on the draft must be approved for use under
the Program.
(iii) Drafts generally shall allow for a three-month supply of food
items for each participant, unless the participant's nutritional status
necessitates more frequent contacts with the WIC Overseas office.
(iv) Participating commissaries and NEXMARTS shall accept the drafts
in exchange for approved food items.
(v) Commissary and NEXMART personnel shall be trained on
verification and processing of drafts.
(vi) Program guidelines shall provide for training of new
participants in how to redeem drafts.
(2) Supplemental Food. Participants shall redeem drafts for
appropriate food packages at intervals determined in accordance with the
USDA regulations.
(i) The Director, TMA shall identify to the Defense Commissary
Agency (DeCA) and NEXCOM a list of food items approved for the WIC
Overseas Program. This list shall be developed in consultation with the
USDA and shall include information regarding the appropriate package
and/or container sizes and quantities available for participants, as
well as the frequency with which food items can be acquired. Additions
and/or deletions of food items from this list shall be communicated to
the commissaries and NEXMARTS on an ongoing basis.
(ii) A CPA shall prescribe appropriate foods from among the approved
list to be included in food packages.
(iii) A CPA shall coordinate documentation of medical need when such
documentation is a prerequisite for prescribing certain food items.
(iv) The Director, TMA may authorize changes regarding the
supplemental foods to be made available in the WIC Overseas Program when
local conditions preclude strict compliance or when such compliance is
impracticable.
(3) Nutrition Education. Nutrition education shall be provided to
all participants at intervals prescribed in USDA regulations at 7 CFR
Part 246.11.
(i) The WIC Overseas nutrition education program shall be locally
overseen by a CPA based on guidance and materials provided by TMA.
(ii) Nutrition education and its means of delivery be tailored to
the greatest extent practicable to the specific nutritional, cultural,
practical, and other needs of the participant. Participant profiles
created during certification may be used in designing appropriate
nutrition education. A CPA may develop individual care plans, as
necessary, consistent with USDA regulations.
(iii) Nutrition education shall consist of sessions wherein
individual participants or groups of participants meet with a CPA in an
interactive setting such that participants can ask, and the CPA can
answer, questions related to nutrition practices. In addition, nutrition
education shall utilize prepared educational materials and/or Internet
sites. Both the sessions and the information materials shall be designed
to
[[Page 367]]
improve health status, achieve positive change in dietary habits, and
emphasize relationships between nutrition and health. Individual and
group sessions can be accomplished through, among other things, face-to-
face meetings, remote tele-videoconferencing, real-time computer-based
distance learning, or other means.
(iv) Nutrition education services shall generally be provided to
participants twice during each 6-month certification period, unless a
different schedule is specified in USDA regulations.
(v) The nutrition education program shall promote breastfeeding as
the optimal method of infant nutrition, encourage pregnant participants
to breastfeed unless contraindicated for health reasons, and educate all
participating women about the harmful effects of substance abuse.
(vi) Individual participants shall not be denied supplemental food
due to the failure to attend scheduled nutrition education sessions.
(e) Financial management. The Department shall establish procedures
to provide for the verification of drafts prior to payment.
(i) Verification may utilize sampling techniques.
(ii) Payment of drafts shall be made out of Defense Health Program
funds.
(f) Rebate agreements. (1) DoD is authorized to enter into an
agreement with a manufacturer of a particular brand of a food item that
provides for the exclusive supply to the program of the same or similar
types of food items by that manufacturer.
(i) The agreement shall identify a contract brand of food item.
(ii) Under the agreement, the manufacturer shall rebate to the
Department an agreed portion of the amounts paid by DoD for the
procurement of the contract brand.
(2) The DoD shall use competitive procedures under title 10, chapter
137 to select the contract brand.
(3) Amounts rebated shall be credited to the appropriation available
for carrying out the program and shall be applied against expenditures
for the program in the same period as the other sums in the
appropriation.
(g) Administrative appeals and civil rights. (1) Applicants who are
denied certification or participants that are denied recertification
shall be provided with a notice of ineligibility. The notice shall
include information on the applicant's right to appeal the determination
and instructions on doing so.
(2) Benefits shall not be provided while an appeal is pending when
an applicant is denied benefits, a participant's certification has
expired or a participant becomes categorically ineligible.
(3) A request for appeal shall be submitted in writing within five
working days. If the decision is an adverse one it shall include notice
to the applicant of his further appeal rights as reflected in (iii)
below, and that he/she has five working days to effect any such appeal.
(4) Appeal reviews shall be conducted in the first instance by the
CPA or team leader in charge of the local WIC Overseas office.
(i) Written notice of a decision shall be provided to the applicant
within five working days.
(ii) If the appeal is upheld, retroactive benefits shall not be
provided.
(iii) At an applicant's request a denied appeal may be forwarded to
the regional program manager for review, who will provide a decision on
the appeal within 5 working days.
(iv) If the regional program manager denies the appeal, there shall
be no further right of appeal.
(5) Complaints about discriminatory treatment shall be handled in
accordance with procedures established at each local WIC Overseas site.
(h) Operations and Administration. (1) Information collected about
WIC Overseas applicants and participants shall be collected, maintained,
and disclosed in accordance with applicable laws and regulations.
(2) Information and personnel security requirements shall be
consistent with applicable laws and regulations.
[69 FR 15678, Mar. 26, 2004]
Sec. 199.24 TRICARE Reserve Select.
(a) Establishment. TRICARE Reserve Select offers the TRICARE Select
self-managed, preferred-provider network
[[Page 368]]
option under Sec. 199.17 to qualified members of the Selected Reserve,
their immediate family members, and qualified survivors under this
section.
(1) Purpose. TRICARE Reserve Select is a premium-based health plan
that is available for purchase by members of the Selected Reserve and
certain survivors of Selected Reserve members as specified in paragraph
(c) of this section.
(2) Statutory Authority. TRICARE Reserve Select is authorized by 10
U.S.C. 1076d.
(3) Scope of the Program. TRICARE Reserve Select is applicable in
the 50 United States, the District of Columbia, Puerto Rico, and, to the
extent practicable, other areas where members of the Selected Reserve
serve. In locations other than the 50 states of the United States and
the District of Columbia, the Assistant Secretary of Defense (Health
Affairs) may authorize modifications to the program rules and procedures
as may be appropriate to the area involved.
(4) Major Features of TRICARE Reserve Select. The major features of
the program include the following:
(i) TRICARE Select rules applicable. (A) Unless specified in this
section or otherwise prescribed by the Director, provisions of TRICARE
Select under Sec. 199.17 apply to TRICARE Reserve Select.
(B) Certain special programs established in 32 CFR part 199 are not
available to members covered under TRICARE Reserve Select. These include
the Extended Care Health Option (Sec. 199.5), the Special Supplemental
Food Program (see Sec. 199.23), and the Supplemental Health Care
Program (Sec. 199.16), except when referred by a Military Treatment
Facility (MTF) provider for incidental consults and the MTF provider
maintains clinical control over the episode of care. The TRICARE Dental
Program (Sec. 199.13) is independent of this program and is otherwise
available to all members of the Selected Reserve and their eligible
family members whether or not they purchase TRICARE Reserve Select
coverage. The Continued Health Care Benefits Program (Sec. 199.20) is
also independent of this program and is otherwise available to all
members who qualify.
(ii) Premiums. TRICARE Reserve Select coverage is available for
purchase by any Selected Reserve member if the member fulfills all of
the statutory qualifications. A member of the Selected Reserve covered
under TRICARE Reserve Select shall pay 28 percent of the total amount
that the ASD(HA) determines on an appropriate actuarial basis as being
appropriate for that coverage. There is one premium rate for member-only
coverage and one premium rate for member and family coverage.
(iii) Procedures. Under TRICARE Reserve Select, Reserve Component
members who fulfilled all of the statutory qualifications may purchase
either the member-only type of coverage or the member-and-family type of
coverage by submitting a completed request in the appropriate format
along with an initial payment of the applicable premium. Rules and
procedures for purchasing coverage and paying applicable premiums are
prescribed in this section.
(iv) Benefits. When their coverage becomes effective, TRICARE
Reserve Select beneficiaries receive the TRICARE Select benefit
including access to military treatment facility services and pharmacies,
as described in Sec. Sec. 199.17 and 199.21. TRICARE Reserve Select
coverage features the deductible, catastrophic cap and cost share
provisions of the TRICARE Select plan applicable to Group B active duty
family members under Sec. 199.17(l)(2)(ii) for both the member and the
member's covered family members; however, the TRICARE Reserve Select
premium under paragraph (c) of this section applies instead of any
TRICARE Select plan enrollment fee under Sec. 199.17. Both the member
and the member's covered family members are provided access priority for
care in military treatment facilities on the same basis as active duty
service members' dependents who are not enrolled in TRICARE Prime as
described in Sec. 199.17(d)(1)(i)(D).
(b) Qualifications for TRICARE Reserve Select coverage--(1) Ready
Reserve member. A Ready Reserve member qualifies to purchase TRICARE
Reserve Select coverage if the Service member meets both the following
criteria:
[[Page 369]]
(i) Is a member of the Selected Reserve of the Ready Reserve of the
Armed Forces, or a member of the Individual Ready Reserve of the Armed
Forces who has volunteered to be ordered to active duty pursuant to the
provisions of 10 U.S.C. 12304 in accordance with section 10 U.S.C.
10144(b); and
(ii) Is not enrolled in, or eligible to enroll in, a health benefits
plan under 5 U.S.C. chapter 89. That statute has been implemented under
5 CFR part 890 as the Federal Employees Health Benefits (FEHB) program.
For purposes of the FEHB program, the terms ``enrolled,'' ``enroll'' and
``enrollee'' are defined in 5 CFR 890.101. Further, the member (or
certain former member involuntarily separated) no longer qualifies for
TRICARE Reserve Select when the member (or former member) has been
eligible for coverage to be effective in a health benefits plan under
the FEHB program for more than 60 days.
(2) TRICARE Reserve Select survivor. If a qualified Service member
dies while in a period of TRICARE Reserve Select coverage, the immediate
family member(s) of such member is qualified to purchase new or continue
existing TRICARE Reserve Select coverage for up to six months beyond the
date of the member's death as long as they meet the definition of
immediate family members as specified in paragraph (g)(2) of this
section. This applies regardless of type of coverage in effect on the
day of the TRICARE Reserve Select member's death.
(c) TRICARE Reserve Select premiums. Members are charge premiums for
coverage under TRICARE Reserve Select that represent 28 percent of the
total annual premium amount that the Director determines on an
appropriate actuarial basis as being appropriate for coverage under the
TRICARE Select benefit for the TRICARE Reserve Select eligible
population. Premiums are to be paid monthly, except as otherwise
provided through administrative implementation, pursuant to procedures
established by the Director. The monthly rate for each month of a
calendar year is one-twelfth of the annual rate for that calendar year.
(1) Annual establishment of rates. TRICARE Reserve Select monthly
premium rates shall be established and updated annually on a calendar
year basis for each of the two types of coverage, member-only and
member- and-family as described in paragraph (d)(1) of this section.
Starting with calendar year 2009, the appropriate actuarial basis for
purposes of this paragraph (c) shall be determined for each calendar
year by utilizing the actual reported cost of providing benefits under
this section to members and their dependents during the calendar years
preceding such calendar year. Reported actual TRS cost data from
calendar years 2006 and 2007 was used to determine premium rates for
calendar year 2009. This established pattern will be followed to
determine premium rates for all calendar years subsequent to 2009.
(2) Premium adjustments. In addition to the determinations described
in paragraph (c)(1) of this section, premium adjustments may be made
prospectively for any calendar year to reflect any significant program
changes or any actual experience in the costs of administering TRICARE
Reserve Select.
(3) Survivor premiums. A surviving family member of a Reserve
Component service member who qualified for TRICARE Reserve Select
coverage as described in paragraph (b)(2) of this section will pay
premium rates as follows. The premium amount shall be at the member-only
rate if there is only one surviving family member to be covered by
TRICARE Reserve Select and at the member and family rate if there are
two or more survivors to be covered.
(d) Procedures. The Director may establish procedures for the
following.
(1) Purchasing coverage. Procedures may be established for a
qualified member to purchase one of two types of coverage: Member-only
coverage or member and family coverage. Immediate family members of a
qualified member as specified in paragraph (g)(2) of this section may be
included in such family coverage. To purchase either type of TRICARE
Reserve Select coverage for effective dates of coverage described below,
members and survivors qualified under either paragraph (b)(1) or (2) of
this section must submit a request in the appropriate format, along
[[Page 370]]
with an initial payment of the applicable premium required by paragraph
(c) of this section in accordance with established procedures.
(i) Continuation coverage. Procedures may be established for a
qualified member or qualified survivor to purchase TRICARE Reserve
Select coverage with an effective date immediately following the date of
termination of coverage under another TRICARE program.
(ii) Qualifying event. Procedures for qualifying events in TRICARE
Select plans under Sec. 199.17(o) shall apply to TRICARE Reserve Select
coverage. Additionally, the Director may identify other events unique to
needs of the Reserve Components as qualifying events.
(iii) Enrollment. Procedures for enrollment in TRICARE Select plans
under Sec. 199.17(o) shall apply to TRICARE Reserve Select enrollment.
Generally, the effective date of coverage will coincide with the first
day of a month unless enrollment is due to a qualifying event and a
different date on or after the qualifying event is required to prevent a
lapse in health care coverage.
(iv) Survivor coverage under TRICARE Reserve Select. Procedures may
be established for a surviving family member of a Reserve Component
service member who qualified for TRICARE Reserve Select coverage as
described in paragraph (b)(2) of this section to purchase new TRICARE
Reserve Select coverage or continue existing TRICARE Reserve Select
coverage for up to six months beyond the date of the member's death. The
effective date of coverage will be the day following the date of the
member's death.
(2) Termination. Termination of coverage for the TRS member/survivor
will result in termination of coverage for the member's/survivor's
family members in TRICARE Reserve Select. Procedures may be established
for coverage to be terminated as follows.
(i) Coverage shall terminate when members or survivors no longer
qualify for TRICARE Reserve Select as specified in paragraph (b) of this
section, with one exception. If a member is involuntarily separated from
the Selected Reserve under other than adverse conditions, as
characterized by the Secretary concerned, and is covered by TRICARE
Reserve Select on the last day of his or her membership in the Selected
Reserve, then TRICARE Reserve Select coverage may terminate up to 180
days after the date on which the member was separated from the Selected
Reserve. This applies regardless of type of coverage. This exception
expires December 31, 2018.
(ii) Coverage may terminate for members, former members, and
survivors who gain coverage under another TRICARE program.
(iii) In accordance with the provisions of Sec. 199.17(o)(2)
coverage terminates for members/survivors who fail to make premium
payments in accordance with established procedures.
(iv) Coverage may be terminated for members/survivors upon request
at any time by submitting a completed request in the appropriate format
in accordance with established procedures.
(3) Re-enrollment following termination. Absent a new qualifying
event, members/survivors (subject to paragraph (d)(1)(iv) of this
section) are not eligible to re-enroll in TRICARE Reserve Select until
the next annual open season.
(4) Processing. Upon receipt of a completed request in the
appropriate format, enrollment actions will be processed into DEERS in
accordance with established procedures.
(5) Periodic revision. Periodically, certain features, rules or
procedures of TRICARE Reserve Select may be revised. If such revisions
will have a significant effect on members' or survivors' costs or access
to care, members or survivors may be given the opportunity to change
their type of coverage or terminate coverage coincident with the
revisions.
(e) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the
Department of Defense has determined that in the administration of
chapter 55 of title 10, U.S. Code, preemption of State and local laws
relating to health insurance, prepaid health plans, or other health care
delivery or financing methods is necessary to achieve important Federal
interests, including but not limited to the assurance of uniform
national health programs for military
[[Page 371]]
families and the operation of such programs, at the lowest possible cost
to the Department of Defense, that have a direct and substantial effect
on the conduct of military affairs and national security policy of the
United States. This determination is applicable to contracts that
implement this section.
(2) Based on the determination set forth in paragraph (f)(1) of this
section, any State or local law or regulation pertaining to health
insurance, prepaid health plans, or other health care delivery,
administration, and financing methods is preempted and does not apply in
connection with TRICARE Reserve Select. Any such law, or regulation
pursuant to such law, is without any force or effect, and State or local
governments have no legal authority to enforce them in relation to
TRICARE Reserve Select. (However, the Department of Defense may, by
contract, establish legal obligations on the part of DoD contractors to
conform with requirements similar to or identical to requirements of
State or local laws or regulations with respect to TRICARE Reserve
Select).
(3) The preemption of State and local laws set forth in paragraph
(f)(2) of this section includes State and local laws imposing premium
taxes on health insurance carriers or underwriters or other plan
managers, or similar taxes on such entities. Such laws are laws relating
to health insurance, prepaid health plans, or other health care delivery
or financing methods, within the meaning of 10 U.S.C. 1103. Preemption,
however, does not apply to taxes, fees, or other payments on net income
or profit realized by such entities in the conduct of business relating
to DoD health services contracts, if those taxes, fees or other payments
are applicable to a broad range of business activity. For the purposes
of assessing the effect of Federal preemption of State and local taxes
and fees in connection with DoD health services contracts,
interpretations shall be consistent with those applicable to the Federal
Employees Health Benefits Program under 5 U.S.C. 8909(f).
(f) Administration. The Director may establish other rules and
procedures for the effective administration of TRICARE Reserve Select,
and may authorize exceptions to requirements of this section, if
permitted by law.
(g) Terminology. The following terms are applicable to the TRICARE
Reserve Select program.
(1) Coverage. This term means the medical benefits covered under the
TRICARE Select program as further outlined in Sec. 199.17 whether
delivered in military treatment facilities or purchased from civilian
sources.
(2) Immediate family member. This term means spouse (except former
spouses) as defined in Sec. 199.3(b)(2)(i), or child as defined in
Sec. 199.3(b)(2)(ii).
(3) Qualified member. This term means a member who has satisfied all
the criteria that must be met before the member is authorized for TRS
coverage.
(4) Qualified survivor. This term means an immediate family member
who has satisfied all the criteria that must be met before the survivor
is authorized for TRS coverage.
[72 FR 46383, Aug. 20, 2007, as amended at 76 FR 57641, Sept. 16, 2011;
80 FR 55254, Sept. 15, 2015; 82 FR 45458, Sept. 29, 2017]
Sec. 199.25 TRICARE Retired Reserve.
(a) Establishment. TRICARE Retired Reserve offers the TRICARE Select
self-managed, preferred-provider network option under Sec. 199.17 to
qualified members of the Retired Reserve, their immediate family
members, and qualified survivors under this section.
(1) Purpose. As specified in paragraph (c) of this section, TRICARE
Retired Reserve is a premium-based health plan that is available for
purchase by any Retired Reserve member who is qualified for non-regular
retirement, but is not yet 60 years of age, unless that member is either
enrolled in, or eligible to enroll in, a health benefit plan under
Chapter 89 of Title 5, United States Code, as well as certain survivors
of Retired Reserve members.
(2) Statutory Authority. TRICARE Retired Reserve is authorized by 10
U.S.C. 1076e.
(3) Scope of the Program. TRICARE Retired Reserve is geographically
applicable to the same extent as specified in 32 CFR 199.1(b)(1).
[[Page 372]]
(4) Major Features of TRICARE Retired Reserve. The major features of
the program include the following:
(i) TRICARE Select rules applicable. (A) Unless specified in this
section or otherwise prescribed by the ASD (HA), provisions of TRICARE
Select under Sec. 199.17 apply to TRICARE Retired Reserve.
(B) Certain special programs established in 32 CFR part 199 are not
available to members covered under TRICARE Retired Reserve. The Extended
Health Care Option (ECHO) program (sec. 199.5) is not included. The
Supplemental Health Care Program (sec. 199.16) is not included, except
when a TRICARE Retired Reserve covered beneficiary is referred by a
Military Treatment Facility (MTF) provider for incidental consults and
the MTF provider maintains clinical control over the episode of care.
The TRICARE Retiree Dental Program (sec. 199.13) is independent of this
program and is otherwise available to all members who qualify for the
TRICARE Retiree Dental Program whether or not they purchase TRICARE
Retired Reserve coverage. The Continued Health Care Benefits Program
(sec. 199.13) is also independent of this program and is otherwise
available to all members who qualify for the Continued Health Care
Benefits Program.
(ii) Premiums. TRICARE Retired Reserve coverage is available for
purchase by any Retired Reserve member if the member fulfills all of the
statutory qualifications as well as certain survivors. A member of the
Retired Reserve or qualified survivor covered under TRICARE Retired
Reserve shall pay the amount equal to the total amount that the ASD(HA)
determines on an appropriate actuarial basis as being appropriate for
that coverage. There is one premium rate for member-only coverage and
one premium rate for member and family coverage.
(iii) Procedures. Under TRICARE Retired Reserve, Retired Reserve
members (or their survivors) who fulfilled all of the statutory
qualifications may purchase either the member-only type of coverage or
the member and family type of coverage by submitting a completed request
in the appropriate format along with an initial payment of the
applicable premium. Procedures for purchasing coverage and paying
applicable premiums are prescribed in this section.
(iv) Benefits. When their coverage becomes effective, TRICARE
Retired Reserve beneficiaries receive the TRICARE Select benefit
including access to military treatment facilities on a space available
basis and pharmacies, as described in Sec. 199.17. TRICARE Retired
Reserve coverage features the deductible, cost sharing, and catastrophic
cap provisions of the TRICARE Select plan applicable to Group B retired
members and dependents of retired members under Sec. 199.17(l)(2)(ii);
however, the TRICARE Reserve Select premium under paragraph (c) of this
section applies instead of any TRICARE Select plan enrollment fee under
Sec. 199.17. Both the member and the member's covered family members
are provided access priority for care in military treatment facilities
on the same basis as retired members and their dependents who are not
enrolled in TRICARE Prime as described in Sec. 199.17(d)(1)(i)(E).
(b) Qualifications for TRICARE Retired Reserve coverage--(1) Retired
Reserve Member. A Retired Reserve member qualifies to purchase TRICARE
Retired Reserve coverage if the member meets both the following
criteria:
(i) Is a member of a Reserve component of the armed forces who is
qualified for a non-regular retirement at age 60 under chapter 1223 of
title 10, U.S.C., but who is not yet age 60 and
(ii) Is not enrolled in, or eligible to enroll in, a health benefits
plan under chapter 89 of title 5, U.S.C. That statute has been
implemented under part 890 of title 5, CFR as the Federal Employee
Health Benefits (FEHB) program. For purposes of the FEHB program, the
terms ``enrolled,'' ``enroll'' and ``enrollee'' are defined in Sec.
890.101 of title 5, CFR.
(2) Retired Reserve Survivor. If a qualified member of the Retired
Reserves dies while in a period of TRICARE Retired Reserve coverage, the
immediate family member(s) of such member shall remain qualified to
purchase new or continue existing TRICARE Retired Reserve coverage until
the date on
[[Page 373]]
which the deceased member of the Retired Reserve would have attained age
60 as long as they meet the definition of immediate family members
specified in paragraph (g)(2) of this section. This applies regardless
whether either member-only coverage or member and family coverage was in
effect on the day of the TRICARE Retired Reserve member's death.
(c) TRICARE Retired Reserve premiums. Members are charged for
coverage under TRICARE Retired Reserve that represent the full cost of
the program as determined by the Director utilizing an appropriate
actuarial basis for the provision of the benefits provided under the
TRICARE Select program for the TRICARE Retired Reserve eligible
beneficiary population. Premiums are to be paid monthly, except as
otherwise provided through administrative implementation, pursuant to
procedures established by the Director. The monthly rate for each month
of a calendar year is one-twelfth of the annual rate for that calendar
year.
(1) Annual establishment of rates.--(i) TRICARE Retired Reserve
monthly premium rates shall be established and updated annually on a
calendar year basis by the ASD(HA) for each of the two types of
coverage, member-only coverage and member-and-family coverage as
described in paragraph (d)(1) of this section.
(ii) The appropriate actuarial basis used for calculating premium
rates shall be one that most closely approximates the actual cost of
providing care to the same demographic population as those enrolled in
TRICARE Retired Reserve as determined by the ASD(HA). TRICARE Retired
Reserve premiums shall be based on the actual costs of providing
benefits to TRICARE Retired Reserve members and their dependents during
the preceding years if the population of Retired Reserve members
enrolled in TRICARE Retired Reserve is large enough during those
preceding years to be considered actuarially appropriate. Until such
time that actual costs from those preceding years becomes available,
TRICARE Retired Reserve premiums shall be based on the actual costs
during the preceding calendar years for providing benefits to the
population of retired members and their dependents in the same age
categories as the retired reserve population in order to make the
underlying group actuarially appropriate. An adjustment may be applied
to cover overhead costs for administration of the program by the
government.
(2) Premium adjustments. In addition to the determinations described
in paragraph (c)(1) of this section, premium adjustments may be made
prospectively for any calendar year to reflect any significant program
changes or any actual experience in the costs of administering the
TRICARE Retired Reserve Program.
(3) Survivor Premiums. A surviving family member of a Retired
Reserve member who qualified for TRICARE Retired Reserve coverage as
described herein will pay premium rates at the member-only rate if there
is only one surviving family member to be covered by TRICARE Retired
Reserve and at the member-and-family rate if there are two or more
survivors to be covered.
(d) Procedures. The Director may establish procedures for the
following.
(1) Purchasing Coverage. Procedures may be established for a
qualified member to purchase one of two types of coverage: Member-only
coverage or member and family coverage. Immediate family members of the
Retired Reserve member as specified in paragraph (g)(2) of this section
may be included in such family coverage. To purchase either type of
TRICARE Retired Reserve coverage for effective dates of coverage
described below, Retired Reserve members and survivors qualified under
either paragraph (b)(1) or (b)(2) of this section must submit a request
in the appropriate format, along with an initial payment of the
applicable premium required by paragraph (c) of this section in
accordance with established procedures.
(i) Continuation Coverage. Procedures may be established for a
qualified member or qualified survivor to purchase TRICARE Retired
Reserve coverage with an effective date immediately following the date
of termination of coverage under another TRICARE program.
(ii) Qualifying event. Procedures for qualifying events in TRICARE
Select
[[Page 374]]
plans under Sec. 199.17(o) shall apply to TRICARE Retired Reserve
coverage.
(iii) Enrollment. Procedures for enrollment in TRICARE Select plans
under Sec. 199.17(o) shall apply to TRICARE Retired Reserve enrollment.
Generally, the effective date of coverage will coincide with the first
day of a month unless enrollment is due to a qualifying event and a
different date on or after the qualifying event is required to prevent a
lapse in health care coverage.
(iv) Survivor coverage under TRICARE Retired Reserve. Procedures may
be established for a surviving family member of a qualified Retired
Reserve member who qualified for TRICARE Retired Reserve coverage as
described in paragraph (b)(2) of this section to purchase new TRICARE
Retired Reserve coverage or continue existing TRICARE Retired Reserve
coverage. Procedures similar to those for qualifying life events may be
established for a qualified surviving family member to purchase new or
continuing coverage with an effective date coinciding with the day of
the member's death. Procedures similar to those for open enrollment may
be established for a qualified surviving family member to purchase new
coverage at any time with an effective date coinciding with the first
day of a month.
(2) Termination. Termination of coverage for the TRR member/survivor
will result in termination of coverage for the member's/survivor's
family members in TRICARE Retired Reserve. Procedures may be established
for coverage to be terminated as follows.
(i) Coverage shall terminate when members or survivors no longer
qualify for TRICARE Retired Reserve as specified in paragraph (c) of
this section. For purposes of this section, the member or their survivor
no longer qualifies for TRICARE Retired Reserve when the member has been
eligible for coverage in a health benefits plan under Chapter 89 of
Title 5, U.S.C. for more than 60 days. Further, coverage shall terminate
when the Retired Reserve member attains the age of 60 or, if survivor
coverage is in effect, when the deceased Retired Reserve member would
have attained the age of 60.
(ii) Coverage may terminate for members, former members, and
survivors who gain coverage under another TRICARE program.
(iii) In accordance with the provisions of Sec. 199.17(o)(2)
coverage terminates for members/survivors who fail to make premium
payments in accordance with established procedures.
(iv) Coverage may be terminated for members/survivors upon request
at any time by submitting a completed request in the appropriate format
in accordance with established procedures.
(3) Re-enrollment following termination. Absent a new qualifying
event, members/survivors are not eligible to re-enroll in TRICARE
Retired Reserve until the next annual open season.
(4) Processing. Upon receipt of a completed request in the
appropriate format, enrollment actions will be processed into DEERS in
accordance with established procedures.
(5) Periodic revision. Periodically, certain features, rules or
procedures of TRICARE Retired Reserve may be revised. If such revisions
will have a significant effect on members' or survivors' costs or access
to care, members or survivors may be given the opportunity to change
their type of coverage or terminate coverage coincident with the
revisions.
(e) Preemption of State laws.-- (1) Pursuant to 10 U.S.C. 1103, the
Department of Defense has determined that in the administration of
chapter 55 of title 10, U.S. Code, preemption of State and local laws
relating to health insurance, prepaid health plans, or other health care
delivery or financing methods is necessary to achieve important Federal
interests, including but not limited to the assurance of uniform
national health programs for military families and the operation of such
programs, at the lowest possible cost to the Department of Defense, that
have a direct and substantial effect on the conduct of military affairs
and national security policy of the United States. This determination is
applicable to contracts that implement this section.
(2) Based on the determination set forth in paragraph (f)(1) of this
section, any State or local law or regulation pertaining to health
insurance, prepaid
[[Page 375]]
health plans, or other health care delivery, administration, and
financing methods is preempted and does not apply in connection with
TRICARE Retired Reserve. Any such law, or regulation pursuant to such
law, is without any force or effect, and State or local governments have
no legal authority to enforce them in relation to TRICARE Retired
Reserve. (However, the Department of Defense may, by contract, establish
legal obligations on the part of DoD contractors to conform with
requirements similar to or identical to requirements of State or local
laws or regulations with respect to TRICARE Retired Reserve).
(3) The preemption of State and local laws set forth in paragraph
(f)(2) of this section includes State and local laws imposing premium
taxes on health insurance carriers or underwriters or other plan
managers, or similar taxes on such entities. Such laws are laws relating
to health insurance, prepaid health plans, or other health care delivery
or financing methods, within the meaning of 10 U.S.C. 1103. Preemption,
however, does not apply to taxes, fees, or other payments on net income
or profit realized by such entities in the conduct of business relating
to DoD health services contracts, if those taxes, fees or other payments
are applicable to a broad range of business activity. For the purposes
of assessing the effect of Federal preemption of State and local taxes
and fees in connection with DoD health services contracts,
interpretations shall be consistent with those of the Federal Employees
Health Benefits Program under 5 U.S.C. 8909(f).
(f) Administration. The Director may establish other rules and
procedures for the effective administration of TRICARE Retired Reserve,
and may authorize exceptions to requirements of this section, if
permitted by law.
(g) Terminology. The following terms are applicable to the TRICARE
Retired Reserve program.
(1) Coverage. This term means the medical benefits covered under the
TRICARE Select program as further outlined in Sec. 199.17 whether
delivered in military treatment facilities or purchased from civilian
sources.
(2) Immediate family member. This term means spouse (except former
spouses) as defined in paragraph 199.3(b)(2)(i) of this part, or child
as defined in paragraph 199.3 (b)(2)(ii).
(3) Qualified member. This term means a member who has satisfied all
the criteria that must be met before the member is authorized for TRR
coverage.
(4) Qualified survivor. This term means an immediate family member
who has satisfied all the criteria that must be met before the survivor
is authorized for TRR coverage.
[75 FR 47455, Aug. 6, 2010, as amended at 79 FR 78702, Dec. 31, 2014; 82
FR 45459, Sept. 29, 2017]
Sec. 199.26 TRICARE Young Adult.
(a) Establishment. The TRICARE Young Adult (TYA) program offers
options of medical benefits provided under the TRICARE program to
qualified unmarried adult children of TRICARE-eligible uniformed service
sponsors who do not otherwise have eligibility for medical coverage
under a TRICARE program at age 21 (23 if enrolled in a full-time course
of study at an approved institution of higher learning, and the sponsor
provides over 50 percent of the student's financial support), and are
under age 26.
(1) Purpose. As specified in paragraph (c) of this section, TYA is a
premium-based health option that is available for purchase by any
qualified adult child as that term is defined in paragraph (b) of this
section. The TYA program allows a qualified adult child to purchase
TRICARE coverage.
(2) Statutory authority. TYA is authorized by 10 U.S.C. 1110b.
(3) Scope of the program. TYA is geographically applicable to the
same extent as specified in Sec. 199.1(b)(1).
(4) Major features of TYA. (i) TRICARE rules applicable.
(A) Unless specified in this section or otherwise prescribed by the
Assistant Secretary of Defense (Health Affairs) (ASD (HA)), provisions
of this part apply to TYA.
(B) The TRICARE Dental Program (Sec. 199.13) and the TRICARE
Retiree Dental Program (Sec. 199.22) are not covered under TYA.
[[Page 376]]
(C) TRICARE Select is available to all TYA-eligible young adult
dependents.
(D) TRICARE Prime is available to TYA-eligible young adult
dependents, provided that TRICARE Prime (including the Uniformed
Services Family Health Plan) is available in the geographic location
where the TYA enrollee resides. TYA-eligible young adults are:
(1) Dependents of sponsors on active duty orders written, or
otherwise continuously, for more than 30 days or covered by TAMP (under
Sec. 199.3(e));
(2) Dependents of sponsors who are retired members other than
retired members of the Retired Reserve; and
(3) Survivors of members who died while on active duty for more than
30 days or while receiving retired or retainer pay.
(ii) Premiums. TYA coverage is a premium based program that an
eligible young adult dependent may purchase. There is only individual
coverage, and a premium shall be charged for each dependent even if
there is more than one qualified dependent in the uniformed service
sponsor's family that qualifies for TYA coverage. Dependents qualifying
for TYA status can purchase individual TRICARE Select or TRICARE Prime
coverage (as applicable) according to the rules governing the TRICARE
option for which they are qualified on the basis of their uniformed
service sponsor's TRICARE-eligible status (active duty, retired,
Selected Reserve, or Retired Reserve) and the availability of a desired
option in their geographic location. Premiums shall be determined in
accordance with paragraph (c) of this section.
(iii) Procedures. Under TYA, qualified dependents under paragraph
(b) of this section may purchase individual TYA coverage by submitting a
completed request in the appropriate format along with an initial
payment of the applicable premium. Procedures for purchasing coverage
and paying applicable premiums are prescribed in paragraph (d) of this
section.
(iv) Benefits. When their TYA coverage becomes effective, qualified
beneficiaries receive the benefit of the TRICARE option that they
selected, including, if applicable, access to military treatment
facilities and pharmacies. TYA coverage features the cost share,
deductible and catastrophic cap provisions applicable to Group B
beneficiaries based on the program selected, i.e., the TRICARE Select
program under Sec. 199.17(l)(2)(ii) or the TRICARE Prime program under
Sec. 199.17(l)(ii), as well as the status of their military sponsor.
Access to military treatment facilities under the system of access
priorities in Sec. 199.17(d)(1) is also based on the program selected
as well as the status of the military sponsor. Premiums are not credited
to deductibles or catastrophic caps; however, TYA premiums shall apply
instead of any applicable TRICARE Prime or Select enrollment fee.
(b) Eligibility for TRICARE Young Adult coverage--(1) Young Adult
Dependent. A young adult dependent qualifies to purchase TYA coverage if
the dependent meets the following criteria:
(i) Would be a dependent child under 10 U.S.C. 1072, but for
exceeding the age limit under that section (abused dependents and NATO
dependents are not eligible for TYA coverage); and
(ii) Is a dependent under the age of 26; and
(iii) Is not enrolled, or eligible to enroll, for medical coverage
in an eligible employer-sponsored health plan as defined in section
5000A(f)(2) of the Internal Revenue Code of 1986; and
(iv) Is not otherwise eligible under Sec. 199.3; and
(v) Is not a member of the uniformed services.
(2) The dependents' sponsor is responsible for keeping the Defense
Enrollment Eligibility Reporting System (DEERS) current with eligibility
data through the sponsor's Service personnel office. Using information
from the DEERS, the TRICARE regional contractors have the responsibility
to validate a dependent's qualifications to purchase TYA coverage.
(c) TRICARE Young Adult premiums. Qualified young adult dependents
are charged premiums for coverage under TYA that represent the full cost
of the program, including reasonable administrative costs, as determined
by the Director utilizing an appropriate actuarial basis for the
provision of TRICARE benefits for the TYA-eligible
[[Page 377]]
beneficiary population. Separate premiums shall be established for
TRICARE Select and Prime plans. There may also be separate premiums
based on the uniformed services sponsor's status. Premiums are to be
paid monthly, except as otherwise provided through administrative
implementation, pursuant to procedures established by the Director. The
monthly rate for each month of a calendar year is one-twelfth of the
annual rate for that calendar year.
(1) Annual establishment of rates. (i) Monthly premium rates shall
be established and updated annually on a calendar year basis by the
ASD(HA) for TYA individual coverage.
(ii) The appropriate actuarial basis used for calculating premium
rates shall be one that most closely approximates the actual cost of
providing care to a similar demographic population (based on age and
health plans) as those enrolled in TYA, as determined by the ASD(HA).
TYA premiums shall be based on the actual costs of providing benefits to
TYA dependents during the preceding years if the population of TYA
enrollees is large enough during those preceding years to be considered
actuarially appropriate. Until such time that actual costs from those
preceding years become available, TYA premiums shall be based on the
actual costs during the preceding calendar years for providing benefits
to the population of similarly aged dependents to make the underlying
group actuarially appropriate. An adjustment may be applied to cover
overhead costs for administration of the program.
(2) Premium adjustments. In addition to the determinations described
in paragraph (c)(1) of this section, premium adjustments may be made
prospectively for any calendar year to reflect any significant program
changes mandated by legislative enactment, including but not limited to
significant new programs or benefits.
(d) Procedures. The Director may establish procedures for the
following.
(1) Purchasing coverage. Procedures may be established for a
qualified dependent to purchase individual coverage. To purchase TYA
coverage for effective dates of coverage described below, qualified
dependents must submit a request in the appropriate format, along with
an initial payment of the applicable premium required by paragraph (c)
of this section in accordance with established procedures.
(i) Continuation coverage. Procedures may be established for a
qualified dependent to purchase TYA coverage with an effective date
immediately following the date of termination of coverage under another
TRICARE program. Application for continuation coverage must be made
within 30 days of the date of termination of coverage under another
TRICARE program.
(ii) Enrollment. Procedures for enrollment in TRICARE plans under
Sec. 199.17(o) shall apply to a qualified dependent purchasing TYA
coverage. Generally, the effective date of coverage will coincide with
the first day of a month unless enrollment is due to a qualifying event
and a different date on or after the qualifying event is required to
prevent a lapse in health care coverage.
(2) Termination. Procedures may be established for TYA coverage to
be terminated as follows.
(i) Loss of eligibility or entitlement for coverage by the sponsor
will result in termination of the dependent's TYA coverage unless
otherwise specified. The effective date of the sponsor's loss of
eligibility for care will also be the effective date of termination of
benefits under the TYA program unless specified otherwise.
(A) Active duty military sponsor. TYA coverage ends effective the
date of military sponsor's separation from military service, unless the
dependent would be eligible under section 199.3(e) of this Part but for
the dependent's age, for the duration of the Transitional Assistance
Management Program (TAMP) eligibility or until reaching age 26,
whichever comes first. Upon the death of an active duty sponsor,
dependents eligible for Transitional Survivor coverage may purchase TYA
coverage if otherwise qualified.
(B) Selected Reserve (Sel Res) Sponsor. Sel Res sponsors must be
currently enrolled in TRICARE Reserve Select (TRS) before a young adult
dependent is eligible to purchase TYA. If TRS coverage is terminated by
the sponsor, TYA coverage ends effective the same
[[Page 378]]
termination date as the sponsor. If the Sel Res sponsor dies while
enrolled in TRS, the young adult dependent is eligible to purchase TYA
coverage for six months after the date of death of the Sel Res sponsor,
if otherwise qualified.
(C) Retired Reserve Sponsor. Retired Reserve members not yet
eligible for retired or retainer pay must be enrolled in TRICARE Retired
Reserve (TRR) to establish TYA eligibility for their young adult
dependents. If TRR coverage is terminated by the sponsor, the TYA
coverage for the young adult dependent ends effective the same date as
the sponsor's termination of coverage under TRR. If the retired reserve
sponsor dies while enrolled in TRR, the young adult dependent may
continue to purchase TYA coverage until the date on which the deceased
member would have attained age 60, if otherwise qualified. If the
Retired Reserve member dies and is not enrolled in TRR, there is no
eligibility for TYA coverage until the sponsor would have reached age
60. On the date the Retired Reserve member would have reached 60, a
young adult dependent who otherwise qualifies for TYA qualifies as a
dependent of a deceased retired sponsor and can purchase TYA coverage.
(ii) Failure of a young adult dependent to maintain the eligibility
qualifications in paragraph (b) of this section shall result in the
termination of coverage under the TYA program. The effective date of
termination shall be the date upon which the adult young dependent
failed to meet any of the prerequisite qualifications. If a subsequent
change in circumstances re-establishes eligibility (such as losing
eligibility for an eligible employer-sponsored plan), the young adult
dependent may re-enroll for coverage under the TYA program.
(iii) Coverage may also be terminated due to a change in the
sponsor's status, and the young adult dependent must re-qualify and
reapply for TYA coverage within 30 days of termination to preclude a gap
in coverage.
(iv) Termination of coverage results in denial of claims for
services with a date of service after the effective date of termination.
(v) Coverage may be terminated for young adult dependents upon
request at any time by submitting a completed request in the appropriate
format in accordance with established procedures.
(vi) In accordance with the provisions of Sec. 199.17(o)(2),
coverage terminates for young adult dependents who fail to make premium
payments in accordance with established procedures.
(vii) Absent a new qualifying event, young adults are not eligible
to re-enroll in TYA until the next annual open season.
(3) Eligibility for the Continued Health Care Benefit Program. Upon
termination of eligibility to purchase TYA coverage, dependents may
purchase coverage for up to 36 months through the Continued Health Care
Benefit Program under Sec. 199.20 unless locked out of TYA.
(4) Changing coverage. Upon application and payment of appropriate
premiums, qualified dependents already enrolled in and who are current
in their premium payments may elect to change to another TRICARE program
for which the qualified dependent is eligible based on the sponsor's
eligibility and the geographic location of the qualified young adult
dependent. Upon change in sponsor status (for example, active duty to
retired status), TYA coverage may be automatically transferred to the
appropriate TRICARE option consistent with the sponsor's new status.
Recurring TYA premiums may be adjusted accordingly. Administrative
processes may be established for changes in program enrollment; however,
no change shall be effective until the applicable premium has been paid.
(e) Preemption of State laws.--The preemption provisions of Sec.
199.17(a)(7) are applicable to the TYA program.
(f) Administration. The Director may establish other processes,
policies and procedures for the effective administration of the TYA
Program and may authorize exceptions to requirements of this section, if
permitted.
[78 FR 32119, May 29, 2013, as amended at 82 FR 45460, Sept. 29, 2017]
Sec. Appendix A to Part 199--Acronyms
AFR--Air Force Regulation
AR--Army Regulation
ASD (HA)--Assistant Secretary of Defense (Health Affairs)
[[Page 379]]
CCLR--Claims Collection Litigation Report
CEOB--CHAMPUS Explanation of Benefits
CFR--Code of Federal Regulations
CHAMPUS--Civilian Health and Medical Program of the Uniformed Services
CRD--Chronic Renal Disease
CT--Computerized Tomography
DASD (A)--Deputy Assistant Secretary of Defense (Administration)
D.D.S.--Doctor of Dental Surgery
DEERS--Defense Enrollment Eligibility Reporting System
DHHS--Department of Health and Human Services
D.M.D.--Doctor of Dental Medicine
DME--Durable Medical Equipment
D.O.--Doctor of Osteopathy
DoD--Department of Defense
DSM-III--Diagnostic and Statistical Manual of Mental Disorders (Third
Edition)
ECHO--Extended Care Health Option
EEG--Electroencephalogram
EST--Electroshock Therapy
FAR--Federal Acquisition Regulation
FEHBP--Federal Employees Health Benefits Program
FMCRA--Federal Medical Care Recovery Act
FR--Federal Register
HBA--Health Benefits Advisor
HL--Hearing Threshold Level
Hz--Hertz
ICD-9-CM--International Classification of Diseases, 9th Revision,
Clinical Modification
ICU--Intensive Care Unit
IQ--Intelligence Quotient
JCAH--Joint Commission on Accreditation of Hospitals
L.P.N.--Licensed Practical Nurse
L.V.N.--Licensed Vocational Nurse
MBD--Minimal Brain Dysfunction
MCO--Marine Corps Order
M.D.--Doctor of Medicine
MIA--Missing in Action
NATO--North Atlantic Treaty Organization
NAVMILPERSCOMINST--Navy Military Personnel Command Instruction
NAVPERS--Navy Personnel
NOAA--National Oceanic and Atmospheric Administration
OCHAMPUS--Office of Civilian Health and Medical Program of the Uniformed
Services
OCHAMPUSEUR--Office of Civilian Health and Medical Program of the
Uniformed Services for Europe
OCHAMPUSPAC--Office of Civilian Health and Medical Program of the
Uniformed Services for the Pacific Area
OCHAMPUSSO--Office of Civilian Health and Medical Program of the
Uniformed Services for the Southern Hemisphere
OMB--Office of Management and Budget
PKU--Phenylketonuria
R.N.--Registered Nurse
RTC--Residential Treatment Center
SNF--Skilled Nursing Facility
STF--Specialized Treatment Facility
U.S.C.--United States Code
USPHS--U.S. Public Health Service
[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 63
FR 48448, Sept. 10, 1998; 69 FR 44952, July 28, 2004; 69 FR 51569, Aug.
20, 2004]
PART 202_RESTORATION ADVISORY BOARDS--Table of Contents
Subpart A_General Requirements
Sec.
202.1 Purpose, scope, definitions, and applicability.
202.2 Criteria for establishment.
202.3 Notification of formation of a restoration advisory board.
202.4 Composition of a RAB.
Subpart B_Operating Requirements
202.5 Creating a mission statement.
202.6 Selecting co-chairs.
202.7 Developing operating procedures.
202.8 Training RAB members.
202.9 Conducting RAB meetings.
202.10 RAB adjournment and dissolution.
202.11 Documenting RAB activities.
Subpart C_Administrative Support, Funding, and Reporting Requirements
202.12 Administrative support and eligible expenses.
202.13 Technical assistance for public participation.
202.14 Documenting and reporting activities and expenses.
Authority: 5 U.S.C. 551 et seq. and 10 U.S.C. 2705.
Source: 71 FR 27618, May 12, 2006, unless otherwise noted.
Subpart A_General Requirements
Sec. 202.1 Purpose, scope, definitions, and applicability.
(a) Purpose. The purpose of this part to establish regulations
regarding the scope, characteristics, composition, funding,
establishment, operation, adjournment, and dissolution of Restoration
Advisory Boards (RABs).
(b) Purpose and scope of responsibilities of RABs. The purpose of a
RAB is to provide:
(1) An opportunity for stakeholder involvement in the environmental
restoration process at Department of Defense (DoD) installations.
Stakeholders
[[Page 380]]
are those parties that may be affected by environmental restoration
activities at the installation.
(2) A forum for the early discussion and continued exchange of
environmental restoration program information between DoD installations,
regulatory agencies, tribes, and the community.
(3) An opportunity for RAB members to review progress, participate
in a dialogue with, and provide comments and advice to the
installation's decision makers concerning environmental restoration
matters. Installations shall give careful consideration to the comments
provided by the RAB members.
(4) A forum for addressing issues associated with environmental
restoration activities under the Defense Environmental Restoration
Program (DERP) at DoD installations, including activities conducted
under the Military Munitions Response program (MMRP) to address
unexploded ordnance, discarded military munitions, and the chemical
constituents of munitions. Environmental groups or advisory boards that
address issues other than environmental restoration activities are not
governed by this regulation.
(c) Definitions. In this section:
(1) Community RAB member shall mean those individuals identified by
community members and appointed by the Installation Commander to
participate in a RAB who live and/or work in the affected community or
are affected by the installation's environmental restoration program.
(2) Environmental restoration shall include the identification,
investigation, research and development, and cleanup of contamination
from hazardous substances, including munitions and explosives of
concern, and pollutants and contaminants.
(3) Installation shall include active and closing DoD installations
and formerly used defense sites (FUDS).
(4) Installation Commander shall include the Commanding Officer or
the equivalent of a Commanding Officer at active installations; the
Installation Commander or other Military Department officials who close
the facility and are responsible for its disposal at Base Realignment
and Closure (BRAC) installations; or the U.S. Army Corps of Engineers
Project Management District Commander at FUDS.
(5) Public participants shall include anyone else who may want to
attend the RAB meetings, including those individuals that may not live
and/or work in the affected community or may not be affected by the
installation's environmental restoration program but would like to
attend and provide comments to the RAB.
(6) Stakeholders are those parties that may be affected by
environmental restoration activities at an installation, including
family members of military personnel and civilian workers, local and
state governments and EPA for NPL properties, tribal community members
and indigenous people, and current landowners, as appropriate.
(7) Tribes shall mean any Federally-recognized American Indian and
Alaska Native government as defined by the most current Department of
Interior/Bureau of Indian Affairs list of tribal entities published in
the Federal Register pursuant to Section 104 of the Federally Recognized
Tribe Act.
(8) RAB adjournment shall mean when an Installation Commander, in
consultation with the Environmental Protection Agency (EPA), state,
tribes, RAB members, and the local community, as appropriate, close the
RAB based on a determination that there is no longer a need for a RAB or
when community interest in the RAB declines.
(9) RAB dissolution shall mean when an Installation Commander, with
the appropriate Military Component's Environmental Deputy Assistant
Secretary's approval, disbands a RAB that is no longer fulfilling the
intended purpose of advising and providing community input to an
Installation Commander and decision makers on environmental restoration
projects. Installation Commanders are expected to make every reasonable
effort to ensure that a RAB performs its role as effectively as possible
and a concerted attempt is made to resolve issues that affect the RAB's
effectiveness. There are circumstances, however, that may prevent a RAB
from operating effectively or fulfilling its intended purpose.
[[Page 381]]
(d) Other public involvement activities. A RAB should complement
other community involvement efforts occurring at an installation;
however, it does not replace other types of community outreach and
participation activities required by applicable laws and regulations.
(e) Applicability of regulations to existing RABs. The regulations
in this part apply to all RABs regardless of when the RAB was
established.
(f) Guidance. The Office of the Deputy Under Secretary of Defense
for Environment shall issue guidance regarding the scope,
characteristics, composition, funding, establishment, operation,
adjournment, and dissolution of RABs pursuant to this rule. The issuance
of any such guidance shall not be a precondition to the establishment of
RABs or the implementation of this part.
[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]
Sec. 202.2 Criteria for establishment.
(a) Determining if sufficient interest warrants establishing a RAB.
A RAB should be established when there is sufficient and sustained
community interest, and any of the following criteria are met:
(1) The closure of an installation involves the transfer of property
to the community,
(2) At least 50 local citizens petition the installation for
creation of a RAB,
(3) Federal, state, tribal, or local government representatives
request the formation of a RAB, or
(4) The installation determines the need for a RAB. To determine the
need for establishing a RAB, an installation should:
(i) Review correspondence files,
(ii) Review media coverage,
(iii) Consult local community members,
(iv) Consult relevant government officials, and
(v) Evaluate responses to communication efforts, such as notices
placed in local newspapers and, if applicable, announced on the
installation's Web site.
(b) Responsibility for forming or operating a RAB. The installation
shall have lead responsibility for forming and operating a RAB.
(c) Converting existing Technical Review Committees (TRCs) to RABs.
In accordance with 10 U.S.C. 2705(d)(1), a RAB may fulfill the
requirements of 10 U.S.C. 2705(c), which directs DoD to establish TRCs.
DoD recommends that, where TRCs or similar advisory groups already
exist, the TRC or similar advisory group be considered for conversion to
a RAB, provided there is sufficient and sustained interest within the
community.
[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]
Sec. 202.3 Notification of formation of a Restoration Advisory Board.
Prior to establishing a RAB, an installation shall notify potential
stakeholders of its intent to form a RAB. In announcing the formation of
a RAB, the installation should describe the purpose of a RAB and discuss
opportunities for membership.
Sec. 202.4 Composition of a RAB.
(a) Membership. At a minimum, each RAB shall include representatives
from DoD and the community. RAB community membership shall be well
balanced and reflect the diverse interests within the local community.
(1) Government representation. The RAB may also include
representatives from the EPA at the discretion of the Regional
Administrator of the appropriate EPA Regional Office, and state, tribal,
and local governments, as appropriate. At closing installations where
BRAC Cleanup Teams (BCT) exist, representatives of the BCT may also
serve as the government representative(s) of the RAB. The Department
encourages individuals and agencies involved with BRAC to participate in
RABs at closing installations.
(2) Community representation. Community RAB members should live and/
or work in the affected community or be affected by the installation's
environmental restoration program. While DoD encourages individual
tribal members to participate on RABs, RABs in no way replace or serve
as a substitute forum for the government-to-government relationship
between DoD and Federally-recognized tribes.
[[Page 382]]
(i) To support the objective selection of community RAB members,
installations will use a selection panel comprised of community members
to nominate community RAB members. The Installation Commander, in
consultation with the state, tribal, and local governments and EPA, as
appropriate, will identify community interests and solicit names of
individuals who can represent these interests on the selection panel.
The panel will establish the procedures for nominating community RAB
members, the process for reviewing community interest, and criteria for
selecting community RAB members. The panel will transmit the list of RAB
nominees to the Installation Commander for appointment.
(ii) Following the panel nominations, the Installation Commander, in
consultation with the state and EPA, as appropriate, will review the
nominations to ensure the panel fairly represents the local community.
The Installation Commander will accept or reject the entire list of RAB
nominees for appointment.
(b) Chairmanship. Each RAB established shall have two co-chairs, one
representing the DoD installation and the other the community. Co-chairs
shall be responsible for directing and managing the RAB operations.
(c) Compensation for community members of the RAB. The community co-
chair and community RAB members serve voluntarily. DoD will not
compensate them for their participation.
[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]
Subpart B_Operating Requirements
Sec. 202.5 Creating a mission statement.
The installation and community co-chair, in conjunction with the RAB
members, shall determine the RAB mission statement in accordance with
guidance provided by the DoD Components.
Sec. 202.6 Selecting co-chairs.
(a) DoD installation co-chair. The DoD installation co-chair shall
be selected by the Installation Commander or equivalent, or in
accordance with Military Component-specific guidance.
(b) Community co-chair. The community co-chair shall be selected by
the community RAB members.
[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]
Sec. 202.7 Developing operating procedures.
Each RAB shall develop a set of operating procedures and the co-
chairs are responsible for carrying them out. Areas that should be
addressed in the procedures include:
(a) Clearly defined goals and objectives for the RAB, as determined
by the co-chairs in consultation with the RAB,
(b) Meeting announcements,
(c) Attendance requirements of members at meetings,
(d) Development, approval and distribution procedures for the
minutes of RAB meetings,
(e) Meeting frequency and location,
(f) Rules of order,
(g) The frequency and procedures for conducting training,
(h) Procedures for selecting or replacing co-chairs and selecting,
replacing, or adding RAB members,
(i) Specifics on the size of the RAB, periods of membership, and co-
chair length of service,
(j) Review of public comments and responses,
(k) Participation of the general public,
(l) Keeping the public informed about proceedings of the RAB,
(m) Discussing the agenda for the next meeting and issues to be
addressed, and
(n) Methods for resolving disputes.
Sec. 202.8 Training RAB members.
Training is not required for RAB members. It may be advisable,
however, to provide RAB members with some initial orientation training
regarding the purpose and responsibilities of the RAB, familiarization
on cleanup technologies, chemicals of concern, and sampling protocols,
as well as informing them of the availability of independent technical
advice and document review through EPA's Technical Assistant Grant
program and DoD's
[[Page 383]]
Technical Assistance for Public Participation (TAPP) program, to enable
them to fulfill their responsibilities. Training should be site-specific
and beneficial to RAB members. The DoD installation may also provide in-
house assistance to discuss technical issues. Funding for training
activities must be within the scope of administrative support for RABs,
as permitted in Sec. 202.12.
Sec. 202.9 Conducting RAB meetings.
(a) Public participation. RAB meetings shall be open to the public.
(1) The installation co-chair shall prepare and publish a timely
public notice in a local newspaper of general circulation announcing
each RAB meeting. If applicable, it is recommended that the meeting also
be announced on the installation's Web site.
(2) Each RAB meeting shall be held at a reasonable time and in a
manner or place reasonably accessible to and usable by all participants,
including persons with disabilities.
(3) Presentation materials and readable maps should be provided to
all meeting participants as appropriate.
(4) Interested persons shall be permitted to attend, appear before,
or file statements with any RAB, subject to such reasonable rules or
regulations as may be prescribed. Open solicitation of public comments
shall be permitted and members of the public will have a designated time
on the agenda to speak to the RAB committee as a whole.
(b) Nature of discussions. The installation shall give careful
consideration to all comments provided by individual RAB members. Group
consensus is not a prerequisite for RAB input. Each member of the RAB
may provide advice as an individual; however, when a RAB decides to vote
or poll for consensus, only community members should participate.
(c) Meeting minutes. The installation co-chair, in coordination with
the community co-chair, shall prepare the minutes of each RAB meeting.
(1) The RAB meeting minutes shall contain a record of the persons
present; a complete and accurate description of matters discussed and
comments received; and copies of all reports received, issued, or
approved by the RAB. The accuracy of all minutes shall be certified by
the RAB co-chairs. RAB minutes should be kept in the information
repository; however, if the RAB minutes reflect decision-making, copies
should also be documented in the Administrative Record.
(2) The records, reports, minutes, appendixes, working papers,
drafts, studies, agenda, or other documents that were made available to
or prepared for or by each RAB shall be available for public inspection
and copying at a publicly accessible location, such as the information
repositories established under the installation's Community Relations
Plan, a public library, or in the offices of the installation to which
the RAB reports, until the RAB ceases to exist.
[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]
Sec. 202.10 RAB adjournment and dissolution.
(a) RAB adjournment--(1) Requirements for RAB adjournment. An
Installation Commander may adjourn a RAB with input from the community
when there is no longer a need for a RAB or when community interest in
the RAB no longer exists. An Installation Commander may consider
adjourning the RAB in the following situations:
(i) A record of decision has been signed for all DERP sites on the
installation,
(ii) An installation has achieved response complete at all sites and
no further environmental restoration decisions are required,
(iii) An installation has all remedies in place,
(iv) The RAB has achieved the desired end goal as defined in the RAB
Operating Procedures,
(v) There is no longer sufficient, sustained community interest, as
documented by the installation with RAB community members and community-
at-large input, to sustain the RAB. The installation shall continue to
monitor for any changes in community interest that could warrant
reactivating or reestablishing the RAB, or
(vi) The installation has been transferred out of DoD control and
day-to-day responsibility for making restoration response decisions has
been assumed by the transferee.
[[Page 384]]
(2) Adjournment procedures. If the Installation Commander is
considering adjourning the RAB, the Installation Commander shall:
(i) Consult with EPA, state, tribes, RAB members, and the local
community, as appropriate, regarding adjourning the RAB and consider all
responses before making a final decision.
(ii) Document the rationale for adjournment in a memorandum in a
memorandum for inclusion in the Administrative Record, notify the public
of the decision through written notice to the RAB members and through
publication of a notice in a local newspaper of general circulation, and
describe other ongoing public involvement opportunities that are
available if the Installation Commander decides to adjourn the RAB.
(b) RAB dissolution--(1) Requirements for RAB dissolution. An
Installation Commander may recommend dissolution of a RAB when a RAB is
no longer fulfilling the intended purpose of advising and providing
community input to an Installation Commander and decision makers on
environmental restoration projects as described in Sec. 202.1(b).
(2) Dissolution procedures. If the Installation Commander is
considering dissolving the RAB, the Installation Commander shall:
(i) Consult with EPA, state, tribal and local government
representatives, as appropriate, regarding dissolving the RAB.
(ii) Notify the RAB community co-chair and members in writing of the
intent to dissolve the RAB and the reasons for doing so and provide the
RAB members 30 days to respond in writing. The Installation Commander
shall consider RAB member responses, and in consultation with EPA,
state, tribal and local government representatives, as appropriate,
determine the appropriate actions.
(iii) Notify the public of the proposal to dissolve the RAB and
provide a 30-day public comment period on the proposal, if the
Installation Commander decides to proceed with dissolution. At the
conclusion of the public comment period, the Installation Commander will
review the public comments, consult with EPA, state, tribal and local
government representatives, as appropriate, and, if the Installation
Commander still believes dissolution is appropriate, render a
recommendation to that effect.
(iv) Send the recommendation, responsiveness summary, and all
supporting documentation via the chain-of-command to the Military
Component's Environmental Deputy Assistant Secretary (or equivalent) for
approval or disapproval. The Military Component's Environmental Deputy
Assistant Secretary (or equivalent) shall notify the Office of the
Deputy Under Secretary of Defense (Installations & Environment) (or
equivalent) of the decision to approve or disapprove the request to
dissolve the RAB and the rationale for that decision.
(v) Document the recommendation, responsiveness summary, and the
rationale for dissolution in a memorandum for inclusion in the
Administrative Record, notify the public of the decision through written
notice to the RAB members and through publication of a notice in a local
newspaper of general circulation and describe other ongoing public
involvement opportunities that are available, once the Military
Component's Environmental Deputy Assistant Secretary (or equivalent)
makes a final decision.
(c) Reestablishing an adjourned or dissolved RAB. An Installation
Commander may reestablish an adjourned or dissolved RAB if there is
sufficient and sustained community interest in doing so, and there are
environmental restoration activities still ongoing at the installation
or that may start up again. Where a RAB is adjourned or dissolved and
environmental restoration activities continue, the Installation
Commander should reassess community interest at least every 24 months.
When all environmental restoration decisions have been made and required
remedies are in place and are properly operating at an installation,
reassessment of the community interest for reestablishing the RAB is not
necessary. When additional environmental restoration decisions have to
be made resulting from subsequent actions, such as long-term management
and five-year reviews, the installation will reassess community interest
for
[[Page 385]]
reestablishing the RAB. Where the reassessment finds sufficient and
sustained community interest at previously adjourned or dissolved RABs,
the Installation Commander should reestablish a RAB. Where the
reassessment does not find sufficient and sustained community interest
in reestablishing the RAB, the Installation Commander shall document in
a memorandum for the record the procedures followed in the reassessment
and the findings of the reassessment. This document shall be included in
the Administrative Record for the installation. If there is interest in
reestablishment at a previously dissolved RAB, but the Installation
Commander determines that the same conditions exist that required the
original dissolution, he or she will request, through the chain-of-
command to the Military Component's Deputy Assistant Secretary, an
exception to reestablishing the RAB. If those conditions no longer exist
at a previously dissolved RAB, and there is sufficient and sustained
interest in reestablishment, the Installation Commander should recommend
to the Deputy Assistant Secretary that the RAB be reestablished. The
Deputy Assistant Secretary will take the Installation Commander's
recommendation under advisement and may approve that RAB for
reestablishment.
(d) Public comment. If the Installation Commander intends to
recommend dissolution of a RAB or reestablish a dissolved RAB, the
Installation Commander shall notify the public of the proposal to
dissolve or reestablish the RAB and provide a 30-day public comment
period on the proposal. At the conclusion of the public comment period,
the Installation Commander shall review public comments; consult with
EPA and state, tribal, or local government representatives, as
appropriate; prepare a responsiveness summary; and render a
recommendation. The recommendation, responsiveness summary, and all
supporting documentation should be sent via the chain-of-command to the
Military Component's Environmental Deputy Assistant Secretary (or
equivalent) for approval or disapproval. The Installation Commander
shall notify the public of the decision.
Sec. 202.11 Documenting RAB activities.
(a) The installation shall document information on the activities of
a RAB in the Information Repository. These activities shall include, but
are not limited to:
(1) Installation's efforts to survey community interest in forming a
RAB,
(2) Steps taken to establish a RAB where there is sufficient and
sustained community interest,
(3) How the RAB relates to the overall community involvement
program, and
(4) Steps taken to adjourn, dissolve, or reestablish the RAB.
(b) When RAB input has been used in decision-making, it should be
documented as part of the Administrative Record.
[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]
Subpart C_Administrative Support, Funding, and Reporting Requirements
Sec. 202.12 Administrative support and eligible expenses.
(a) Administrative support. Subject to the availability of funding,
the installation shall provide administrative support to establish and
operate a RAB.
(b) Eligible administrative expenses for a RAB. The following
activities specifically and directly associated with establishing and
operating a RAB shall qualify as an administrative expense of a RAB:
(1) RAB establishment.
(2) Membership selection.
(3) Training if it is:
(i) Site specific and benefits the establishment and operation of a
RAB.
(ii) Relevant to the environmental restoration activities occurring
at the installation.
(4) Meeting announcements.
(5) Meeting facilities.
(6) Meeting facilitators, including translators.
(7) Preparation of meeting agenda materials and minutes.
(8) RAB-member mailing list maintenance and RAB materials
distribution.
[[Page 386]]
(c) Funding. Subject to the availability of funds, administrative
support to RABs may be funded as follows:
(1) At active installations, administrative expenses for a RAB shall
be paid using funds from the Military Component's Environmental
Restoration accounts.
(2) At BRAC installations, administrative expenses for a RAB shall
be paid using BRAC funds.
(3) At FUDS, administrative expenses for a RAB shall be paid using
funds from the Environmental Restoration account for the Formerly Used
Defense Sites program.
Sec. 202.13 Technical assistance for public participation.
Community members of a RAB or TRC may request technical assistance
for interpreting scientific and engineering issues with regard to the
nature of environmental hazards at the installation and environmental
restoration activities conducted, or proposed to be conducted, at the
installation in accordance with 10 U.S.C. 2705(e) and the TAPP
regulations located in 32 CFR Part 203.
Sec. 202.14 Documenting and reporting activities and expenses.
The installation at which a RAB is established shall document the
activities and meeting minutes and record the administrative expenses
associated with the RAB in the information repository at a publicly
accessible location. Installations shall use internal department and
Military Component-specific reporting mechanisms to submit required
information on RAB activities and expenditures.
PART 203_TECHNICAL ASSISTANCE FOR PUBLIC PARTICIPATION (TAPP)
IN DEFENSE ENVIRONMENTAL RESTORATION ACTIVITIES--Table of Contents
Sec.
203.1 Authority.
203.2 Purpose and availability of referenced material.
203.3 Definitions.
203.4 Major components of the TAPP process.
203.5 TAPP process.
203.6 Cost principles.
203.7 Eligible applicants.
203.8 Evaluation criteria.
203.9 Submission of application.
203.10 Eligible activities.
203.11 Ineligible activities.
203.12 Technical assistance for public participation provider
qualifications.
203.13 Procurement.
203.14 RAB/TRC reporting requirements.
203.15 Method of payment.
203.16 Record retention and audits.
203.17 Technical assistance provider reporting requirements.
203.18 Conflict of interest and disclosure requirements.
203.19 Appeals process.
Appendix A to Part 203--Technical Assistance for Public Participation
Application Request Form
Authority: 10 U.S.C. 2705.
Source: 63 FR 5261, Feb. 2, 1998, unless otherwise noted.
Sec. 203.1 Authority.
Part 203 is issued under the authority of section 2705 of Title 10,
United States Code. In 1994, Congress authorized the Department of
Defense (DoD) to develop a program to facilitate public participation by
providing technical assistance to local community members of Restoration
Advisory Boards (RABs) and Technical Review Committees (TRCs) (section
326 of the National Defense Authorization Act for Fiscal Year 1995,
Pub.L. 103-337). In 1996, Congress revised this authority (section 324
of the National Defense Authorization Act for Fiscal Year 1996, Pub.L.
104-112). It is pursuant to this revised authority, which is codified as
new subsection (3) of section 2705, that the Department of Defense
issues this part.
Sec. 203.2 Purpose and availability of referenced material.
(a) This part establishes the Technical Assistance for Public
Participation (TAPP) program for the Department of Defense. It sets
forth policies and procedures for providing technical assistance to
community members of TRCs and RABs established at DoD installations in
the United States and its territories. This part sets forth the
procedures for the Department of Defense to accept and evaluate TAPP
applications, to procure the assistance desired by community members of
RABs and TRCs, and to manage the TAPP program. These provisions are
[[Page 387]]
applicable to all applicants/recipients of technical assistance as
discussed in Sec. 203.4 of this part.
(b) Any reference to documents made in this part necessary to apply
for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or
DoD forms) are available through the DoD installations, the military
department headquarters, or from the Department of Defense, Office of
the Deputy Under Secretary of Defense for Environmental Security
(DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400.
Sec. 203.3 Definitions.
As used in this part, the following terms shall have the meaning set
forth:
Affected. Subject to an actual or potential health or environmental
threat arising from a release or a threatened release at an installation
where the Secretary of Defense is planning or implementing environmental
restoration activities including a response action under the
Comprehensive Environmental Response Compensation and Liability Act as
amended (CERCLA), corrective action under the Resource Conservation and
Recovery Act (RCRA), or other such actions under applicable Federal or
State environmental restoration laws. This would include actions at
active, closing, realigning, and formerly used defense installations.
Examples of affected parties include individuals living in areas
adjacent to installations whose health is or may be endangered by the
release of hazardous substances at the facility.
Applicant. Any group of individuals that files an application for
TAPP, limited by this part to community members of the RAB or TRC.
Application. A completed formal written request for TAPP that is
submitted to the installation commander or to the identified decision
authority designated for the installation. A completed application will
include a TAPP project description.
Assistance provider. An individual, group of individuals, or company
contracted by the Department of Defense to provide technical assistance
under the Technical Assistance for Public Participation program
announced in this part.
Assistance provider's project manager. The person legally authorized
to obligate the organization executing a TAPP purchase order to the
terms and conditions of the DoD's regulations and the contract, and
designated by the provider to serve as the principal contact with the
Department of Defense.
Community Co-chair. The individual selected by the community members
of the RAB/TRC to represent them.
Community member. A member of the RAB or TRC who is also a member of
the affected community. For the purpose of this part, community members
do not include local, State, or Federal government officials acting in
any official capacity.
Community point of contact. The community member of the RAB or TRC
designated in the TAPP application as the focal point for communications
with the Department of Defense regarding the TAPP procurement process.
The community point of contact is responsible for completing the
reporting requirements specified in Sec. 203.14 of this part.
Contact. A written agreement between the installation or other
instrumentality of the Department of Defense and another party for
services or supplies necessary to complete the TAPP project. Contracts
include written agreements and subagreements for professional services
or supplies necessary to complete the TAPP projects, agreements with
consultants, and purchase orders.
Contracting officer. The Federal official designated to manage the
contract used to fulfill the TAPP request by the RAB or TRC.
Contractor. Any party (e.g., Technical Assistance Provider) to whom
the installation or other instrumentality of the Department of Defense
awards a contract. In the context of this part, it is synonymous with
assistance provider.
Cost estimate. An estimate of the total funding required for the
assistance provider to complete the TAPP project.
DoD Component. The military services including the Army, Navy,
Marine Corps, and Air Force and those defense agencies with an
environmental restoration program.
[[Page 388]]
DoD Component Deputy Assistant Secretary. The individual in the
office of the Secretary of the Army, Navy, Air Force responsible for
making environmental decisions for their component or the director of
the Defense Agencies.
DoD Installation. A facility that is controlled or operated or
otherwise possessed by a department, or agency of the United States
Department of Defense within the United States and its territories. In
the context of this part, formerly used defense sites (FUDS) are
included within the definition of a DoD Installation.
DoD RAB Co-chair. The individual selected by the installation
commander, or equivalent, to serve as the installation co-chair of the
RAB, represent DoD's interests, serve as liaison with community RAB
members, and advocate RAB concerns within the installation staff.
EPA. The United States Environmental Protection Agency.
Firm fixed price contract. A contract wherein funding is fixed,
prior to the initiation of a contract, for an agreed upon service or
product.
Formerly Used Defense Site (FUDS). A site that has been owned by,
leased to, possessed by, or otherwise under the jurisdiction of the
Department of Defense. The FUDS program does not apply to those sites
outside U.S. jurisdiction.
Purchase order. An offer by the Government to buy supplies or
services from a commercial source, upon specified terms and conditions,
the total cost of which cannot exceed the small purchase limit of
$100,000. Purchase orders are governed by Federal Acquisition
Regulations (FAR) (48 CFR part 13), and the Simplified Acquisition
Procedures (SAP).
Restoration Advisory Board (RAB). The RAB is a forum for
representatives of the Department of Defense, local community, and EPA
and/or State, local, and tribal officials to discuss and exchange
information about the installation's environmental restoration program.
The RAB provides stakeholders an opportunity make their views known,
review progress and participate in dialogue with the decision makers.
Statement of Work. That portion of a contract which describes the
actual work to be done by means of specifications or minimum
requirements, quantities, performance dates, time and place of
performance, and quality requirements. It is key to any procurement
because it is the basis for the contractor's response and development of
proposed costs.
TAPP approval. Signifies that the Department of Defense has approved
the eligibility of the proposed TAPP project and will, subject to the
availability of funds, undertake an acquisition to obtain the services
specified in the TAPP application submitted by the RAB or TRC. The
government will conduct the acquisition in accordance with all of the
applicable rules and requirements of the FAR and the SAP. Approval does
not constitute an agreement to direct an award to a specific source if
such an action would be contrary to the FAR.
TAPP project description. A discussion of the assistance requested
that includes the elements listed in Section 203.10 of this part. The
project description should contain sufficient detail to enable the
Department of Defense to determine the nature and eligibility of the
project, identify potential providers and estimate costs, and prepare a
statement of work to begin the procurement process.
Technical assistance. Those activities specified in Sec. 203.10 of
this part that will contribute to the public's ability to provide input
to the decision-making process by improving the public's understanding
of overall conditions and activities. Technical assistance may include
interpreting technical documents; assessing technologies; participating
in relative risk evaluations, understanding health implications; and,
training.
Technical assistance does not include those activities prohibited
under Section 203.11 of this part, such as litigation or underwriting
legal actions; political activity; generation of new primary data such
as well drilling and testing, including split sampling; reopening final
DoD decisions or conducting disputes with the Department of Defense; or
epidemiological or health studies, such as blood or urine testing.
[[Page 389]]
Technical Review Committee (TRC). A group comprised of the
Department of Defense, EPA, State, and local authorities and a public
representative of the community formed to meet the requirements of 10
U.S.C. 2705(c), the Department of Defense Environmental Restoration
Program. Primarily functioning to review installation restoration
documents, these committees are being expanded and modified at
installations where interest or need necessitates the creation of a RAB.
Sec. 203.4 Major components of the TAPP process.
(a) The Department of Defense will issue purchase orders to
technical assistance, facilitation, training, and other public
participation assistance providers subject to the purchase limit per
order as resources continue to be available. If multiple purchase orders
are needed to assist community members of a particular RAB or TRC, the
combined sum of these purchase orders cannot exceed $100,000 or, during
any one year, the lesser of $25,000 or 1 percent of the installation's
total projected environmental restoration cost-to-complete. Note that
these limitations refer to the maximum allowable technical assistance
funding per RAB/TRC. Resources available within a given year may vary.
These limitations apply unless a waiver is granted by the DoD Component
Secretary or equivalent for the installation in question. The $100,000
total and $25,000 annual limitations may be waived, as appropriate, to
reflect the complexity of response action, the nature and extent of
contamination at the installation, the level of activity at the
installation, projected total needs as identified by the TAPP recipient,
the size and diversity of the affected population, and the ability of
the TAPP recipient to identify and raise funds from other sources.
(b) Community members of the RAB/TRC will provide a description of
the services requested (TAPP Project Description) and, if desired, the
names of one or more proposed technical assistance providers to the DoD
RAB Co-Chair, who will ensure the application is submitted to the
installation commander or other designated authority and to the
appropriate DoD contracting office. Technical assistance providers
proposed by the community members of a RAB or TRC at each DoD
installation that meets the minimum set of organizational qualifications
guidelines provided by the Department of Defense in Sec. 203.12 of this
part will be added to the governments list of bidders for the proposed
procurement.
Sec. 203.5 TAPP process.
This section provides an overview of the TAPP process. Specific
details referred to in this section can be found in subsequent sections
of this part.
(a) TAPP funding. Funding for this TAPP program will come from the
Environmental Restoration Accounts established for Army, Navy, and Air
Force for operational installations. The funding for Defense Agencies'
operating installations will be from the Defense-Wide Environmental
Restoration Account. Funding will be from the component's base closure
account for transferring or closing installations. Funding for Formerly
Used Defense Sites will come from the Environmental Restoration Account
established for Formerly Used Defense Sites. After justification of the
TAPP proposal, each DoD Component will make funds available from their
individual installation's environmental restoration or BRAC accounts,
considering a number of factors related to the restoration program at
the installation and its impact upon the community. These factors
include, but are not limited to:
(1) Closure status.
(2) Budget.
(3) Installation restoration program status.
(4) Presence (or absence) of alternate funding.
(5) Relative risk posed by sites at the installation.
(6) Type of task to be funded.
(7) Community concern.
(8) Available funding.
(b) Identification of proposed TAPP project. Eligible applicants of
RABs and TRCs, established in Sec. 203.7 of this part, should determine
whether a TAPP project is required to assist the community members of
the RAB or TRC to interpret information regarding the nature and extent
of contamination or
[[Page 390]]
the proposed remedial actions. Eligibility requirements for TAPP
projects are described in Sec. Sec. 203.10 and 203.11 of this part. In
keeping with the requirements of 10 U.S.C. 2705(e), the RAB or TRC must
be able to demonstrate that the technical expertise necessary for the
proposed TAPP project is not available through the Federal, State, or
local agencies responsible for overseeing environmental restoration at
the installation, or that the selection of an independent provider will
contribute to environmental restoration activities and the community
acceptance of such activities. In addition, the Department of Defense
encourages the RAB or TRC to seek other available sources of assistance
prior to submitting a request for TAPP in order to preserve limited
resources. These sources include DoD's installation restoration
contractor, or other DoD contractors or personnel, EPA or state
regulatory personnel, volunteer services from local universities or
other experts, or assistance from state and local health and
environmental organizations.
(c) TAPP project request. The RAB or TRC should notify the
installation of its intent to pursue TAPP upon the determination that
other sources of assistance are unavailable or unlikely to contribute to
the community acceptance of environmental restoration activities at the
installation and should prepare a formal request specifying the type of
assistance required and, if desired, one or more sources for this
assistance. Details concerning this request are stated in Sec. 203.9 of
this part. The RAB or TRC must certify to the Department of Defense that
the TAPP request represents a request by a majority of the community
members of the RAB or TRC. The RAB or TRC should ensure that the request
meets the eligibility requirements specified in Sec. Sec. 203.10 and
203.11 of this part. Furthermore, the RAB or TRC may outline additional
criteria for the Department of Defense to consider in the selection of a
provider (such as knowledge of local environmental conditions or
specific technical issues, a prior work history within the study area
which has relevant specific circumstances or unique challenges, or other
relevant expertise or capabilities), keeping in mind that providers must
meet the minimum technical qualifications outlined in Sec. 203.12 of
this part. The formal request should be submitted to the installation
commander or designated decision authority, either directly, or through
the DoD RAB Co-chair. The installation commander, or other designated
decision authority, will review the proposed project to determine
whether the proposed project conforms to the eligibility requirements.
If the installation commander, or other designated authority, fails to
approve the project request, the rationale for that decision will be
provided to the RAB/TRC in writing.
(d) Purchase orders. Upon receipt of a completed TAPP request, the
installation will begin the procurement process necessary to obtain the
desired services by means of a purchase order or will forward the
request to the contracting authority designated by the DoD Component to
act for that installation. The government is required to follow the
rules and regulations for purchase orders as outlined in the FAR (48 CFR
part 13). As a result, the government cannot direct awards to a
specified supplier unless the procurement is under $2,500, and then only
if the cost is comparable to other suppliers. For procurements over
$2,500 but under $100,000, the acquisition is reserved for small
businesses, unless there is a reasonable expectation that small
businesses could not provide the best scientific and technological
sources consistent with the demands of the proposed acquisition for the
best mix of cost, performance, and schedules. Furthermore, the award
must be on a competitive basis. In addition to proposing potential
providers, the application for technical assistance may indicate
specific criteria or qualifications that are deemed necessary by the
RAB/TRC for the completion of the project to their satisfaction. This
information will be used to assist the Department of Defense in
preparing a bidders list. The Department of Defense will solicit bids
from those providers meeting the criteria and will select a provider
offering the best value to the government. Should the procurement
process identify a qualified respondent
[[Page 391]]
other than the proposed provider(s) identified by the RAB/TRC or fail to
identify any qualified respondents, the RAB/TRC will be consulted prior
to the award of a purchase order. If the Department of Defense
determines that the TAPP request represents an eligible project for
which no funds are available, it will ask the RAB or TRC to specify
whether the project should be reconsidered upon the availability of
additional funds.
(e) Reporting requirements. The applicant must assure that copies of
delivered reports are made available to the Department of Defense and
must comply with the reporting requirements established in Sec. 203.14
of this part.
Sec. 203.6 Cost principles.
(a) Non-profit contractors must comply with the cost principles in
OMB Circular A-122. Copies of the circular may be obtained from EOP
Publications, 725 17th NW, NEOB, Washington, DC 20503.
(b) For-profit contractors and subcontractors must comply with the
cost principles in the FAR (48 CFR part 31).
Sec. 203.7 Eligible applicants.
Eligible applicants are community members of RABs or TRCs.
Furthermore, the RABs or TRCs must be comprised of at least three
community members to ensure community interests are broadly represented.
The applicant must certify that the request represents the wishes of a
simple majority of the community members of the RAB or TRC.
Certification includes, but is not limited to, the results of a roll
call vote of community members of the RAB or TRC documented in the
meeting minutes. Other requirements of the application are detailed in
Sec. 203.9 of this part.
Sec. 203.8 Evaluation criteria.
The Department of Defense will begin the TAPP procurement process
only after it has determined that all eligibility and responsibility
requirements listed in Sec. Sec. 203.6, 203.7, and 203.9 of this part
are met, and after review of the specific provider qualifications as
submitted in the narrative section of the application. In addition, the
proposed TAPP project must meet the eligibility criteria as specified in
Sec. Sec. 203.10 and 203.11 of this part. Projects that fail to meet
those requirements relating to the relevance of the proposed project to
the restoration activities at the installation will not be approved.
Sec. 203.9 Submission of application.
The applicant must submit a TAPP application to begin the TAPP
procurement process. The application form is included as appendix A of
this part and can be obtained from the DoD installation, the DoD
Component headquarters, or directly from the Department of Defense,
Office of the Deputy Under Secretary of Defense for Environmental
Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The
applications will not be considered complete until the following data
elements have been entered into the form:
(a) Installation.
(b) Source of TAPP request (names of RAB or TRC).
(c) Certification of majority request.
(d) RAB/TRC contact point for TAPP project.
(e) Project title.
(f) Project type (e.g. data interpretation, training, etc.).
(g) Project purpose and description (descriptions, time and
locations of products or services desired).
(h) Statement of eligibility of project.
(i) Proposed provider, if known.
(j) Specific qualifications or criteria for provider.
Sec. 203.10 Eligible activities.
(a) TAPP procurements should be pursued by the RAB or TRC only to
the extent that Federal, State, or local agencies responsible for
overseeing environmental restoration at the facility do not have the
necessary technical expertise for the proposed project, or the proposed
technical assistance will contribute to the efficiency, effectiveness,
or timeliness of environmental restoration activities at the
installation and is likely to contribute to community acceptance of
those activities.
(b) TAPP procurements may be used to fund activities that will
contribute to the public's ability to provide advice to decision-makers
by improving the
[[Page 392]]
public's understanding of overall conditions and activities. Categories
of eligible activities include the following:
(1) Interpret technical documents. The installation restoration
program documents each stage of investigation and decision-making with
technical reports that summarize data and support cleanup decisions.
Technical assistance may be provided to review plans and interpret
technical reports for community members of RABs and TRCs. These reports
include, but are not limited to:
(i) Installation restoration program site studies, engineering
documents, such as site inspections, remedial investigations,
feasibility studies, engineering evaluation and cost analyses, and
decision documents (including records of decision);
(ii) Risk assessments, including baseline and ecological risk
assessments conducted by the installation; and
(iii) Health assessments, such as those conducted by the Agency for
Toxic Substances and Disease Registry (ATSDR).
(2) Assess technologies. Technical assistance may be provided to
help RAB/TRC community members understand the function and implications
of those technologies selected to investigate or clean up sites at the
installation.
(3) Participate in relative risk site evaluations. Technical
assistance may be provided to help RAB/TRC community members contribute
to the relative risk evaluation process for specific sites.
(4) Understand health implications. Technical assistance may be
provided to help RAB/TRC community members interpret the potential
health implications of cleanup levels or remedial technologies, or to
explain the health implications of site contaminants and exposure
scenarios.
(5) Training, where appropriate. Technical trainers on specific
restoration issues may be appropriate in circumstances where RAB/TRC
members need supplemental information on installation restoration
projects.
Sec. 203.11 Ineligible activities.
The following activities are ineligible for assistance under the
TAPP program:
(a) Litigation or underwriting legal actions, such as paying for
attorney fees or paying for a technical assistance provider to assist an
attorney in preparing legal action or preparing for and serving as an
expert witness at any legal proceeding regarding or affecting the site.
(b) Political activity and lobbying as defined by OMB Circular A-
122.
(c) Other activities inconsistent with the cost principles stated in
OMB Circular A-122, ``Cost Principles for Non-Profit Organizations.''
(d) Generation of new primary data, such as well drilling and
testing, including split sampling.
(e) Reopening final DoD decisions, such as the Records of Decision
(see limitations on judicial review of remedial actions under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) Section 113(h)) or conducting disputes with the Department of
Defense).
(f) Epidemiological or health studies, such as blood or urine
testing.
(g) Community outreach efforts, such as renting a facility and
conducting public meetings, or producing and distributing newsletters.
Sec. 203.12 Technical assistance for public participation provider
qualifications.
(a) A technical assistance provider must possess the following
credentials:
(1) Demonstrated knowledge of hazardous or toxic waste issues and/or
laws.
(2) Academic training in a relevant discipline (e.g., biochemistry,
toxicology, environmental sciences, engineering).
(3) Ability to translate technical information into terms
understandable to lay persons.
(b) A technical assistance provider should possess the following
credentials:
(1) Experience working on hazardous or toxic waste problems.
(2) Experience in making technical presentations.
(3) Demonstrated writing skills.
(4) Previous experience working with affected individuals or
community groups or other groups of individuals.
[[Page 393]]
(c) The technical assistance provider's qualifications will vary
according to the type of assistance to be provided. Community members of
the RAB/TRC may suggest additional provider qualifications as part of
the application for technical assistance. These additional
qualifications may be used by the Department of Defense to target the
most appropriate providers during the procurement process. Examples of
such criteria could include prior work in the area, knowledge of local
environmental conditions or laws, specific technical capabilities, or
other relevant expertise.
Sec. 203.13 Procurement.
Procurements will be conducted as purchase orders in accordance with
the FAR (48 CFR part 13). Under these procedures, procurements not
exceeding $100,000 are reserved exclusively for small businesses, and
will be conducted as competitive procurements. Procurements below a
value of $2,500 are considered ``micro-purchases.'' These procurements
do not require the solicitation of bids and may be conducted at the
discretion of the contracting officer.
Sec. 203.14 RAB/TRC reporting requirements.
The community point of contact of the RAB or TRC must submit a
report, to be provided to the installation and to DUSD(ES), to enable
the Department of Defense to meet DoD reporting requirements to
Congress. This report should include a description of the TAPP project,
a summary of services and products obtained, and a statement regarding
the overall satisfaction of the community member of the RAB or TRC with
the quality of service and/or products received.
Sec. 203.15 Method of payment.
The SAP set forth in FAR (48 CFR part 13) require purchase orders to
be conducted on a firm-fixed-price basis, unless otherwise authorized by
agency procedures. The Department of Defense anticipates all TAPP awards
to be firm-fixed-price procurements.
Sec. 203.16 Record retention and audits.
The recipient technical assistance providers shall keep and preserve
detailed records in connection with the contract reflecting
acquisitions, work progress, reports, expenditures and commitments, and
indicate the relationship to established costs and schedules.
Sec. 203.17 Technical assistance provider reporting requirements.
Each technical assistance provider shall submit progress reports,
financial status reports, materials prepared for the RAB/TRC, and a
final report to the DoD installation for the TAPP project as specified
by the specific purchase order agreement. The final report shall
document TAPP project activities over the entire period of support and
shall describe the achievements with respect to stated TAPP project
purposes and objectives.
Sec. 203.18 Conflict of interest and disclosure requirements.
The Department of Defense shall require each prospective assistance
provider on any contract to provide, with its bid or proposal:
(a) Information on its financial and business relationship with the
installation, RAB/TRC members, or any/all potentially responsible
parties (PRPs) at the site, and with their parent companies,
subsidiaries, affiliates, subcontractors, contractors, and current
clients or attorneys and agents. This disclosure requirement encompasses
past and anticipated financial and business relationships, including
services related to any proposed or pending litigation, with such
parties.
(b) Certification that, to the best of its knowledge and belief, it
has disclosed such information or no such information exists.
(c) A statement that it shall disclose immediately any such
information discovered after submission of its bid or after award. The
contracting officer shall evaluate such information and shall exclude
any prospective contractor if the contracting officer determines the
prospective contractor has a potential conflict of interest that is both
significant and cannot be avoided or otherwise resolved. If, after
award,
[[Page 394]]
the contracting officer determines that a conflict of interest exists
that is both significant and cannot be avoided or resolved, the contract
will be terminated for cause.
(d) Contractors and subcontractors may not be technical assistance
providers to community members of RABs/TRCs at an installation where
they are performing cleanup activities for the Federal or State
government or any other entity.
Sec. 203.19 Appeals process.
DoD Components will establish an appeals process to settle potential
disputes between the Department of Defense and the public regarding
certain decisions arising out of the TAPP process. The Department of
Defense recognizes that the RAB/TRC may disagree with the findings of
the installation commander that a proposed TAPP project is ineligible,
either because of the availability of alternate sources of assistance or
because the project does not meet the eligibility criteria established
in this part. It is in the best interests of the Department of Defense
and the community members of RABs and TRCs to anticipate and avoid
disputes and to work cooperatively to resolve potential differences of
opinion. However, in certain circumstances, the RAB/TRC community
members may feel that their needs were not adequately served by the
decisions of the Department of Defense. In this instance, the
hierarchical structure and chain-of-command within each DoD Component
will serve as the avenue for appeal. Appeals will be considered within
the chain-of-command, and, in general, will be resolved at the lowest
level possible. The highest level of appeal will be at the DoD Component
Deputy Assistant Secretary level with authority over the DERP and BRAC
environmental programs. Inherently governmental functions, such as the
procurement process governed by the FAR, are not subject to appeal.
[[Page 395]]
Sec. Appendix A to Part 203--Technical Assistance for Public
Participation Request Form
[GRAPHIC] [TIFF OMITTED] TR02FE98.006
[[Page 396]]
[GRAPHIC] [TIFF OMITTED] TR02FE98.007
PART 204_USER FEES--Table of Contents
Sec.
204.1 Purpose.
204.2 Applicability.
204.3 Policy and procedures.
204.4 Responsibilities.
204.5 Fees.
[[Page 397]]
204.6 Collections.
204.7 Legislative proposals.
204.8 Benefits for which no fee shall be assessed.
204.9 Schedule of fees and rates.
Authority: 31 U.S.C. 9701.
Source: 73 FR 23954, May 1, 2008, unless otherwise noted.
Sec. 204.1 Purpose.
This part implements the DoD program under Title 31, United States
Code, section 9701 and OMB Circular No. A-25, ``User Charges,'' to
establish appropriate fees for authorized services supplied by DoD
organizations.
Sec. 204.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Chairman of the Joint Chiefs of Staff, the
Combatant Commands, and the Defense Agencies (hereafter referred to
collectively as ``DoD Components''). None of the provisions in this part
should be construed as giving authority for the sale or lease of
property, or the rendering of special services. Actions to convey such
special benefits must be authorized by separate authority. This user fee
policy is applicable except when other statutes or directives
specifically direct other practices or procedures.
Sec. 204.3 Policy and procedures.
(a) General. It is DoD policy not to compete unfairly with available
commercial facilities in providing special services or in the sale or
lease of property to private parties and agencies outside the Federal
Government. However, when a service (or privilege) provides special
benefits to an identifiable recipient, beyond those that accrue to the
general public, a fee shall be imposed to recover the full cost to the
Federal Government for providing the special benefit (or the market
price) except as otherwise approved by the Under Secretary of Defense
(Comptroller) (USD(C)) and authorized by the Director of OMB. A special
benefit will be considered to accrue, and a user fee shall be imposed,
when a Government service:
(1) Enables the beneficiary to obtain more immediate or substantial
gain or values (which may or may not be measurable in monetary terms)
than those which accrue to the general public (e.g., receiving a patent,
insurance, or guarantee provision, or a license to carry on a specific
activity or business or various kinds of public land use); or
(2) Provides business stability or contributes to public confidence
in the business activity of the beneficiary (e.g., insuring deposits in
commercial banks), or
(3) Is performed at the request of or for the convenience of the
recipient, and is beyond the services regularly received by other
members of the same industry or group or by the general public (e.g.,
receiving a passport, visa, airman's certificate, or a Custom's
inspection after regular duty hours).
(b) Costing. (1) Except as provided in Sec. 204.3(c) and Sec.
204.8, a user fee shall be imposed to recover the full cost to the
Federal Government of providing the service, resource, or good when the
Government is acting in its capacity as sovereign.
(2) User fees shall be based on market prices (as defined in Sec.
204.5(a)(4)) when the Government is not acting in its capacity as
sovereign and is leasing or selling goods or resources, or is providing
a service (e.g., leasing space in federally owned buildings). Under
these business-type conditions, user fees need not be limited to the
recovery of full cost and may yield net revenues.
(3) User fees will be collected in advance of, or simultaneously
with, the rendering of services unless appropriations and authority are
provided in advance to allow reimbursable services.
(4) Whenever possible, fees should be set as rates rather than fixed
dollar amounts in order to adjust for changes in costs to the Government
or changes in market prices of the good, resource, or service provided.
(c) Exclusions. (1) The provisions of this part do not apply when
other statutes or DoD issuances require different practices or
procedures, such as for:
(i) Morale, welfare, and recreation services to military personnel
and civilian employees of the Department of Defense and other services
provided according to Sec. 204.8.
[[Page 398]]
(ii) Sale or disposal of surplus property under approved programs
(Chapter 5 of DoD 7000.14-R.) \1\
---------------------------------------------------------------------------
\1\ Copies of unclassified DoD issuances may be obtained at http://
www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(iii) Services furnished the general public relating to, or in
furtherance of, the Armed Forces recruiting program.
(iv) Services furnished to representatives of the public information
media in the interest of public understanding of the Armed Forces.
(v) Armed Forces participation in public events. Fees for such
participation are governed by the provisions of DoD Instruction 5410.19.
(vi) Records made available to the public, under the Freedom of
Information Act, pursuant to 32 CFR part 285. Fees for such record
searches and copies of records are governed by 32 CFR part 286.
(vii) Services furnished to non-Federal audio-visual media. Fees for
such services are governed by the provisions of DoD Instruction 5410.15.
(viii) Government-developed computer programs released to non-
Federal customers. Fees for software packages are governed by DoD
Instruction 7930.2.
(ix) Pricing of performance by DoD Working Capital Fund activities
shall be according to Volume 11B of DoD 7000.14-R.
(x) Foreign Military Sales of Defense articles and services shall be
according to Volume 15 of DoD 7000.14-R.
(xi) Records made available to Privacy Act requesters shall be
according to 32 CFR part 310.
(2) User fees may be waived by the Head of a DoD Component when:
(i) Furnishing of their service without fee is an appropriate
courtesy to a foreign government or international organization, or
comparable fees are set on a reciprocal basis with a foreign country.
(ii) The Director of the OMB has approved a request for an
exception. Such exceptions may be recommended when:
(A) The cost of collecting the fees would represent an unduly large
part of the receipts from the activity; or
(B) Any other conditions exists that, in the opinion of the Head of
the DoD Component or his designee, justifies the exception.
Sec. 204.4 Responsibilities.
(a) The USD(C) shall develop and monitor policies governing user
fees.
(b) The Heads of the DoD Components, or designees, shall:
(1) Identify each service or activity that may properly be the
subject of a user fee under this part.
(2) Determine the extent of the special benefit provided.
(3) Apply the principles specified in Sec. 204.5(a) in determining
full cost or market price.
(4) Review the user fees biennially, to include:
(i) Assurance that existing fees are adjusted to reflect
unanticipated changes in costs or market values; and
(ii) A review of all other programs to determine whether fees should
be assessed for Government services or the user of Government goods or
services. DoD Components should discuss the results of the biennial
review of user fees and any resultant proposals in the Chief Financial
Officers Annual Report required by the Chief Financial Officers Act of
1990.
(5) Initiate exception actions outlined in Sec. 204.3(c)(2). All
such actions shall be coordinated with the USD(C) prior to forwarding to
the OMB.
(i) Exceptions granted under Sec. 204.3(c)(2)(i) shall be renewed
every 4 years to ensure conditions warrant their continuation.
(ii) Exceptions granted under Sec. 204.3(c)(2)(ii) shall be
resubmitted for approval to the OMB every 4 years when conditions
warrant their continuation.
(6) Maintain readily accessible records of:
(i) The services or activities covered by this part.
(ii) The extent of special services provided.
(iii) The exceptions to the general policy of this part.
(iv) The information used to establish fees and the specific methods
used in their determination.
(v) The collections from each user fee imposed.
(7) Maintain adequate records of the information used to establish
fees and
[[Page 399]]
provide them upon request to OMB for the evaluation of the schedules and
provide data on user fees to OMB according to the requirements in
Circular No. A-11.
(8) Develop legislative proposals as outlined in Sec. 204.7 when
there are statutory prohibitions or limitations on the assessment of
user fees.
Sec. 204.5 Fees.
(a) General. (1) All fees shall be based on full cost to the U.S.
Government or market price, whichever applies.
(2) ``Full cost'' includes all direct and indirect costs associated
with providing a good, resource, or service. These costs are outlined in
Volume 11A, Chapter 1, paragraph 010203 of DoD 7000.14-R.
(3) Full cost shall be determined or estimated from the best
available records, and new cost accounting systems shall not be
established solely for this purpose.
(4) ``Market price'' means the price for a good, resource, or
service that is based on competition in open markets, and creates
neither a shortage nor a surplus of the good, resource, or service.
(i) When a substantial competitive demand exists for a good,
resource, or service, its market price will be determined using
commercial practices, for example:
(A) By competitive bidding; or
(B) By reference to prevailing prices in competitive markets for
goods, resources, or services that are the same or similar to those
provided by the Government (e.g., campsites or grazing lands in the
general vicinity of private ones) with adjustments as appropriate that
reflect demand, level of service, and quality of the good or service.
(ii) In the absence of substantial competitive demand, market price
will be determined by taking into account the prevailing prices for
goods, resources, or services that are the same or substantially similar
to those provided by the Government, and then adjusting the supply made
available and/or price of the good, resource, or service so that there
will be neither a shortage nor a surplus (e.g., campsites in remote
areas).
(5) Fees established in advance of performance shall be based on the
estimated cost of performance. Projected amounts shall be reviewed
biennially or whenever significant changes in cost or value occur.
(6) Management controls (see DoD Instruction 5010.40) must be
established to ensure fees are developed and adjusted, using current,
accurate, and complete data, to provide reimbursement conforming to
statutory requirements. These controls also must ensure compliance with
cash management and debt collection policies according to Volume 5 of
DoD 7000.14-R.
(b) Information resources. The fees for services provided by data
processing activities shall be determined by using the costs accumulated
pursuant to requirements in OMB Circular A-130, ``Management of Federal
Information Resources.''
(c) User fees for recurring services shall be established in
advance, when feasible. The benefit of charging user fees must outweigh
the cost of collecting the fees charged.
(d) Lease or sale of property. Fees for lease or sale of property
shall be based on the following:
(1) Leases of military equipment or real estate. (i) In cases
involving the lease or rental of military equipment, when there is no
commercial counterpart, the fee will be based on the procedures provided
in Volume 11A, Chapter 1, paragraph 010203.I of DoD 7000.14-R. The
current interest rate in OMB Circular A-94 will be used in the
computation of interest on investment in assets. In determining the
value, consideration may be given to the responsibility of the lessee to
assume the risk of loss or damage to the property and to hold the
government harmless against claims or liabilities by the lessee or third
parties.
(ii) In cases involving real estate outgrants, the consideration for
a lease shall be determined by appraisal of fair market rental value
according to 10 U.S.C. 2667.
(2) Sale of property. When there is legal authority to sell property
to the public, the selling price of the property and related accessorial
and administrative costs shall be computed according
[[Page 400]]
to Volume 11A, Chapter 1 of DoD 7000.14-R.
Sec. 204.6 Collections.
(a) Collections of fees will be made in advance or simultaneously
with the rendering of service unless appropriations and authority allow
otherwise. The policies in this part, Volume 5 of DoD 7000.14-R, and DoD
Instruction 5010.40, shall be used in accounting, controlling, and
managing cash and debt collections.
(b) Unless a statute provides otherwise, user fee collections will
be credited to the general fund of the Treasury as miscellaneous
receipts, as required by 31 U.S.C. 3302.
Sec. 204.7 Legislative proposals.
(a) Legislative proposals that allow the DoD Component to retain
collections may be appropriate when a fee is levied in order to finance
a service intended to be provided on a substantially self-sustaining
basis and thus is dependent upon adequate collections.
(1) The authority to use fees credited to an appropriation is
generally subject to limits set in annual appropriations language.
However, it may be appropriate to request exemption from annual
appropriations control, if a provision of the service is dependent on
demand that is irregular or unpredictable (e.g., a fee to reimburse an
agency for the cost of overtime pay of inspectors for services performed
after regular duty hours).
(2) Legislative proposals that permit fees to be credited to
accounts shall be consistent with the full-cost recovery guidelines
contained in this part. Any fees in excess of full cost recovery and any
increase in fees to recover the portion of retirement costs which
recoups all (funded or unfunded) accrual costs not covered by employee
contributions are to be credited to the general fund of the Treasury as
miscellaneous receipts.
(b) Where the retention of the collection is appropriate, the DoD
Components(s) concerned may submit legislative proposals under
applicable legislative procedures included in OMB Circular A-19. These
procedures may be obtained from the Office of Legislative Counsel,
General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600.
Proposals to remove user fee restrictions or retain collections shall:
(1) Define in general terms the services for which fees will be
assessed and the pricing mechanism that will be used.
(2) Specify whether fees will be collected in advance of, or
simultaneously with, the provision of service unless appropriations and
authority are provided in advance to allow reimbursable services.
(3) Specify where collections will be credited. Legislative
proposals should not normally specify precise fees. The user fee
schedule should be set by regulation to allow for the administrative
updating of fees to reflect changing costs and market values.
Sec. 204.8 Benefits for which no fee shall be assessed.
(a) Documents and information requested by members of the Armed
Forces is required by such personnel in their capacity as Service
members.
(b) Documents and information requested by members of the Armed
Forces who are in a casualty status, or requested by their next of kin
or legal representative.
(c) The provisions of the address of record of a member or former
member of the Armed Forces when the address is readily available through
a directory (locator) service, and when the address is requested by a
member of the Armed Forces or by a relative or a legal representative of
a member of the Armed Forces, or when the address of record is requested
by any source for the purpose of paying monies or forwarding property to
a member or former member of the Armed Forces.
(d) Services requested by, or on behalf of, a member or former
member of the Armed Forces and civilian personnel of the Department of
Defense (where applicable) or, if deceased, his or her next of kin or
legal representative that pertain to the provision of:
(1) Information required to obtain financial benefits regardless of
the terms of separation from the Service.
(2) Document showing membership and military record in the Armed
Forces if discharge or release was under honorable conditions, except as
[[Page 401]]
shown in paragraphs (d)(1) and (d)(4) of this section.
(3) Information relating to a decoration or award or required for
memoralization purposes.
(4) Information relating to the review or change in type of
discharge or correction of records.
(5) Personal documents, such as birth certificates, when such
documents are required to be furnished by the member.
(6) Services furnished free according to statutes or Executive
Orders.
(7) Information from or copies of medical and dental records or x-
ray films of patients or former patients of military medical or dental
facilities, when such information is required for further medical or
dental care, and requests for such data are submitted by an accredited
medical facility, physician, or dentist, or requested by the patient,
his or her next of kin, or legal representative. Other requests subject
to the Privacy Act shall be according to 32 CFR part 310 (see Sec.
204.3(c)(1)(xi) of this part).
(8) Services requested by, and furnished to, a member of Congress
for official use.
(9) Services requested by state, territorial, county, or municipal
government, or an agency thereof, that is performing a function related
to or furthering a DoD objective.
(10) Services requested by a court, when such services will serve as
a substitute for personal court appearance of a military or civilian
employee of the Department of Defense.
(11) Services requested by a nonprofit organization that is
performing a function related to or furthering an objective of the
Federal Government or is in the interest of public health and welfare,
including education.
(12) Services requested by donors in connection with the conveyance
or transfer of a gift to the Department of Defense.
(13) Occasional and incidental services (including requests from
residents of foreign countries), not requested often, when it is
determined administratively that a fee would be inappropriate for the
occasional and incidental services rendered.
(14) Administrative services offered by reference or reading rooms
to inspect public records, excluding copies of records or documents
furnished.
(15) Services rendered in response to requests for classification
review of DoD classified records, submitted under Executive Order 12065,
``National Security Information,'' and implemented by DoD 5200.1-R. Such
services consist of the work performed in conducting the classification
review or in granting and completing an appeal from a denial of
declassification following such review.
(16) Services of a humanitarian nature performed in such emergency
situations as life-saving transportation for non-Armed Forces patients,
search and rescue operations, and airlift of personnel and supplies to a
disaster site. This does not mean that inter- and intra-governmental
agreements to recover all or part of costs shall not be negotiated.
Rather, it means the recipients or beneficiary will not be assessed a
``user fee''.
Sec. 204.9 Schedule of fees and rates.
(a) Schedule of fees and rates. (1) This schedule applies to
authorized services related to copying, certifying, and searching
records rendered to the public by DoD Components, except when those
services are excluded or excepted from charges under Sec. 204.3(c) or
the ``Benefits for Which No Fee Shall Be Assessed'' included in Volume
11A, Chapter 4, Appendix 1 of DoD 7000.14-R. All other fees will be
based on full cost or market price.
Fee Schedule
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
(i) Copies
(Standard size paper up to 8\1/2\ x 14). $0.13 per page.
(ii) Search and Review
(A) Managerial.......................... $13.15 per \1/4\ hour;
$52.60 per hour.
(B) Professional........................ $9.05 per \1/4\ hour; $36.20
per hour.
(C) Clerical............................ $5.20 per \1/4\ hour; $20.80
per hour.
(iii) Other
(A) Microfiche.......................... $0.08 per page.
(B) Computer and magnetic tapes......... $25.00 each.
(C) Computer diskettes.................. $1.25 each.
(D) Other services (computer time, Actual Cost.
special mailing).
------------------------------------------------------------------------
[[Page 402]]
(2) Fees will not be charged if the total amount to process your
request is $30.00 or less.
(b) Criteria for estimating cost of computerized records:
(1) Costs for processing a data request will be calculated using the
full cost method as referenced in Sec. 204.5.
(2) Itemized listing of operations required to process the job will
be maintained (i.e., time for central processing unit, input/output
remote terminal, storage, plotters, printing, tape/disk mounting, etc.)
with associated costs.
(3) Mailing costs for services (DHL, Express Mail, etc.) when
request specifically specifies a means more expensive than first class
mail.
PART 207 [RESERVED]
PART 208_NATIONAL SECURITY EDUCATION PROGRAM (NSEP) AND NSEP SERVICE
AGREEMENT--Table of Contents
Sec.
208.1 Purpose.
208.2 Applicability.
208.3 Definitions.
208.4 Policy.
208.5 Responsibilities.
208.6 Procedures.
Authority: 50 U.S.C. 1901-1912, 50 U.S.C. 1903, 50 U.S.C. chapter
37.
Source: 81 FR 87450, Dec. 5, 2016, unless otherwise noted.
Sec. 208.1 208.1 Purpose.
This part:
(a) Implements the responsibilities of the Secretary of Defense for
administering NSEP.
(b) Updates DoD policy, assigns responsibilities, and prescribes
procedures and requirements for administering and executing the NSEP
service agreement in accordance with 50 U.S.C. chapter 37.
(c) Modifies requirements related to the NSEP service agreement.
(d) Assigns oversight of NSEP to the Defense Language and National
Security Education Office.
Sec. 208.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the Office of the Inspector General of
the Department of Defense, the Defense Agencies, the DoD Field
Activities, and all other organizational entities in the DoD (referred
to collectively in this part as the ``DoD Components'').
(b) The administrative agent, and all recipients of awards by NSEP.
Sec. 208.3 Definitions.
These terms and their definitions are for the purpose of this part.
Administrative agent. Organization that will administer, direct, and
manage resources for NSEP.
Boren Fellowship. A competitive award granted for graduate study
under NSEP.
Boren Scholarship. A competitive award granted for undergraduate
study abroad under NSEP.
Critical area. Determined by the Secretary of Defense, in
consultation with the members of the National Security Education Board,
in accordance with 50 U.S.C. chapter 37 and 50 U.S.C. 1903.
Critical foreign language. Determined by the Secretary of Defense,
in consultation with the members of the National Security Education
Board in accordance with 50 U.S.C. chapter 37.
Deferral of the NSEP service agreement. Official NSEP documentation
signed by the Director, NSEP, or his or her designee, by which an NSEP
award recipient pursuing approved, qualified further education is
allowed to postpone meeting the service deadline.
(1) A deferral reschedules the date by which an NSEP award recipient
must begin to fulfill service.
(2) Qualified further education includes, but is not limited to, no
less than half-time enrollment in any degree-granting, accredited
institution of higher education worldwide or participation in an
academic fellowship program (e.g., Fulbright Fellowship, Thomas R.
Pickering Foreign Affairs Fellowship).
(3) A deferral is calculated by first calculating the length of
enrollment in the degree program from start date to anticipated
graduation date, and then adding the length of enrollment in the degree
program to the service deadline.
[[Page 403]]
(4) Approvals of deferrals will be considered on a case-by-case
basis.
Extension of the NSEP service agreement. Official NSEP documentation
signed by the ASD(R), through the DASD(FE&T), by which an NSEP award
recipient who has completed award requirements, reached the service
deadline, and is actively seeking to fulfill the NSEP service agreement
in a well-documented manner is allowed to extend the service deadline.
An extension reschedules the date by which an NSEP award recipient must
complete the service required in the NSEP service agreement.
Intelligence Community. The U.S. Intelligence Community is a
coalition of 17 agencies and organizations within the executive branch
that work both independently and collaboratively to gather the
intelligence necessary to conduct foreign relations and national
security activities.
Language proficiency. The U.S. Government relies on the Interagency
Language Roundtable (ILR) scale to determine language proficiency.
According to the ILR scale:
(1) 0 is No Proficiency.
(2) 0+ is Memorized Proficiency.
(3) 1 is Elementary Proficiency.
(4) 1+ is Elementary Proficiency, Plus.
(5) 2 is Limited Working Proficiency.
(6) 2+ is Limited Working Proficiency, Plus.
(7) 3 is General Professional Proficiency.
(8) 3+ is General Professional Proficiency, Plus.
(9) 4 is Advanced Professional Proficiency.
(10) 4+ is Advanced Professional Proficiency, Plus.
(11) 5 is Functional Native Proficiency.
NSEP Service Approval Committee. Committee of key NSEP staff members
who review the merits of all requests for service credit, deferrals,
extensions, or waivers of the NSEP service agreement, including
adjudication of all cases involving award recipients who decline job
offers, in order to provide recommendations to the Director, NSEP.
Other federal agencies. Includes any federal government agency,
department, bureau, office or any other federal government organization
of any nature other than the Department of Defense or any component,
agency, department, field activity or any other subcomponent of any kind
within or subordinate to the Department of Defense.
Program end date. Official end of an NSEP award recipient's program,
as set forth within the individual's NSEP service agreement.
Request of service credit in fulfillment of the NSEP service
agreement. Written request made through submission of a DD Form 2753 to
the NSEP office, documenting how employment an NSEP award recipient held
or holds complies with fulfillment of the NSEP service agreement.
Reserve Officer Training Corps (ROTC). College program offered at
colleges and universities across the United States that prepares young
adults to become officers in the U.S. Military. In exchange for a paid
college education and a guaranteed post-college career, cadets commit to
serve in the Military after graduation. Each Service branch has its own
take on ROTC.
Satisfactory academic progress. Maintenance of academic standards at
both home and host institution(s) for every NSEP award recipient for the
duration of the study program.
Service deadline. Date by which NSEP award recipient must begin to
fulfill the NSEP service agreement.
Waiver of the NSEP service agreement. Official NSEP documentation,
signed by the ASD(R), through the DASD(FE&T), by which an NSEP award
recipient is relieved of responsibilities associated with the NSEP
service agreement.
Work in fulfillment of the NSEP service agreement. Upon completion
of the NSEP award recipient's study program, such individual must seek
employment in the DoD, Department of Homeland Security (DHS), Department
of State (DOS), or the Intelligence Community, or if no suitable
position is available, anywhere in the U.S. Government in a position
with national security responsibilities. If such individual is
unsuccessful in finding a federal position after making a good faith
effort to do
[[Page 404]]
so, award recipient agrees to seek employment in the field of education
in a position related to the study supported by such scholarship or
fellowship. The award recipient further agrees to fulfill the service
requirement, as described in this rule.
Sec. 208.4 Policy.
It is DoD policy that:
(a) NSEP assist in making available to DoD and other federal
entities, as applicable, personnel possessing proficiency in languages
and foreign regional expertise critical to national security by
providing scholarships and fellowships pursuant to 50 U.S.C. 1902(a).
These scholarships and fellowships will be awarded to:
(1) Students who are U.S. citizens, to pursue qualifying
undergraduate and graduate study in domestic and foreign education
systems to assist in meeting national security needs for professionals
with in-depth knowledge of world languages and cultures, and who enter
into an NSEP service agreement as required by 50 U.S.C. 1902(b); or
(2) Students who are U.S. citizens who are native speakers of a
foreign language identified as critical to the national security of the
United States, but who are not proficient at a professional level in the
English language with respect to reading, writing, and other skills, to
enable such students to pursue English language studies at institutions
of higher education. Recipients must agree to enter into an NSEP service
agreement as required by 50 U.S.C. 1902(b).
(b) Grants will be awarded to institutions of higher education for
programs in critical areas pursuant to 50 U.S.C. 1902(a) and 1902(f) to
implement a national system of programs to produce advanced language
expertise critical to the national security of the United States.
(c) An NSEP award recipient must enter into an NSEP service
agreement before receipt of an award as required by 50 U.S.C. chapter
37. The award recipient must agree to maintain satisfactory academic
progress and work in fulfillment of the NSEP service agreement until all
service requirements are satisfied.
(d) All NSEP award recipients who are government employees or
members of the uniformed services at the time of award must confirm that
they have resigned from such employment or service before receiving
support for their NSEP-funded overseas study. These stipulations apply
to all individuals, including employees of a department, agency, or
entity of the U.S. Government and members of the uniformed services,
including members of a Reserve Component of the uniformed services. ROTC
participants who are also members of a Reserve Component must be in an
inactive, non-drilling status during the course of their NSEP-funded
overseas study.
(e) Neither DoD nor the U.S. Government is obligated to provide, or
offer work or employment to, award recipients as a result of
participation in the program. All federal agencies are encouraged to
assist in placing NSEP award recipients upon successful completion of
the program.
Sec. 208.5 Responsibilities.
(a) Under the authority, direction, and control of the Under
Secretary of Defense for Personnel and Readiness (USD(P&R)), the ASD(R):
(1) Develops programs, processes, and policies to support NSEP award
recipients in fulfilling their NSEP service agreement through
internships or employment in federal service pursuant to 50 U.S.C.
chapter 37.
(2) Determines, pursuant to 50 U.S.C. 1902(a), after consultation
with the National Security Education Board, which countries, languages,
and disciplines are critical and in which there are deficiencies of
knowledgeable personnel within federal entities.
(b) Under the authority, direction, and control of the USD(P&R)
through the ASD(R), and in coordination with the Director, Department of
Defense Human Resources Activity (DoDHRA), the DASD(FE&T), or his or her
designee:
(1) Makes available competitive scholarship, fellowship, and English
for Heritage Language Speakers (EHLS) awards to U.S. citizens who wish
to engage in study for the purposes of national security in accordance
with 50 U.S.C. chapter 37.
[[Page 405]]
(2) Manages, oversees, and monitors compliance of NSEP service
agreements on behalf of the Secretary of Defense.
(3) Advises NSEP award recipients who are seeking federal or
national security positions on how to fulfill their NSEP service
agreement in national security positions.
(4) Maintains documentation of successful completion of federal
service or initiates debt collection procedures for those NSEP
recipients who fail to comply with the NSEP service agreement.
(5) Works with agencies or offices in the U.S. Government to
identify potential employment opportunities for NSEP award recipients
and make employment opportunities and information readily available to
all award recipients.
(6) Approves or disapproves all DD Form 2573 written requests for
service credit, deferrals, extensions, or waivers of the NSEP service
agreement, including adjudication of all cases involving award
recipients who decline job offers.
(c) Under the authority, direction, and control of the USD(P&R), and
in coordination with the DASD(FE&T), the Director, DoDHRA:
(1) Provides administrative and operational support to NSEP.
(2) Provides fiscal management and oversight to ensure all funds
provided for NSEP are separately and visibly accounted for in the DoD
budget.
Sec. 208.6 Procedures.
(a) NSEP award recipients. The award recipient of any scholarship or
fellowship award through NSEP will:
(1) Maintain satisfactory academic progress in the course of study
for which assistance is provided, according to the regularly prescribed
standards and practices of the institution in which the award recipient
is matriculating.
(2) As a condition of receiving an award, sign an NSEP service
agreement as required by 50 U.S.C. chapter 37, which among other
requirements, must acknowledge an understanding and agreement by the
award recipient that failure to maintain satisfactory academic progress
constitutes grounds upon which the award may be terminated and trigger
the mandatory requirement to return to the U.S. Treasury the
scholarship, fellowship, or EHLS funds provided to the award recipient.
(3) Notify the DASD(FE&T) within ten business days if advised of
failure to maintain academic progress by the institution of
matriculation.
(4) Notify the DASD(FE&T) in a timely manner and in advance of the
service deadline should any request for deferral, extension, or waiver
become necessary.
(i) Deferrals. NSEP award recipients actively seeking to fulfill the
NSEP service agreement in a well-documented manner may request approval
of a one-year extension of their service deadline. Approvals of
deferrals for pursuit of education will be considered on a case-by-case
basis. Renewal of a deferral may be granted if adequately justified.
(ii) Extensions. A thorough outline describing all further plans to
complete the NSEP service agreement must accompany all extension
requests. No more than two extensions may be granted to an NSEP award
recipient.
(iii) Waivers. (A) In extraordinary circumstances, an NSEP award
recipient may be relieved of responsibilities associated with the NSEP
service agreement. As a result of receiving a waiver, the award
recipient will no longer receive job search assistance from NSEP; is no
longer a beneficiary of the special hiring advantages available to award
recipients who have a service requirement; and will not be eligible to
receive NSEP letters of certification, or endorsements or
recommendations. Upon request, the NSEP office will continue to certify
that the award recipient received an NSEP scholarship or fellowship.
(B) The DASD(FE&T), will consider requests for extensions and
waivers of the NSEP service agreement only under special circumstances
as defined in paragraph (b) of this section. The request must set forth
the basis, situation, and causes which support the requested action. The
award recipient must submit requests electronically on www.nsepnet.org
or to [email protected]. Final approval of work in fulfillment of the NSEP
service agreement, deferrals, extensions, and waivers rest with, and
[[Page 406]]
are at the discretion of, the DASD(FE&T).
(5) Immediately upon successful completion of the award program and
either completion of the degree for which the award recipient is
matriculated or withdrawal from such degree program, begin the federal
job search. Award recipients should concurrently seek positions within
DoD, any element of the Intelligence Community, the DHS, or DOS.
(6) Work to satisfy all service requirements in accordance with
applicable NSEP service agreements until all NSEP service requirements
are satisfied. Work in fulfillment of the NSEP service agreement must be
wholly completed within five years of the award recipient's first date
of service unless an approved deferral or extension has been granted.
(7) Work for the total period of time specified in the NSEP service
agreement either consecutively in one organization, or through follow-on
employment in two or more organizations.
(8) Repay the U.S. Treasury the award funds provided to the award
recipient if the requirements of the NSEP service agreement are not met.
(9) Submit DD Form 2753 to NSEP no later than one month after
termination of the period of study funded by NSEP and annual reports
thereafter until the NSEP service requirement is satisfied. The DD Form
2753 will include:
(i) Any requests for deferrals, extensions, or waivers with adequate
support for such requests.
(ii) The award recipient's current status (e.g., not yet graduated
from, or terminated enrollment in, the degree program pursued while
receiving NSEP support; engaged in work in fulfillment of the
requirement.)
(iii) Updated contact information.
(10) Notify the ASD(R), through the DASD(FE&T), within ten business
days of any changes to the award recipient's mailing address.
(b) Procedures and requirements applicable to NSEP aard recipients--
(1) NSEP service agreement. Award recipients of any scholarship,
fellowship, or EHLS award through this program must comply with the
terms of the NSEP service agreement they signed. NSEP awards entered
into before the date of this part will be governed by the laws,
regulations, and policies in effect at the time that the award was made.
The NSEP service agreement for recipients awarded as of the date of this
part will:
(i) In accordance with 50 U.S.C. 1902(b) outlines requirements for
NSEP award recipients to fulfill their federal service requirement
through work in positions that contribute to the national security of
the United States. An emphasis is placed on work within one of four
organizations: DoD, any element of the Intelligence Community, DHS, or
DOS. On a case-by-case basis, NSEP may consider employment with a
federal contractor of one of these four priority organizations as
meeting the service requirement should the award recipient provide
adequate documentary evidence that the salary for the position is funded
by the U.S. Government.
(ii) Stipulate that absent the availability of a suitable position
in the four priority organizations or a contractor thereof, award
recipients may satisfy the service requirement by serving in any federal
agency or office in a position with national security responsibilities.
It will also stipulate that absent the availability of a suitable
position in DoD, any element of the Intelligence Community, DHS, DOS, a
contractor thereof, or any federal agency with national security
responsibilities, award recipients may satisfy the service requirement
by working in the field of education in a discipline related to the
study supported by the program if the recipient satisfactorily
demonstrates to the Secretary of Defense through the Director, NSEP,
that no position is available in the departments, agencies, and offices
covered by paragraph (b)(1)(i) of this section.
(2) Implementation. The NSEP service agreement will be implemented
as follows:
(i) Prior to receiving assistance, the award recipient must sign an
NSEP service agreement. The award recipient will submit to the NSEP
Administrative Agent, in advance of program of study start date, any
proposed changes to the approved award program (i.e., course and
schedule changes, withdrawals, course or program
[[Page 407]]
incompletions, unanticipated or increased costs).
(ii) The minimum length of service requirement for undergraduate
scholarship, graduate fellowship, and EHLS award recipients is one year.
The duration of the service requirement for graduate fellowship award
recipients is equal to the duration of assistance provided by NSEP.
(iii) In accordance with 50 U.S.C. 1902(b), undergraduate
scholarship students must begin fulfilling the NSEP service agreement
within three years of completion or termination of their undergraduate
degree program.
(iv) In accordance with 50 U.S.C. 1902(b), graduate fellowship
students must begin fulfilling the NSEP service agreement within two
years of completion or termination of their graduate degree program.
(v) In accordance with 50 U.S.C. 1902(b), EHLS award recipients must
begin fulfilling the service requirement within three years of
completion of their program.
(vi) The award recipient must accept a reasonable offer of
employment, as defined by the Director, NSEP, or his or her designee, in
accordance with the NSEP service agreement, at a salary deemed by the
hiring organization as commensurate with the award recipient's education
level, and consistent with the terms and conditions of the NSEP service
agreement.
(vii) The award recipient will annually submit a DD Form 2753 to
NSEP until all NSEP service agreement requirements are satisfied. The DD
Form 2753 must be received and reviewed by the NSEP Service Approval
Committee. The receipt of a completed DD Form 2753 will be acknowledged
through official correspondence from NSEP. Award recipients who do not
submit the DD Form 2753 as required will be notified by NSEP of the
intent to pursue collection action.
(viii) If the award recipient fails to maintain satisfactory
academic progress for any term in which assistance is provided,
probationary measures of the host institution will apply to the award
recipient. Failure to meet the institution's requirements to resume
satisfactory academic progress within the prescribed guidelines of the
institution will result in the termination of assistance to the award
recipient.
(ix) Extenuating circumstances, such as illness of the award
recipient or a close relative, death of a close relative, or an
interruption of study caused by the host institution, may be considered
acceptable reasons for non-satisfactory academic progress. The award
recipient must notify the NSEP Administrative Agent of any extenuating
circumstances within 10 business days of occurrence. The NSEP
Administrative Agent will review these requests to determine what course
of action is appropriate and make a recommendation to NSEP for final
determination. The DASD(FE&T) will upon receipt of the NSEP
Administrative Agent recommendation, determine by what conditions to
terminate or reinstate the award to the award recipient.
(x) NSEP award recipients may apply to the DASD(FE&T) for a deferral
of the NSEP service agreement requirement if pursuing qualified further
education.
(xi) NSEP award recipients may apply to the DASD(FE&T), to receive
an extension of the NSEP service agreement requirement if actively
seeking to fulfill the NSEP service agreement in a well-documented
manner.
(xii) In extraordinary circumstances an NSEP award recipient may
request a waiver to be relieved of responsibilities associated with the
NSEP service agreement. Conditions for requesting a waiver to the NSEP
service agreement may include:
(A) Situations in which compliance is either impossible or would
involve extreme hardship to the award recipient.
(B) Interruptions in service due to temporary physical or medical
disability or other causes beyond the award recipient's control.
(C) Unreasonable delays in the hiring process not caused by the
award recipient, including delays in obtaining a security clearance if
required for employment.
(D) Hiring freezes that adversely affect award recipients who are
seeking positions with the U.S. Government.
[[Page 408]]
(E) Permanent physical or medical disability that prevent the award
recipient from fulfilling the obligation.
(F) Inability to complete the NSEP service agreement due to
terminations or interruptions of work beyond the award recipient's
control.
(G) Death of the award recipient.
(xiii) In cases where assistance to the award recipient is
terminated, the amount owed to the U.S. Government is equal to the
support received from NSEP. Repayment to the U.S. Treasury must be made
within a period not to exceed six months from expiration of the service
deadline. Noncompliance with repayment requirements will result in the
initiation of standard U.S. Government collection procedures to obtain
payment for overdue indebtedness, unless a waiver is specifically
granted by the DASD(FE&T). Further job search assistance to an award
recipient will be denied if any outstanding debt remains unpaid as a
result of an award termination.
(A) Repayment to the U.S. Treasury for the amount of assistance
provided becomes due, either in whole or in part, if the award recipient
fails to fulfill the NSEP service agreement. Award recipients who do not
submit the SAR as required will be notified by NSEP of the intent to
pursue collection action. Noncompliance with repayment requirements will
result in the initiation of standard U.S. Government collection
procedures to obtain payment for overdue indebtedness, unless a waiver
is specifically granted by the DASD(FE&T).
(B) Repayment recovery procedures will include one or a combination
of the following:
(1) Voluntary repayment schedule arranged between the award
recipient and the administrative agent.
(2) Deduction from accrued pay, compensation, amount of retirement
credit, or any other amount due the employee from the U.S. Government.
(3) Such other methods as are provided by law for recovery of
amounts owed to the U.S. Government.
PART 209 [RESERVED]
PART 210_ENFORCEMENT OF STATE TRAFFIC LAWS ON DOD INSTALLATIONS--
Table of Contents
Sec.
210.1 Purpose.
210.2 Applicability and scope.
210.3 Policy.
210.4 Responsibilities.
Authority: 63 Stat. 377, as amended, 18 U.S.C. 13; 40 U.S.C. 318a
through d., 40 U.S.C. 612.
Source: 46 FR 58306, Dec. 1, 1981, unless otherwise noted.
Sec. 210.1 Purpose.
This part establishes policies pursuant to the requirements of DoD
Directive 6055.4, \1\ ``Department of Defense Traffic Safety Program,''
November 7, 1978, and to authority delegated to the Secretary of Defense
under Enclosure 1 for the enforcement, on DoD military installations, of
those state vehicular and pedestrian traffic laws that cannot be
assimilated under U.S.C., Title 18, section 13.
---------------------------------------------------------------------------
\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
[46 FR 58306, Dec. 1, 1981, as amended at 56 FR 13285, Apr. 1, 1991]
Sec. 210.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, the Unified and Specified Commands, and the Defense
Agencies.
(b) The provisions encompass all persons who operate or control a
motor vehicle or otherwise use the streets of a military installation
over which the United States exercises exclusive or concurrent
legislative jurisdiction.
(c) The provisions govern only vehicular and traffic offenses or
infractions that cannot be assimilated under 18 U.S.C. 13, thereby
precluding application of state laws to traffic offenses committed on
military installations.
Sec. 210.3 Policy.
(a) It is the policy of the Department of Defense that an effective,
comprehensive traffic safety program be
[[Page 409]]
established and maintained at all military installations as prescribed
in DoD Directive 6055.4. \1\
(b) State vehicular and pedestrian traffic laws that are now or may
hereafter be in effect shall be expressly adopted and made applicable on
military installations to the extent provided by this part. All persons
on a military installation shall comply with the vehicular and
pedestrian traffic laws of the state in which the installation is
located.
(c) Pursuant to the authority established in the Enclosure 1 to DoD
Directive 5525.4 \2\, installation commanders of all DoD installations
in the United States and over which the United States has exclusive or
concurrent legislative jurisdiction are delegated the authority to
establish additional vehicular and pedestrian traffic rules and
regulations for their installations. All persons on a military
installation shall comply with locally established vehicular and
pedestrian traffic rules and regulations.
---------------------------------------------------------------------------
\2\ See footnote 1 to Sec. 210.1.
---------------------------------------------------------------------------
(d) A person found guilty of violating, on a military installation,
any state vehicular or pedestrian traffic law or local installation
vehicular or pedestrian traffic rule or regulation made applicable to
the installation under the provisions of this part is subject to a fine
of not more than $50 or imprisonment for not more than 30 days, or both,
for each violation (40 U.S.C. 318c).
(e) A copy of this part shall be posted in an appropriate place on
the DoD installation concerned.
[46 FR 58306, Dec. 1, 1981, as amended at 56 FR 13285, Apr. 1, 1991; 56
FR 42939, Aug. 30, 1991]
Sec. 210.4 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall modify this part as appropriate.
(b) Secretaries of the Military Departments shall comply with this
part.
PART 211_MISSION COMPATIBILITY EVALUATION PROCESS--Table of Contents
Subpart A_General
Sec.
211.1 Purpose.
211.2 Applicability.
211.3 Definitions.
Subpart B_Policy
211.4 Policy.
211.5 Responsibilities.
Subpart C_Project Evaluation Procedures
211.6 Initiating a formal DoD review of a proposed project.
211.7 Initiating an informal DoD review of a project.
211.8 Inquiries received by DoD Components.
211.9 Mitigation options.
211.10 Reporting determinations to Congress.
Subpart D_Communications and Outreach
211.11 Communications with the Clearinghouse.
211.12 Public outreach.
Authority: Public Law 111-383, Section 358, as amended by Public Law
112-81, Section 331.
Source: 78 FR 73088, Dec. 5, 2013, unless otherwise noted.
Subpart A_General
Sec. 211.1 Purpose.
This part prescribes procedures pursuant to section 358 of the Ike
Skelton National Defense Authorization Act for Fiscal Year 2011 to
provide:
(a) A formal review of projects for which applications are filed
with the Secretary of Transportation under 49 U.S.C. 44718, to determine
if they pose an unacceptable risk to the national security of the United
States.
(b) An informal review of a renewable energy development or other
energy project in advance of the filing of an application with the
Secretary of Transportation under 49 U.S.C. 44718.
Sec. 211.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the
[[Page 410]]
Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant
Commands, the Office of the Inspector General of the Department of
Defense, the Defense Agencies, the DoD Field Activities, and all other
organizational entities in the Department of Defense (hereafter referred
to collectively as the ``DoD Components'').
(b) Persons filing applications with the Secretary of Transportation
for proposed projects pursuant to 49 U.S.C. 44718, when such
applications are received by the Department of Defense from the
Secretary of Transportation.
(c) A State, Indian tribal, or local official, a landowner, or a
developer of a renewable energy development or other energy project
seeking a review of such project by DoD.
(d) Members of the general public from whom comments are received on
notices of actions being taken by the Department of Defense under this
part.
(e) The United States.
Sec. 211.3 Definitions.
Adverse impact on military operations and readiness. Any adverse
impact upon military operations and readiness, including flight
operations research, development, testing, and evaluation and training,
that is demonstrable and is likely to impair or degrade the ability of
the armed forces to perform their warfighting missions.
Applicant. An entity filing an application with the Secretary of
Transportation pursuant to 49 U.S.C. 44718, and whose proper application
has been provided by the Secretary of Transportation to the
Clearinghouse.
Armed forces. This term has the same meaning as provided in 10
U.S.C. 101(a)(4) but does not include the Coast Guard.
Clearinghouse. The DoD Siting Clearinghouse, established under the
Deputy Under Secretary of Defense (Installations & Environment).
Congressional defense committees. The--
(1) Committee on Armed Services and the Committee on Appropriations
of the Senate; and
(2) Committee on Armed Services and the Committee on Appropriations
of the House of Representatives.
Days. All days are calendar days but do not include Federal
holidays.
Landowner. A person, partnership, corporation, or other legal
entity, that owns a fee interest in real property on which a proposed
project is planned to be located.
Military readiness. Includes any training or operation that could be
related to combat readiness, including testing and evaluation
activities.
Mitigation. Actions taken by either or both the DoD or the applicant
to ensure that a project does not create an unacceptable risk to the
national security of the United States.
Proposed project. A proposed project is the project as described in
the application submitted to the Secretary of Transportation pursuant to
49 U.S.C. 44718 and transmitted by the Secretary of Transportation to
the Clearinghouse.
Requester. A developer of a renewable energy development or other
energy project, a State, Indian tribal, or local official, or a
landowner seeking an informal review by the DoD of a project.
Section 358. Section 358 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011, Public Law 111-383.
Unacceptable risk to the national security of the United States. The
construction, alteration, establishment, or expansion, or the proposed
construction, alteration, establishment, or expansion, of a structure or
sanitary landfill that would:
(1) Endanger safety in air commerce, related to the activities of
the DoD.
(2) Interfere with the efficient use and preservation of the
navigable airspace and of airport traffic capacity at public-use
airports, related to the activities of the DoD.
(3) Significantly impair or degrade the capability of the DoD to
conduct training, research, development, testing, and evaluation, and
operations or to maintain military readiness.
United States. The several States, the District of Columbia, the
Commonwealths of Puerto Rico and the Northern Mariana Islands, American
Samoa, Guam, Midway and Wake Islands, the U.S. Virgin Islands, any other
territory or possession of the United States, and
[[Page 411]]
associated navigable waters, contiguous zones, and territorial seas and
the airspace of those areas.
Subpart B_Policy
Sec. 211.4 Policy.
(a) It is an objective of the Department of Defense to ensure that
the robust development of renewable energy sources and the increased
resiliency of the commercial electrical grid may move forward in the
United States, while minimizing or mitigating any adverse impacts on
military operations and readiness.
(b) The participation of the DoD in the process of the Federal
Aviation Administration conducted pursuant to 49 U.S.C. 44718 shall be
conducted in accordance with this part. No other process shall be used
by a DoD Component.
(c) Nothing in this part shall be construed as affecting the
authority of the Secretary of Transportation under 49 U.S.C. 44718.
Sec. 211.5 Responsibilities.
(a) Pursuant to subsection (e)(4) of section 358, the Deputy
Secretary of Defense is designated as the senior officer. Only the
senior officer may convey to the Secretary of Transportation a
determination that a project filed with the Secretary of Transportation
pursuant to 49 U.S.C. 44718 would result in an unacceptable risk to the
national security of the United States.
(b) Pursuant to subsection (b)(1) of section 358, the Under
Secretary of Defense for Acquisition, Technology, and Logistics is
designated as the senior official. Only the senior official may provide
to the senior officer a recommendation that the senior officer determine
a project filed with the Secretary of Transportation pursuant to 49
U.S.C. 44718 would result in an unacceptable risk to the national
security of the United States.
(c) Pursuant to subsection (e)(1) of section 358, the Deputy Under
Secretary of Defense (Installations & Environment), in coordination with
the Deputy Assistant Secretary of Defense (Readiness) and the Principal
Deputy Director, Operational Test and Evaluation, shall review a proper
application for a project filed pursuant to 49 U.S.C. 44718 and received
from the Secretary of Transportation and provide a preliminary
assessment of the level of risk of adverse impact on military operations
and readiness that would arise from the project and the extent of
mitigation that may be needed to address such risk.
(d) Pursuant to subsection (b)(1) of section 358, the Office of the
Deputy Under Secretary of Defense (Installations & Environment) is
designated as the lead organization. Under the authority, direction, and
control of the Under Secretary of Defense for Acquisition, Technology,
and Logistics, there is, within the Office of the Deputy Under
Secretary, a DoD Siting Clearinghouse. The Clearinghouse:
(1) Shall have a governing board organized in accordance with DoD
Instruction 5105.18, DoD Intergovernmental and Intragovernmental
Committee Management Program.
(2) Has an executive director who is a Federal Government employee,
appointed by the Deputy Under Secretary of Defense (Installations &
Environment).
(3) Performs such duties as assigned in this part and as the Deputy
Under Secretary directs.
Subpart C_Project Evaluation Procedures
Sec. 211.6 Initiating a formal DoD review of a proposed project.
(a) A formal review of a proposed project begins with the receipt
from the Secretary of Transportation by the Clearinghouse of a proper
application filed with the Secretary of Transportation pursuant to 49
U.S.C. 44718.
(1) The Clearinghouse will convey the application as received to
those DoD Components it believes may have an interest in reviewing the
application.
(2) The DoD Components that receive the application shall provide
their comments and recommendations on the application to the
Clearinghouse no later than 20 days after they receive the application.
(3) Not later than 30 days after receiving the application from the
Secretary of Transportation, the Clearinghouse shall evaluate all
comments and
[[Page 412]]
recommendations received and take one of three actions:
(i) Determine that the proposed project will not have an adverse
impact on military operations and readiness, in which case it shall
notify the Secretary of Transportation of such determination.
(ii) Determine that the proposed project will have an adverse impact
on military operations and readiness but that the adverse impact
involved is sufficiently attenuated that it does not require mitigation.
When the Clearinghouse makes such a determination, it shall notify the
Secretary of Transportation of such determination.
(iii) Determine that the proposed project may have an adverse impact
on military operations and readiness. When the Clearinghouse makes such
a determination it shall immediately--
(A) Notify the applicant of the determination of the Clearinghouse
and offer to discuss mitigation with the applicant to reduce the adverse
impact;
(B) Designate one or more DoD Components to engage in discussions
with the applicant to attempt to mitigate the adverse impact;
(C) Notify the Secretary of Transportation that the Department of
Defense has determined that the proposed project may have an adverse
impact on military operations and readiness, and, if the cause of the
adverse impact is due to the proposed project exceeding an obstruction
standard set forth in subpart C of part 77 of title 14 of the Code of
Federal Regulations, identify the specific standard and how it would be
exceeded; and
(D) Notify the Secretary of Transportation and the Secretary of
Homeland Security that the Clearinghouse has offered to engage in
mitigation discussions with the applicant.
(4) The applicant must provide to the Clearinghouse its agreement to
discuss the possibility of mitigation within five days of receipt of the
notification from the Clearinghouse.
(b) If the applicant agrees to enter into discussions with the DoD
to seek to mitigate an adverse impact, the designated DoD Components
shall engage in discussions with the applicant to attempt to reach
agreement on measures that would mitigate the adverse impact of the
proposed project on military operations and readiness. The Clearinghouse
shall invite the Administrator of the Federal Aviation Administration
and the Secretary of Homeland Security to participate in such
discussions. The Clearinghouse may also invite other Federal agencies to
participate in such discussions.
(1) Such discussions shall not extend more than 90 days beyond the
initial notification to the applicant, unless both the designated DoD
Components and the applicant agree, in writing, to an extension of a
specific period of time.
(i) If agreement between the applicant and the designated DoD
Components has not been reached on mitigation measures by that time and
no extension has been mutually agreed to, the designated DoD Components
shall notify the Clearinghouse of the results of the discussions and the
analysis and recommendations of the Components with regard to the
proposed project as it is proposed after discussions.
(ii) If agreement between the applicant and the designated DoD
Components has been reached on mitigation measures that remove the
adverse impact of the proposed project on military operations and
readiness, the DoD Components shall notify the Clearinghouse of the
agreement. If the mitigation measures entail modification to the
proposed project, the applicant shall notify the Secretary of
Transportation of such agreement and amend its application accordingly.
(2) If the applicant and the designated DoD Components are unable to
reach agreement on mitigation, the Clearinghouse shall review the
analysis and recommendations of the DoD Components and determine if the
proposed project as it may have been modified by the applicant after
discussions would result in an unacceptable risk to the national
security of the United States.
(i) If the Clearinghouse determines that the proposed project as it
may have been modified by the applicant after discussions would result
in an unacceptable risk to the national security of the United States,
it shall make a recommendation to the senior official to that effect. If
the Clearinghouse
[[Page 413]]
determines, contrary to the recommendations of the DoD Components, that
the proposed project as it may have been modified by the applicant after
discussions would not result in an unacceptable risk to the national
security of the United States, it shall make a recommendation to the
senior official to that effect.
(ii) If the senior official concurs with the recommendation of the
Clearinghouse, the senior official shall make a recommendation to the
senior officer that is consistent with the recommendation of the
Clearinghouse. If the senior official does not agree with the
recommendation of the Clearinghouse, the senior official may make a
recommendation to the senior officer to that effect.
(iii) The senior officer shall consider the recommendation of the
senior official, and, after giving full consideration to mitigation
actions available to the DoD and those agreed to by the applicant,
determine whether the proposed project as it may have been modified by
the applicant would result in an unacceptable risk to the national
security of the United States. If the senior officer makes such a
determination, the senior officer shall convey that determination to the
Secretary of Transportation, identifying which of the three criteria in
Sec. 211.3 creates the unacceptable risk to the national security of
the United States.
(iv) Any mitigation discussions engaged in by the Department of
Defense pursuant to this part shall not be binding upon any other
Federal agency, nor waive required compliance with any other law or
regulation.
(c) If the applicant does not agree to enter into discussions with
the DoD to seek to mitigate an adverse impact, the Clearinghouse shall
review the analysis and recommendations of the designated DoD Components
and determine if the proposed project would result in an unacceptable
risk to the national security of the United States.
(1) If the Clearinghouse determines that the proposed project would
result in an unacceptable risk to the national security of the United
States, it shall make a recommendation to the senior official to that
effect. If the Clearinghouse determines, contrary to the recommendations
of the DoD Components, that the proposed project would not result in an
unacceptable risk to the national security of the United States, it
shall make a recommendation to the senior official to that effect.
(2) If the senior official concurs with the recommendation of the
Clearinghouse, the senior official shall make a recommendation to the
senior officer that is consistent with the recommendation of the
Clearinghouse. If the senior official does not agree with the
recommendation of the Clearinghouse, the senior official may make a
recommendation to the senior officer to that effect.
(3) The senior officer shall consider the recommendation of the
senior official, and, after giving full consideration to mitigation
actions available to the DoD and those agreed to by the applicant,
determine whether the proposed project would result in an unacceptable
risk to the national security of the United States. If the senior
officer makes such a determination, the senior officer shall convey that
determination to the Secretary of Transportation, identifying which of
the three criteria in Sec. 211.3 creates the unacceptable risk to the
national security of the United States.
(d) The Clearinghouse may, on behalf of itself, the senior official,
or the senior officer, seek an extension of time from the Secretary of
Transportation for consideration of the application.
Sec. 211.7 Initiating an informal DoD review of a proposed project.
(a) An informal review of a project begins with the receipt from a
requester by the Clearinghouse of a request for an informal review. In
seeking an informal review, the requester shall provide the following
information to the Clearinghouse:
(1) The geographic location of the project including its latitude
and longitude,
(2) The height of the project,
(3) The nature of the project.
(4) The requester is encouraged to provide as much additional
information as is available. The more information provided by the
requester, the greater will be the accuracy and reliability of the
resulting DoD review.
[[Page 414]]
When a request for an informal review includes information that is
proprietary or competition sensitive, requesters are encouraged to mark
the documents they submit accordingly.
(b) The Clearinghouse shall, within five days of receiving the
information provided by the requester, convey that information to those
DoD Components it believes may have an interest in reviewing the
request.
(1) The DoD Components that receive the request from the
Clearinghouse shall provide their comments and recommendations on the
request to the Clearinghouse no later than 30 days after they receive
the request.
(2) Not later than 50 days after receiving the request from the
requester, the Clearinghouse shall evaluate all comments and
recommendations received and take one of three actions:
(i) Determine that the project will not have an adverse impact on
military operations and readiness, in which case it shall notify the
requester of such determination. In doing so, the Clearinghouse shall
also advise the requester that the informal review by the DoD does not
constitute an action under 49 U.S.C. 44718 and that neither the DoD nor
the Secretary of Transportation are bound by the determination made
under the informal review.
(ii) Determine that the project will have an adverse impact on
military operations and readiness but that the adverse impact involved
is sufficiently attenuated that it does not require mitigation. The
Clearinghouse shall notify the requester of such determination. In doing
so, the Clearinghouse shall also advise the requester that the informal
review by the DoD does not constitute an action under 49 U.S.C. 44718
and that neither the DoD nor the Secretary of Transportation are bound
by the determination made under the informal review.
(iii) Determine that the project will have an adverse impact on
military operations and readiness.
(A) When the requester is the project proponent, the Clearinghouse
shall immediately--
(1) Notify the requester of the determination and the reasons for
the conclusion of the Clearinghouse and advise the requester that the
DoD would like to discuss the possibility of mitigation to reduce any
adverse impact; and
(2) Designate one or more DoD Components to engage in discussions
with the requester to attempt to mitigate the adverse impact.
(B) When the requester is a State, Indian tribal, or local official
or a landowner, notify the requester of the determination and the
reasons for that conclusion.
(c) If the requester is the project proponent and agrees to enter
into discussions with the DoD to seek to mitigate an adverse impact, the
designated DoD Components shall engage in discussions with the requester
in an attempt to reach agreement on measures that would mitigate the
adverse impact of the project on military operations and readiness.
Sec. 211.8 Inquiries received by DoD Components.
(a) An inquiry received by a DoD Component other than the
Clearinghouse relating to an application filed with the Secretary of
Transportation pursuant to 49 U.S.C. 44718 shall be forwarded to the
Clearinghouse by the DoD Component except when that DoD Component has
been designated by the Clearinghouse to engage in discussions with the
entity making the inquiry.
(b) A request for informal DoD review or any other inquiry related
to matters covered by this part and received by a DoD Component other
than the Clearinghouse shall be forwarded to the Clearinghouse by that
Component except when that DoD Component has been designated by the
Clearinghouse to engage in discussions with the entity making the
request.
Sec. 211.9 Mitigation options.
(a) In discussing mitigation to avoid an unacceptable risk to the
national security of the United States, the DoD Components designated to
discuss mitigation with an applicant or requester shall, as appropriate
and as time allows, analyze the following types of DoD mitigation to
determine if they identify feasible and affordable actions that may be
taken to mitigate adverse impacts of projects on military operations and
readiness:
[[Page 415]]
(1) Modifications to military operations.
(2) Modifications to radars or other items of military equipment.
(3) Modifications to military test and evaluation activities,
military training routes, or military training procedures.
(4) Providing upgrades or modifications to existing systems or
procedures.
(5) The acquisition of new systems by the DoD and other departments
and agencies of the Federal Government.
(b) In discussing mitigation to avoid an unacceptable risk to the
national security of the United States, the applicant or requester, as
the case may be, should consider the following possible actions:
(1) Modification of the proposed structure, operating
characteristics, or the equipment in the proposed project.
(2) Changing the location of the proposed project.
(3) Limiting daily operating hours or the number of days the
equipment in the proposed structure is in use in order to avoid
interference with military activities.
(4) Providing a voluntary contribution of funds to offset the cost
of measures undertaken by the Secretary of Defense to mitigate adverse
impacts of the project on military operations and readiness.
Sec. 211.10 Reporting determinations to Congress.
(a) Not later than 30 days after making a determination of
unacceptable risk pursuant to Sec. 211.6, the senior officer shall
submit to the congressional defense committees a report on such
determination and the basis for such determination.
(b) Such a report shall include--
(1) An explanation of the operational impact that led to the
determination.
(2) A discussion of the mitigation options considered.
(3) An explanation of why the mitigation options were not feasible
or did not resolve the conflict.
Subpart D_Communications and Outreach
Sec. 211.11 Communications with the Clearinghouse.
All communications to the Clearinghouse by applicants, requesters,
or members of the public should be addressed to: Executive Director, DoD
Siting Clearinghouse, Office of the Deputy Under Secretary of Defense
(Installations and Environment), Room 5C646, 3400 Defense Pentagon,
Washington, DC 20301-3400, or, if by electronic mail, to
[email protected]. Additional information about the
Clearinghouse and means of contacting it are available at the following
URL: http://www.acq.mil/ie/sch.
Sec. 211.12 Public outreach.
(a) The DoD shall establish a Web site accessible to the public
that--
(1) Lists the applications that the DoD is currently considering.
(2) Identifies the stage of the action, e.g., preliminary review,
referred for mitigation discussions, determined to be an unacceptable
risk.
(3) Indicates how the public may provide comments to the DoD.
(b) The Clearinghouse shall publish a handbook to provide
applicants, requesters, and members of the public with necessary
information to assist them in participating in the Mission Compatibility
Evaluation Process.
PART 212_PROCEDURES AND SUPPORT FOR NON-FEDERAL ENTITIES AUTHORIZED
TO OPERATE ON DEPARTMENT OF DEFENSE (DOD) INSTALLATIONS--
Table of Contents
Sec.
212.1 Purpose.
212.2 Applicability.
212.3 Definitions.
212.4 Policy.
212.5 Responsibilities.
212.6 Procedures.
Appendix A to Part 212--Non-Federal Entities Having Statutory
Authorization for Particular Support
Authority: 5 U.S.C. 301; 10 U.S.C. 2554; 10 U.S.C. 2606; and 36
U.S.C. 300110
Source: 73 FR 59506, Oct. 9, 2008, unless otherwise noted.
[[Page 416]]
Sec. 212.1 Purpose.
This part:
(a) Implements 32 CFR part 213.
(b) Updates responsibilities and procedures to define and
reestablish a framework for non-Federal entities authorized to operate
on Department of Defense (DoD) installations.
Sec. 212.2 Applicability.
(a) This part applies to:
(1) The Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff and
the Joint Staff, the Combatant Commands, the Office of Inspector General
of the Department of Defense, the Defense Agencies, the DoD Field
Activities, and all other organizational entities within the Department
of Defense (hereafter referred to collectively as the ``DoD
Components'').
(2) Non-Federal entities authorized to operate on DoD installations.
(b) This part shall not apply to:
(1) Military relief societies.
(2) Banks or credit unions according to 32 CFR part 230.
(3) Support provided under Innovative Readiness Training according
to DoD Directive 1100.20. \1\
---------------------------------------------------------------------------
\1\ Copies of unclassified DoD Directives, Instructions,
Publications, and Administrative Instructions may be obtained at http://
www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
Sec. 212.3 Definitions.
DoD installation: As used in this instruction, a base, camp, post,
station, yard, center, homeport facility for any ship, or other activity
under the jurisdiction of the Department of Defense, including any
leased facility or, in the case of an activity in a foreign country,
under the operational control of the Department of Defense. This term
does not include any facility used primarily for civil works, rivers and
harbor projects, or flood control projects.
Non-Federal entities. A self-sustaining organization, incorporated
or unincorporated, that is not an agency or instrumentality of the
Federal government. This part addresses only those entities that operate
on DoD installations with the express consent of the installation
commander or higher authority. Membership of these organizations
consists of individuals acting exclusively outside the scope of any
official capacity as officers, employees, or agents of the Federal
Government. Non-Federal entities include a State, interstate, Indian
tribal, or local government, as well as private organizations.
United States. As used in this part, the 50 States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, the U.S. Virgin Islands, Guam, American Samoa,
Johnston Atoll, Kingman Reef, Midway Island, Nassau Island, Palmyra
Island, Wake Island, and any other territory or possession of the United
States, and associated navigable waters, including the territorial seas.
Sec. 212.4 Policy.
It is DoD policy, consistent with 32 CFR part 213, that procedures
be established for the operation of non-Federal entities on DoD
installations to prevent official sanction, endorsement, or support by
the DoD Components except as authorized in DoD 5500.7-R and applicable
law. The Department recognizes that non-Federal entity support of
Service members and their families can be important to their welfare.
Non-Federal entities are not entitled to sovereign immunity and
privileges accorded to Federal agencies and instrumentalities. The DoD
Components shall take action to preclude unauthorized expenditures of
appropriated funds, commissary surcharge, or nonappropriated funds (NAF)
in support of these organizations.
Sec. 212.5 Responsibilities.
(a) The Principal Deputy Under Secretary for Personnel and
Readiness, under the Under Secretary of Defense for Personnel and
Readiness and in coordination with the Deputy Under Secretary of Defense
for Installations and Environment and subject to DoD Directive 4165.6,
shall be responsible for implementing policy and oversight of non-
Federal entities on DoD installations.
(b) The Heads of the DoD Components shall:
(1) Implement this part.
[[Page 417]]
(2) Be aware of all non-Federal entities operating on installations
under their jurisdiction.
(3) Conduct reviews to ensure installation commanders periodically
review facilities, programs, and services provided by non-Federal
entities operating on DoD installations. Installation commanders will
also review membership provisions and the original purpose for which
each organization was originally approved. Substantial changes to those
original conditions shall necessitate further review, documentation, and
approval for continued permission to operate on the installation.
Sec. 212.6 Procedures.
(a) To prevent the appearance of official sanction or support by the
Department of Defense:
(1) Non-Federal entities may not use the seals, logos, or insignia
of the Department of Defense or any DoD Component, DoD organizational
unit, or DoD installation on organization letterhead, correspondence,
titles, or in association with organization programs, locations, or
activities.
(2) Non-Federal entities operating on DoD installations may use the
name or abbreviation of the Department of Defense, a DoD Component,
organizational unit, or installation in its name provided that its
status as a non-Federal entity is apparent and unambiguous and there is
no appearance of official sanction or support by the Department of
Defense. The following applies:
(i) The non-Federal entity must have approval from the appropriate
DoD organization whose name or abbreviation is to be used before using
the name or abbreviation.
(ii) Any use of the name or abbreviation of a DoD Component,
organizational unit, or installation must not mislead members of the
public to assume a non-Federal entity is an organizational unit of the
Department of Defense.
(iii) A non-Federal entity must prominently display the following
disclaimer on all print and electronic media mentioning the entity's
name confirming that the entity is not a part of the Department of
Defense: ``THIS IS A NON-FEDERAL ENTITY. IT IS NOT A PART OF THE
DEPARTMENT OF DEFENSE OR ANY OF ITS COMPONENTS AND IT HAS NO
GOVERNMENTAL STATUS.'' This disclaimer must also be provided in
appropriate oral communications and public announcements when the name
of the entity is used.
(b) Activities of non-Federal entities covered by this part shall
not in any way prejudice or discredit the DoD Components or other
Federal Government agencies.
(c) Subject to DoD Directive 4165.6 as it relates to real property,
installation commanders shall approve written agreements that indicate
permission to operate on the installation and any logistical support
that will be provided. DoD personnel acting in an official capacity will
not execute any charter that will serve as the legal basis for the non-
Federal entity. The nature, function, and objectives of a non-Federal
entity covered by this part shall be delineated in articles of
incorporation, a written constitution, bylaws, charters, articles of
agreement, or other authorization documents before receiving approval
from the installation commander to operate on the installation. That
documentation shall also include:
(1) Description of eligible membership in the non-Federal entity.
(i) No person because of race, color, creed, sex, age, disability,
or national origin shall be unlawfully denied membership, unlawfully
excluded from participation, or otherwise subjected to unlawful
discrimination by any non-Federal entity or other private organization
covered by this part.
(ii) Installation commanders will distribute information on
procedures for individuals to follow when they suspect unlawful
discrimination by the organization.
(2) Designation of management responsibilities, including the
accountability for assets, satisfaction of liabilities, disposition of
any residual assets on dissolution, and other documentation that shows
responsible financial management.
(3) A certification indicating that members understand they are
personally liable, as provided by law, if the assets of the non-Federal
entity are insufficient to discharge all liabilities.
[[Page 418]]
(4) Guidance relating to professional scouting organizations
operating at U.S. military installations located overseas can be found
in DoD Instruction 1015.9.
(i) In accordance with DoD 5500.7-R, which contains a policy on
sponsorship of non-Federal entities by DoD personnel acting in an
official capacity, DoD personnel acting in an official capacity shall
not execute charters that serve as the legal basis for the creation of
Boy Scouts organizations (including Boy Scouts, Cub Scout Packs, or
Venturer Crews).
(ii) In accordance with U.S. District Court for the Northern
District of Illinois, Eastern Division, Decision No. 1999 CV 02424,
while such chartering is not allowed, nothing in this part is intended
to preclude, if otherwise authorized by law or regulation, DoD support
to Boy Scouts or their official affiliates; Boy Scouts activities on DoD
installations; or sponsorship of Boy Scout organizations by DoD
personnel in their personal capacity. Existing charters executed by DoD
personnel in their official capacity shall be terminated or amended to
substitute sponsorship by an appropriate individual, volunteer, group,
or organization, consistent with DoD policy. \2\
---------------------------------------------------------------------------
\2\ Paragraph mandated by ``Partial Settlement Agreement Between
Plaintiffs and Secretary Rumsfeld'', United States District Court for
the Northern District of Illinois, Eastern Division, No. 1999 CV 02424
(Eugene Winkler, et al., v. Chicago School Reform Board of Trustees, et
al.)
---------------------------------------------------------------------------
(d) A non-Federal entity covered by this part shall not offer
programs or services on DoD installations that compete with appropriated
or NAF activities, but may, when specifically authorized, supplement
those activities.
(1) Installation commanders, or higher authorities if the
installation commander has not been delegated such authority, will
determine if the services of a non-Federal entity conflict with or
detract from local DoD programs. The cognizant commander has
discretionary authority over the operations of non-Federal entities on
DoD installations. Commanders are authorized to eliminate duplication of
services, particularly when these services compete with the
installation's revenue-generating activities.
(2) Background checks are required for employees and volunteers of
non-Federal entities who have contact with children under the age of 18
in DoD- operated, -contracted, or community-based programs that are used
to supplement or expand child care or youth services, according to DoD
Instruction 1402.5.
(e) Non-Federal entities covered by this part shall be self-
sustaining, primarily through dues, contributions, service charges,
fees, or special assessment of members. There shall be no financial
assistance to such an entity from a NAF Instrumentality (NAFI) in the
form of contributions, repairs, services, dividends, or other donations
of money or other assets. Fundraising and membership drives are governed
by DoD 5500.7-R.
(f) Non-Federal entities are not entitled to DoD support. However,
support may be provided when it is consistent with and supportive of the
military mission of the DoD Component concerned. Such support may be
provided only when it can be offered within the capability of the
installation commander without detriment to the commander's ability to
fulfill the military mission, and when it is permitted under applicable
Status of Forces Agreements. The DoD Components may provide logistical
support to non-Federal entities with appropriated funds to the extent
authorized by DoD 5500.7-R and applicable law. NAFI funds or assets
shall not be directly or indirectly transferred to non-Federal entities
according to DoD Instruction 1015.15.
(g) Personal and professional participation in non-Federal entities
by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in an
official capacity will not execute charters that serve as the legal
basis for any non-Federal entity or other private organization.
(h) Neither appropriated fund activities nor NAFIs may assert any
claim to the assets, or incur or assume any obligation, of any non-
Federal entity covered by this part, except as may arise out of
contractual relationships or as provided by law. Property shall not be
[[Page 419]]
abandoned on the installation by a non-Federal entity and may only be
acquired by the DoD installation by purchase or through donation agreed
to by the Department of Defense.
(i) The non-Federal entity shall have adequate insurance, as defined
by the DoD Component concerned, to protect against liability and
property damage claims or other legal actions that may arise due to its
activities, those of its members, or the operation of its equipment or
devices. The DoD Components will not assume liability (through insurance
or other means) for any activities or assets of non-Federal entities.
(j) Non-Federal entities shall comply with applicable fire and
safety regulations; environmental laws; local, State, and Federal tax
codes; and any other applicable statutes or regulations.
(k) Income from a non-Federal entity or its activities shall not
accrue to individual members of a non-Federal entity except through
wages and salaries as employees of the non-Federal entity or as award
recognition for services rendered to the non-Federal entity or military
community. This prohibition is not meant to preclude operation of
investment clubs, in which the investment of members' personal funds
result in a return on investment directly and solely to the individual
members.
(l) Employees of non-Federal entities are not employees of the
United States or of an instrumentality of the United States. Applicable
laws on labor standards for employment shall be observed, including
worker's compensation insurance. Employees of non-Federal entities shall
not participate in NAF employee benefit programs based upon their
affiliation with the non-Federal entity.
(m) Non-Federal entities that have statutory authorization for
particular support are listed at Appendix A to this part.
(n) Certain unofficial activities conducted on DoD installations do
not need formal authorization because of the limited scope of their
activities. Examples are office coffee funds, flower funds, and similar
small, informal activities and funds. The DoD Components shall establish
the basis upon which such informal activities and funds shall operate.
Sec. Appendix A to Part 212--Non-Federal Entities Having Statutory
Authorization for Particular Support
------------------------------------------------------------------------
Non-Federal entity Authority
------------------------------------------------------------------------
Certain banks and credit unions........ Chapter 1770 of title 12,
United States Code (U.S.C.).
Title 32, Code of Federal
Regulations (CFR), part 230.
United Service Organization............ Section 220101 of title 36,
U.S.C.
Title 32, CFR, part 213.
Memorandum of Understanding
(MOU) between DoD and the
United Service Organization.
Labor organizations.................... Title 5, U.S.C., Chapter 71.
DoD 1400.25-M, subchapter 711.
Combined Federal Campaign.............. Executive Order 12353.
Title 5, CFR, part 950.
DoD Instruction 5035.1.
DoD Instruction 5035.5.
American Registry of Pathology......... Section 177 of title 10 U.S.C.
Henry M. Jackson Foundation for the Section 178 of title 10 U.S.C.
Advancement of Military Medicine.
American National Red Cross............ Section 2552 of title 10 U.S.C.
Section 2602 of title 10 U.S.C.
Secretary of The Army
Memorandum. ``Support to the
Red Cross During Times of
Conflict''.
Title 32, CFR, part 213.
MOU between the Department of
Justice and American Red
Cross.
Boy Scouts Jamborees................... Section 2554 of title 10 U.S.C.
Girl Scouts International Events Section 2555 of title 10 U.S.C.
(Transportation).
DoD Instruction 1015.9.
Shelter for Homeless................... Section 2556 of title 10 U.S.C.
National Military Associations; Section 2558 of title 10 U.S.C.
Assistance at National Conventions.
DoD Directive 5410.18.
DoD Instruction 5410.19.
[[Page 420]]
National Veterans' Organizations (Beds Section 2551 of title 10 U.S.C.
and Barracks).
United Seamen's Service Organization... Section 2604 of title 10 U.S.C.
Title 32, CFR, part 213.
Scouting: Cooperation and Assistance in Section 2606 of title 10 U.S.C.
Foreign Areas.
DoD Instruction 1015.9.
Civil Air Patrol....................... Section 9441 of title 10 U.S.C.
Section 9442 of title 10 U.S.C.
Section 40301 of title 36
U.S.C.
Assistance for certain youth and Section 508 of title 32 U.S.C.
charitable organizations.
DoD Directive 1100.20.
Presidential Inaugural Ceremonies...... Section 2553 of title 10 U.S.C.
Specified Sporting Events (Olympics)... Section 2564 of title 10 U.S.C.
DoD Directive 2000.15.
Fire Protection Agreements............. Section 1856 of title 42 U.S.C.
et seq.
Armed Services Young Men's Christian Section 2012 of title 10 U.S.C.
Association.
Section 2648 of title 10 U.S.C.
Section 508 of title 32, U.S.C.
MOU between DoD and the Armed
Services YMCA.
Support for Youth Organizations........ Section 1058 of Public Law 109-
163 (Note to Section 301 of
title 5 U.S.C.).
Section 8126 of Public Law 109-
148 (Note to Section 101 of
title 10 U.S.C. and Section
301 of title 5 U.S.C.).
------------------------------------------------------------------------
PART 213_SUPPORT FOR NON-FEDERAL ENTITIES AUTHORIZED TO OPERATE ON DOD
INSTALLATIONS--Table of Contents
Sec.
213.1 Purpose.
213.2 Applicability and scope.
213.3 Definition.
213.4 Policy.
213.5 Responsibilities.
Authority: 10 U.S.C. 2554 and 2606.
Source: 72 FR 56012, Oct. 2, 2007, unless otherwise noted.
Sec. 213.1 Purpose.
(a) Authorizes 32 CFR part 212.
(b) Establishes policy and assigns responsibilities under DoD
Directive 5124.8 \1\ for standardizing support to non-Federal entities
authorized to operate on DoD installations.
---------------------------------------------------------------------------
\1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(c) Designates the Secretary of the Army as the DoD Executive Agent
(DoD EA) according to DoD Directive 5101.1: \2\
---------------------------------------------------------------------------
\2\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(1) For DoD support to the Boy Scouts of America (BSA) and Girl
Scouts of the United States of America (GSUSA) local councils and
organizations in areas outside of the United States 10 U.S.C. 2606. DoD
support will also cover the periodic national jamboree according to 10
U.S.C. 2606.
(2) To perform the annual audit of the American Red Cross (ARC)
accounts and to prepare and submit the annual report to Congress
according to 36 U.S.C. 300110.
(3) To provide the ARC with the necessary deployment support.
(d) Designates the Secretary of the Air Force as the DoD EA
responsible for conducting the Armed Forces Entertainment (AFE) program.
Sec. 213.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Office of the Inspector General of the Department of
Defense, the Defense Agencies, the DoD Field Activities, and all other
organizational entities within the Department of Defense (hereafter
referred to collectively as the ``DoD Components'') and non-Federal
entities authorized to operate on DoD installations.
(b) Shall not revise, modify, or rescind any Memorandum of
Understanding (MOU) between a non-Federal entity and the U.S. Government
or the Department of Defense or their implementing arrangements in
existence as of the effective date of this Directive. Additionally, the
Directive shall not
[[Page 421]]
revise, modify, or rescind any MOU between the Department of Justice
(DoJ) and the Department of Defense that is in existence as of the
effective date of this Directive. Any such agreements shall, as they
expire, come up for renewal, or as circumstances otherwise permit, be
revised to conform to this Directive and any implementing guidance.
(c) Does not apply to banks or credit unions addressed in DoD
Directive 1000.11 \3\ or the Civil Air Patrol according to 10 U.S.C.
2554, 2606 and 9441.
---------------------------------------------------------------------------
\3\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
Sec. 213.3 Definition.
Non-federal entities. A non-Federal entity is generally a self-
sustaining, non-Federal person or organization, established, operated,
and controlled by any individual(s) acting outside the scope of any
official capacity as officers, employees, or agents of the Federal
Government. This Directive addresses only those entities that may
operate on DoD installations with the express consent of the
installation commander or higher authority under applicable regulations.
Non-Federal entities may include elements of state, interstate, Indian
tribal, and local government, as well as private organizations.
Sec. 213.4 Policy.
It is DoD policy that:
(a) DoD support for non-Federal entities shall be in accordance with
relevant statutes as well as DoD 5500.7-R \4\. In accordance with DoD
5500.7-R and to avoid preferential treatment, DoD support should be
uniform, recognizing that non-Federal entity support of Service members
and their families can be important to their welfare.
---------------------------------------------------------------------------
\4\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(b) Under DoD Directive 5124.8 procedures shall be established as
Instructions and agreements for the operation of non-Federal entities on
DoD installations and for the prohibition of official sanction,
endorsement, or support by the DoD Components and officials, except as
authorized by DoD 5500.7-R and applicable law. Instructions and
agreements must be compatible with the primary mission of the Department
and provide for Congressionally authorized support to non-Federal
entities on DoD installations.
(c) In accordance with DoD 5500.7-R, installation commanders or
higher authority may authorize, in writing, logistical support for
events, including fundraising events, sponsored by non-Federal entities
covered by this part.
(d) Installation commanders or higher authority may coordinate with
non-Federal entities in order to support appropriated or nonappropriated
fund activities on DoD installations, so long as the support provided by
the non-Federal entities does not compete with appropriated or
nonappropriated fund activities.
(e) Non-Federal entities are not entitled to sovereign immunity and
the privileges given to Federal entities and instrumentalities.
Sec. 213.5 Responsibilities.
(a) The Principal Deputy Under Secretary of Defense for Personnel
and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for
Personnel and Readiness, shall:
(1) Be responsible for implementing all policy matters and Office of
the Secretary of Defense oversight of non-Federal entities on DoD
installations.
(2) Develop procedures and execute any necessary agreements to
implement policy for the operation of non-Federal entities on DoD
installations.
(3) Assign responsibilities to the DoD Components to accomplish
specific oversight and administrative responsibilities with respect to
non-Federal entities operating on DoD installations.
(4) Oversee the activities of the designated DoD EA, assessing the
need for continuation, currency, effectiveness, and efficiency of the
DoD EA according to 10 U.S.C. 2554 and 2606. Make recommendations for
establishment of additional DoD EA assignments and arrangements as
necessary.
(b) The Secretary of the Army, as the designated DoD EA, and
according to 10 U.S.C. 2554 and 2606, shall:
(1) Perform the audit of the annual ARC accounts and prepare and
submit the annual report according to 36 U.S.C. 300110 and this part.
[[Page 422]]
(2) Coordinate support to the BSA and GSUSA according to DoD
Instruction 1015.9 \5\ and this part.
---------------------------------------------------------------------------
\5\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(3) Provide necessary deployment support to ARC according to an
approved DoD and ARC MOU. Initially, the Army will cover costs, except
those paid by the ARC. The Army will then be reimbursed, upon its
request, by the entity directly benefiting from the ARC support.
(4) Designate a point of contact to coordinate matters regarding the
DoD EA responsibilities, functions, and authorities.
(c) The Secretary of the Air Force, as the designated DoD EA with
responsibility for conducting the AFE program, shall administer the AFE
program according to 10 U.S.C. 2554 and 2606, DoD Instruction 1330.13
\6\, and this part to include the following:
---------------------------------------------------------------------------
\6\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
(1) Annually determine with the other DoD Components and the
PDUSD(P&R) the scope of the program.
(2) Budget, fund, and maintain accountability for approved
appropriated fund expenses. Develop and implement supplemental guidance
to identify allowable expenses and reimbursements.
(3) Provide centralized services for selecting, declining,
scheduling, and processing entertainment groups for overseas.
(4) Designate a point of contact to coordinate matters regarding the
DoD EA responsibilities, functions, and authorities.
PART 216_MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS
PROGRAM ACCESS TO INSTITUTIONS OF HIGHER EDUCATION--Table of Contents
Sec.
216.1 Purpose.
216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
216.6 Information requirements.
Appendix A to Part 216--Military Recruiting Sample Letter of Inquiry
Appendix B to Part 216--ROTC Sample Letter of Inquiry
Authority: 10 U.S.C. 983.
Source: 73 FR 16527, Apr. 28, 2008, unless otherwise noted.
Sec. 216.1 Purpose.
This part:
(a) Implements 10 U.S.C. 983.
(b) Updates policy and responsibilities relating to the management
of covered schools that have a policy of denying or effectively
preventing military recruiting personnel access to their campuses or
access to students on their campuses in a manner that is at least equal
in quality and scope to the access to campuses and to students provided
to any other employer, or access to student-recruiting information. The
term ``equal in quality and scope'' means the same access to campus and
students provided by the school to the any other nonmilitary recruiters
or employers receiving the most favorable access. The focus is not on
the content of a school's recruiting policy, but instead on the result
achieved by the policy and compares the access provided military
recruiters to that provided other recruiters. Therefore, it is
insufficient to comply with the statute (10 U.S.C. 983) if the policy
results in a greater level of access for other recruiters than for the
military.
(c) Updates policy and responsibilities relating to the management
of covered schools that have an anti-ROTC policy.
Sec. 216.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including the Coast Guard when it is operating as
a Military Service in the Navy), the Chairman of the Joint Chiefs of
Staff, the Combatant Commands, the Defense Agencies, and the DoD Field
Activities (hereafter referred to collectively as ``the DoD
Components''). This part also applies, by agreement with the Department
of Homeland Security (DHS), to the Coast Guard at all times, including
when it is a service in the Department of Homeland Security. The
policies herein also affect the Departments of Transportation, Homeland
Security, Energy
[[Page 423]]
(National Nuclear Security Administration), the Central Intelligence
Agency, and any department or agency in which regular appropriations are
made in the Departments of Labor, Health and Human Services, Education,
and Related Agencies Appropriations Act. The term ``Military Services,''
as used herein, refers to the Army, the Navy, the Marine Corps, the Air
Force, and the Coast Guard, including their Reserve or National Guard
Components. The term ``Related Agencies'' as used herein refers to the
Armed Forces Retirement Home, the Corporation for National and Community
Service, the Corporation for Public Broadcasting, the Federal Mediation
and Conciliation Service, the Federal Mine Safety and Health Review
Commission, the National Commission on Libraries and Information
Science, the National Council on Disability, the National Education
Goals Panel, the National Labor Relations Board, the National Mediation
Board, the Occupational Safety and Health Review Commission, the Social
Security Administration, the Railroad Retirement Board and the United
States Institute of Peace.
Sec. 216.3 Definitions.
(a) Anti-ROTC policy. A policy or practice whereby a covered school
prohibits or in effect prevents the Secretary of Defense from
maintaining, establishing, or efficiently operating a unit of the Senior
ROTC at the covered school, or prohibits or in effect prevents a student
at the covered school from enrolling in a Senior ROTC unit at another
institution of higher education.
(b) Covered funds. ``Covered funds'' is defined in 10 U.S.C. 983 as
any funds made available for the Departments of Defense, Transportation,
Homeland Security, or National Nuclear Security Administration of the
Department of Energy, the Central Intelligence Agency, or any department
or agency in which regular appropriations are made in the Departments of
Labor, Health and Human Services, and Education, as well as in Related
Agencies Appropriations Act (excluding any Federal funds provided to an
institution of higher education, or to an individual, to be available
solely for student financial assistance, related administrative costs,
or costs associated with attendance).
(c) Covered school. An institution of higher education, or a
subelement of an institution of higher education, subject to the
following clarifications:
(1) A determination (Sec. 216.5(a)) affecting only a subelement of
a parent institution (see Sec. 216.3(f)) effects a limitation on the
use of funds (see Sec. 216.4 (a)) applicable to the parent institution
as a whole, including the institution's offending subelement and all of
its subelements, if any.
(2) When an individual institution of higher education that is part
of a single university system (e.g., University of (State) at (City)--a
part of that state's university system) has a policy or practice that
prohibits, or in effect prevents, access to campuses or access to
students on campuses in a manner that is at least equal in quality and
scope to the access to its campus and students as it provides to any
other employer, or access to student-recruiting information by military
recruiters, or has an anti-ROTC policy, as defined in this rule, it is
only that individual institution within that university system that is
affected by the loss of Federal funds. This limited effect applies even
though another campus of the same university system may or may not be
affected by a separate determination under Sec. 216.5 (a). The funding
of a subelement of the offending individual institution of a single
university system, if any, will also be withheld as a result of the
policies or practices of that offending individual institution.
(d) Enrolled. Students are ``enrolled'' when registered for at least
one credit hour of academic credit at the covered school during the most
recent, current, or next term. Students who are enrolled during the most
recent term, but who are no longer attending the institution, are
included.
(e) Equal in quality and scope. The term means the same access to
campus and students provided by the school to the any other nonmilitary
recruiters or employers receiving the most favorable access. The focus
is not on the content of a school's recruiting policy, but instead on
the result achieved by the policy and compares the access provided
[[Page 424]]
military recruiters to that provided other recruiters. Therefore, it is
insufficient to comply with the statute if the policy results in a
greater level of access for other recruiters than for the military. The
U.S. Supreme Court further explained that ``the statute does not call
for an inquiry into why or how the `other employer' secured its access *
* * We do not think that the military recruiter has received equal
`access' [when a law firm is permitted on campus to recruit students and
the military is not]--regardless of whether the disparate treatment is
attributable to the military's failure to comply with the school's
nondiscrimination policy.''
(f) Institution of higher education. A domestic college, university,
or other institution (or subelement thereof) providing postsecondary
school courses of study, including foreign campuses of such domestic
institutions. The term includes junior colleges, community colleges, and
institutions providing courses leading to undergraduate and post-
graduate degrees. The term does not include entities that operate
exclusively outside the United States, its territories, and possessions.
A subelement of an institution of higher education is a discrete
(although not necessarily autonomous) organizational entity that may
establish policies or practices affecting military recruiting and
related actions (e.g., an undergraduate school, a law school, a medical
school, other graduate schools, or a national laboratory connected or
affiliated with that parent institution). For example, the School of Law
of XYZ University is a subelement of its parent institution (XYZ
University).
(g) Military recruiters. Personnel of DoD whose current assignment
or detail is to a recruiting activity of the DoD.
(h) Pacifism. Opposition to war or violence, demonstrated by refusal
to participate in military service.
(i) Student. An individual who is 17 years of age or older and is
enrolled at a covered school.
(j) Student-recruiting information. For those students currently
enrolled, the student's name, address, telephone listing, age (or year
of birth), place of birth, level of education (e.g., freshman,
sophomore, or degree awarded for a recent graduate), most recent
educational institution attended, and current major(s).
Sec. 216.4 Policy.
It is DoD policy that:
(a) Under 10 U.S.C. 983, no covered funds may be provided by
contract or grant (to include payment on such contracts or grants
previously obligated) to a covered school if the Secretary of Defense
determines that the covered school:
(1) Has a policy or practice (regardless of when implemented) that
either prohibits or in effect prevents the Secretary of Defense or
Secretary of Homeland Security from obtaining, for military recruiting
purposes, access to campuses or access to students on campuses that is
at least equal in quality and scope, as defined in Sec. 216.3(d), to
the access to campuses and to students provided to any other employer,
or access to directory information on students;
(2) Has failed to disseminate military visit information or alerts
at least on par with nonmilitary recruiters since schools offering such
services to nonmilitary recruiters must also send e-mails, post notices,
etc., on behalf of military recruiters to comply with the Solomon
Amendment;
(3) Has failed to schedule visits at times requested by military
recruiters that coincide with nonmilitary recruiters' visits to campus
if this results in a greater level of access for other recruiters than
for the military (e.g., offering non-military recruiters a choice of a
variety of dates for on-campus interviews while only offering the
military recruiters the final day of interviews), as schools must ensure
that their recruiting policies operate such that military recruiters are
given access to students equal to that provided to any other employer;
(4) Has failed to provide military recruiters with a mainstream
recruiting location amidst nonmilitary employers to allow unfettered
access to interviewees since military recruiters must be given the same
access as recruiters who comply with a school's nondiscrimination
policy;
(5) Has failed to enforce time, place, and manner policies
established by the
[[Page 425]]
covered school such that the military recruiters experience an inferior
or unsafe recruiting climate, as schools must allow military recruiters
on campus and must assist them in whatever way the school assists other
employers;
(6) Has through policy or practice in effect denied students
permission to participate, or has prevented students from participating,
in recruiting activities; or
(7) Has an anti-ROTC policy or practice, as defined in this rule,
regardless of when implemented.
(b) The limitations established in paragraph (a) of this section
shall not apply to a covered school if the Secretary of Defense
determines that the covered school:
(1) Has ceased the policies or practices defined in paragraph (a) of
this section;
(2) Has a long-standing policy of pacifism (see Sec. 216.3(j))
based on historical religious affiliation;
(3) When not providing requested access to campuses or to students
on campus, certifies that all employers are similarly excluded from
recruiting on the premises of the covered school, or presents evidence
that the degree of access by military recruiters is the same access to
campuses or to students on campuses provided to the nonmilitary
recruiters;
(4) When not providing any student-recruiting information, certifies
that such information is not maintained by the covered school; or that
such information already has been provided to the Military Service
concerned for that current semester, trimester, quarter, or other
academic term, or within the past 4 months (for institutions without
academic terms); or
(5) When not providing student-recruiting information for a specific
student certifies that the student concerned has formally requested, in
writing, that the covered school withhold this information from all
third parties.
(c) A covered school may charge military recruiters a fee for the
costs incurred in providing access to student-recruiting information
when that institution can certify that such charges are the actual
costs, provided that such charges are reasonable, customary and
identical to fees charged to other employers.
(d) An evaluation to determine whether a covered school maintains a
policy or practice covered by paragraphs (a)(1) through (a)(6) of this
section shall be undertaken when:
(1) Military recruiting personnel are prohibited, or in effect
prevented, from the same access to campuses or access to students on
campuses provided to nonmilitary recruiters, or are denied access to
student-recruiting information;
(2) Information or alerts on military visits are not distributed at
least on par with nonmilitary recruiters since schools offering such
services to nonmilitary recruiters must also send e-mails, post notices,
etc., on behalf of the military recruiter to comply with the Solomon
Amendment;
(3) Military recruiters are prohibited from scheduling their visits
at requested times that coincide with nonmilitary recruiters' visits to
its campus if this results in a greater level of access for other
recruiters than for the military as schools must ensure their recruiting
policy operates in such a way that military recruiters are given access
to students equal to that provided to any other employer;
(4) Military recruiters do not receive a mainstream recruiting
location amidst nonmilitary employers to allow unfettered access to
interviewees since military recruiters must be given the same access as
recruiters who comply with the school's nondiscrimination policy;
(5) The school has failed to enforce time, place, and manner
policies established by that school such that military recruiters
experience an unsafe recruiting climate, as schools must allow military
recruiters on campus and must assist them in whatever way the school
chooses to assist other employers;
(6) Evidence is discovered of an institution-sponsored policy or
practice that in effect denied students permission to participate, or
prevented students from participating in recruiting activities.
(7) The costs being charged by the school for providing student-
recruiting
[[Page 426]]
information are believed by the military recruiter to be excessive, and
the school does not provide information sufficient to support a
conclusion that such are the actual costs, provided that they are
reasonable and customary, and are identical to those costs charged to
other employers; or
(8) The covered school is unwilling to declare in writing, in
response to an inquiry from a representative of a DoD Component or a
representative from the Department of Homeland Security, that the
covered school does not have a policy or practice of prohibiting, or in
effect preventing, the Secretary of a Military Department or Secretary
of Homeland Security from the same access to campuses or access to
students on campuses provided to nonmilitary recruiters, or access to
student-recruiting information by military recruiters for purposes of
military recruiting.
(e) An evaluation to determine whether a covered school has an anti-
ROTC policy covered by paragraph (a)(7) of this section shall be
undertaken when:
(1) A Secretary of a Military Department or designee cannot obtain
permission to establish, maintain, or efficiently operate a unit of the
Senior ROTC; or
(2) Absent a Senior ROTC unit at the covered school, students cannot
obtain permission from a covered school to participate, or are
effectively prevented from participating, in a unit of the Senior ROTC
at another institution of higher education.
Sec. 216.5 Responsibilities.
(a) The PDUSD(P&R), under the Under Secretary of Defense for
Personnel and Readiness, shall:
(1) Not later than 45 days after receipt of the information
described in paragraphs (b)(3) and (c)(1) of this section:
(i) Inform the Office of Naval Research (ONR) and the Director,
Defense Finance and Accounting Service that a final determination will
be made so those offices can make appropriate preparations to carry out
their responsibilities should a covered school be determined ineligible
to receive federal funds.
(ii) Make a final determination under 10 U.S.C. 983, as implemented
by this part, and notify any affected school of that determination and
its basis, and that the school is therefore ineligible to receive
covered funds as a result of that determination.
(iii) Disseminate to Federal entities affected by the decision,
including the DoD Components and the GSA, and to the Secretary of
Education and the head of each other department and agency the funds of
which are subject to the determination, the names of the affected
institutions identified under paragraph (a)(1)(ii) of this section.
(iv) Notify the Committees on Armed Services of the Senate and the
House of Representatives of the affected institutions identified under
paragraph (a)(1)(ii) of this section.
(v) Inform the affected school identified under paragraph (a)(1)(ii)
of this section that its funding eligibility may be restored if the
school provides sufficient new information that the basis for the
determination under paragraph (a)(1)(ii) of this section no longer
exists.
(2) Not later than 45 days after receipt of a covered school's
request to restore its eligibility:
(i) Determine whether the funding status of the covered school
should be changed, and notify the applicable school of that
determination.
(ii) Notify the parties reflected in paragraphs (a)(1)(i),
(a)(1)(iii), and (a)(1)(iv) of this section when a determination of
funding ineligibility (paragraph (a)(1)(ii) of this section) has been
rescinded.
(3) Publish in the Federal Register each determination of the
PDUSD(P&R) that a covered school is ineligible for contracts and grants
made under 10 U.S.C. 983, as implemented by this part.
(4) Publish in the Federal Register at least once every 6 months a
list of covered schools that are ineligible for contracts and grants by
reason of a determination of the Secretary of Defense under 10 U.S.C.
983, as implemented by this part.
[[Page 427]]
(5) Enter information into the Excluded Parties List System \1\
about each covered school that the PDUSD(P&R) determines to be
ineligible for contracts and grants under 10 U.S.C. 983 and/or this
part, generally within 5 days of making the determination.
---------------------------------------------------------------------------
\1\ The Excluded Parties List System (EPLS) is the system that the
General Services Administration maintains for Executive Branch agencies,
with names and other pertinent information of persons who are debarred,
suspended, or otherwise ineligible for Federal procurement and/or
covered non-procurement transactions.
---------------------------------------------------------------------------
(6) Provide ONR with an updated list of the names of institutions
identified under paragraph (a)(1)(ii) of this section whenever the list
changes due to an institution being added to or dropped from the list,
so that ONR can carry out its responsibilities for post-award
administration of DoD Components' contracts and grants with institutions
of higher education.
(7) Provide the Office of the Deputy Chief Financial Officer, DoD,
and the Director, Defense Finance and Accounting Service with an updated
list of the names of institutions identified under paragraph (a)(1)(ii)
of this section whenever the list changes due to an institution being
added or dropped from the list, so those offices can carry out their
responsibilities related to cessation of payments of prior contract and
grant obligations to institutions of higher education that are on the
list.
(8) Publish in the Federal Register the list of names of affected
institutions that have changed their policies or practices such that
they are determined no longer to be in violation of 10 U.S.C. 983 and
this part.
(b) The Secretaries of the Military Departments and the Secretary of
Homeland Security shall:
(1) Identify covered schools that, by policy or practice, prohibit,
or in effect prevent, the same access to campuses or access to students
on campuses provided to nonmilitary recruiters, or access to student-
recruiting information by military recruiters for military recruiting
purposes.
(i) When requests by military recruiters to schedule recruiting
visits are unsuccessful, the Military Service concerned, and the Office
of the Secretary of Homeland Security when the Coast Guard is operating
as a service in the Department of Homeland Security, shall seek written
confirmation of the school's present policy from the head of the school
through a letter of inquiry. A letter similar to that shown in Appendix
A of this part shall be used, but it should be tailored to the situation
presented. If written confirmation cannot be obtained, oral policy
statements or attempts to obtain such statements from an appropriate
official of the school shall be documented. A copy of the documentation
shall be provided to the covered school, which shall be informed of its
opportunity to forward clarifying comments within 30 days to accompany
the submission to the PDUSD(P&R).
(ii) When a request for student-recruiting information is not
fulfilled within a reasonable period, normally 30 days, a letter similar
to that shown in Appendix A shall be used to communicate the problem to
the school, and the inquiry shall be managed as described in Sec.
216.5.(b)(1)(ii). Schools may stipulate that requests for student-
recruiting information be in writing.
(2) Identify covered schools that, by policy or practice, deny
establishment, maintenance, or efficient operation of a unit of the
Senior ROTC, or deny students permission to participate, or effectively
prevent students from participating in a unit of the Senior ROTC at
another institution of higher education. The Military Service concerned,
and the Office of the Secretary of Homeland Security when the Coast
Guard is operating as a service in the Department of Homeland Security,
shall seek written confirmation of the school's policy from the head of
the school through a letter of inquiry. A letter similar to that shown
in Appendix B of this part shall be used, but it should be tailored to
the situation presented. If written confirmation cannot be obtained,
oral policy statements or attempts to obtain such statements from an
appropriate official of the school shall be documented. A copy of the
documentation shall be provided to the covered school, which shall be
informed of its opportunity to forward clarifying comments within 30
days to
[[Page 428]]
accompany the submission to the PDUSD(P&R).
(3) Evaluate responses to the letter of inquiry, and other such
evidence obtained in accordance with this part, and submit to the
PDUSD(P&R) the names and addresses of covered schools that are believed
to be in violation of policies established in Sec. 216.4. Full
documentation shall be furnished to the PDUSD(P&R) for each such covered
school, including the school's formal response to the letter of inquiry,
documentation of any oral response, or evidence showing that attempts
were made to obtain either written confirmation or an oral statement of
the school's policies.
(c) The Heads of the DoD Components and Secretary of Homeland
Security shall:
(1) Provide the PDUSD(P&R) with the names and addresses of covered
schools identified as a result of evaluation(s) required under Sec.
216.4(d) and (e).
(2) Take immediate action to deny obligations of covered funds to
covered schools identified under paragraph (a)(1)(ii) of this section,
and to restore eligibility of covered schools identified under paragraph
(a)(2) of this section.
Sec. 216.6 Information requirements.
The information requirements identified at Sec. 216.5(b) and (c)(1)
have been assigned Report Control Symbol DD-P&R-(AR)-2038 in accordance
with DoD 8910.1-M \2\.
---------------------------------------------------------------------------
\2\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
Sec. Appendix A to Part 216--Military Recruiting Sample Letter of
Inquiry
(Tailor letter to situation presented)
Dr. John Doe,
President, ABC University, Anywhere, USA 12345-9876.
Dear Dr. Doe: I understand that military recruiting personnel [have
been unable to recruit or have been refused student-recruiting
information \3\ at (subelement of) ABC University)] by a policy or
practice of the school. Specifically, military recruiting personnel have
reported [here state policy decisions or practices encountered]. [If
preliminary information coming to the attention of a Military Service
indicates that other Military Services' recruiting representatives have
been similarly informed of the policy or experienced a similar practice
affecting their ability for military recruiting purposes to have the
access or information require, so state.]
---------------------------------------------------------------------------
\3\ Student-recruiting information refers to a student's name,
address, telephone listing, age (or year of birth), level of education
(e.g., freshman, sophomore, or degree awarded for a recent graduate),
and major(s).
---------------------------------------------------------------------------
Current Federal law (10 U.S.C. 983) denies the use of certain
Federal funds through grants or contracts, to include payment on such
contracts or grants previously obligated, (excluding any Federal funding
to an institution of higher education, or to an individual, to be
available solely for student financial assistance, related
administrative costs, or costs associated with attendance) from
appropriations of the Departments of Defense, Transportation, Labor,
Health and Human Services, Education, and related agencies to
institutions of higher education (including any subelements of such
institutions) that have a policy or practice of denying military
recruiting personnel access to campuses or access to students on
campuses, in a manner that is at least equal in quality and scope (as
explained in Sec. 216.3 of Title 32, Code of Federal Regulations, Part
216), as it provides to nonmilitary recruiters, or access to student
recruiting information. Implementing regulations are codified at Title
32, Code of Federal Regulations, Part 216.
This letter provides you an opportunity to clarify your
institution's policy regarding military recruiting on the campus of
[University]. In that regard, I request, within the next 30 days, a
written policy statement of the institution with respect to access to
campus and students by military recruiting personnel. Your response
should highlight any difference between access for military recruiters
and access for recruiting by other potential employers.
Based on this information and any additional facts you can provide,
Department of Defense officials will make a determination as to your
institution's eligibility to receive funds by grant or contract. That
decision may affect eligibility for funding from appropriations of the
Departments of Defense, Transportation, Labor, Health and Human
Services, Education, and related agencies. Should it be determined that
[University] as an institution of higher education (or any subelement of
the institution) is in violation of the aforementioned statutes and
regulations, such funding would be stopped, and the institution of
higher education (including any subelements of the institution) would
remain ineligible to receive such funds until and unless the Department
of Defense determines that the institution has ceased the offending
policies and practices.
I regret that this action may have to be taken. Successful
recruiting requires that Department of Defense recruiters have equal
[[Page 429]]
access to students on the campuses of colleges and universities [and
student-recruiting information], and at the same time, have effective
relationships with the officials and student bodies of those
institutions. I hope it will be possible to identify and correct any
policies or practices that inhibit military recruiting at your school.
[My representative, (name), is] [I am] available to answer any of your
questions by telephone at [telephone number]. I look forward to your
reply.
Sincerely,
Sec. Appendix B to Part 216--ROTC Sample Letter of Inquiry
(Tailor letter to situation presented)
Dr. Jane Smith,
President, ABC University, Anywhere, USA 12345-9876.
Dear Dr. Smith: I understand that ABC University has [refused a
request from a Military Department to establish a Senior ROTC unit at
your institution] [refused to continue existing ROTC programs at your
institution][prevented students from participation at a Senior ROTC
program at another institution] by a policy or practice of the
University.
Current Federal law (10 U.S.C. 983) denies the use of certain
Federal funds through grants or contracts, to include payment on such
contracts or grants previously obligated, (excluding any Federal funding
to an institution of higher education, or to an individual, to be
available solely for student financial assistance, related
administrative costs, or costs associated with attendance) from
appropriations of the Departments of Defense, Transportation, Labor,
Health and Human Services, Education, and related agencies to
institutions of higher education (including any subelements of such
institutions) that have a policy or practice of prohibiting or
preventing the Secretary of Defense from maintaining, establishing, or
efficiently operating a Senior ROTC unit. Implementing regulations are
codified at Title 32, Code of Federal Regulations, Part 216.
This letter provides you an opportunity to clarify your
institution's policy regarding ROTC access on the campus of ABC
University. In that regard, I request, within the next 30 days, a
written statement of the institution with respect to [define the problem
area(s)].
Based on this information, Department of Defense officials will make
a determination as to your institution's eligibility to receive the
above-referenced funds by grant or contract. That decision may affect
eligibility for funding from appropriations of the Departments of
Defense, Transportation, Labor, Health and Human Services, Education,
and related agencies. Should it be determined that [University] as an
institution of higher education (or any subelement of the institution)
is in violation of the aforementioned statutes and regulations, such
funding would be stopped, and the institution of higher education
(including any subelements of the institution) would remain ineligible
to receive such funds until and unless the Department of Defense
determines that the institution has ceased the offending policies and
practices.
I regret that this action may have to be taken. Successful officer
procurement requires that the Department of Defense maintain a strong
ROTC program. I hope it will be possible to [define the correction to
the aforementioned problem area(s)]. [My representative, (name), is] [I
am] available to answer any of your questions by telephone at [telephone
number]. I look forward to your reply.
Sincerely,
PART 217_SERVICE ACADEMIES--Table of Contents
Sec.
217.1 Purpose.
217.2 Applicability.
217.3 Definitions.
217.4 Policy.
217.5 Responsibilities.
217.6 Procedures.
Appendix A to Part 217--Applicant Briefing Item on Separation Policy
Authority: 10 U.S.C. Chapters 403, 603, and 903.
Source: 80 FR 81760, Dec. 31, 2015, unless otherwise noted.
Sec. 217.1 Purpose.
This part establishes policy, assigns responsibilities, and
prescribes procedures for DoD oversight of the Service academies
(referred to in this part as ``the academies'').
Sec. 217.2 Applicability.
This part applies to Office of the Secretary of Defense, the
Military Departments, the Office of the Chairman of the Joint Chiefs of
Staff and the Joint Staff, the combatant commands, the Office of the
Inspector General of the Department of Defense (IG DoD), the Defense
Agencies, the DoD Field Activities, and all other organizational
entities within the DoD (referred to collectively in this part as the
``DoD Components'').
Sec. 217.3 Definitions.
These terms and their definitions are for the purposes of this part.
[[Page 430]]
Academic year. The time period beginning the first day of the fall
semester and ending on the last day of the spring semester.
Academy(ies). The U.S. Military, the U.S. Naval, and the U.S. Air
Force Academy.
Academy preparatory schools. Postsecondary educational institutions
operated by each of the Military Departments to provide enhanced
opportunities for selected candidates to be appointed to the academies.
Active duty lists. A single list of certain officers serving on
active duty. Officers are carried on the active duty list of the
Military Service of which they are members in order of seniority. (See
10 U.S.C. 620 for additional information.)
Active duty service obligation. A commitment of active military
service for a specified period of time.
Agreement. The agreement signed by a U.S. cadet or midshipman in
accordance with 10 U.S.C. 2005, 4348(a), 6959(a), or 9348(a).
Appointment. U.S. applicants who are selected for admission to the
academies are appointed by the President as cadets or midshipmen. Those
U.S. cadets and midshipmen who complete the course of instruction at an
academy may be appointed as a commissioned officer in a Military
Service. Foreign students admitted to the academies for a course of
study pursuant to 10 U.S.C. chapters 403, 603, and 903 and this part,
are not formally appointed as cadets or midshipmen.
Boards of Visitors. Boards that visit the academies annually and
provide a report to the President of their views and recommendations
about the academies. 10 U.S.C. chapters 403, 603, and 903 define the
composition and purpose of those boards.
Cadets and midshipmen. U.S. citizens having been appointed to one of
the academies and having taken the oath as cadets or midshipmen.
Although not eligible for a formal appointment, foreign students
admitted to the academies for a course of study will be called cadets
and midshipmen and will be accountable to policies and procedures that
govern attendance and will receive all emoluments commensurate with a
U.S. citizen cadet or midshipman. Foreign students will not take the
oath of office, are at no time considered to be serving on active duty
in the Military Services, and will not be eligible for nor offered a
commission in a Military Service upon satisfactory completion of their
academy course of study nor be eligible to be called to active duty if
disenrolled.
Cost of education. Those costs attributable directly to educating a
person at an academy under regulations prescribed by the Secretary of
the Military Department concerned and approved by the Assistant
Secretary of Defense for Manpower and Reserve Affairs (ASD(M&RA)) and
Under Secretary of Defense (Comptroller)/Chief Financial Officer
(USD(C)/CFO). Such costs include a reasonable charge for the provided
education, books, supplies, room, board, transportation, and other
miscellaneous items furnished at government expense. Excluded are the
costs for cadet or midshipman pay and allowances in accordance with 37
U.S.C. 203, uniforms, military training, and support for nonacademic
military operations.
Dependency. Any person for whom an individual has a legally
recognized obligation to provide support, including but not limited to
spouse and natural, adoptive, or stepchildren.
Disenrollment. The voluntary or involuntary termination of a cadet
or midshipman from one of the academies.
Excess leave. Leave granted that exceeds accrued and advance leave
and for which the Service member is not entitled to pay and allowances.
Generally, a negative leave balance at the time of release from active
military duty, discharge, first extension of an enlistment, desertion,
or death shall be considered excess leave regardless of the authority
under which the leave resulting in the negative balance was granted.
Hazing. Any unauthorized assumption of authority by a cadet or
midshipman whereby another cadet or midshipman suffers or is exposed to
any cruelty, indignity, humiliation, oppression, or the deprivation or
abridgment of any right. The Secretaries of the Military Departments or
academy superintendents may issue regulations
[[Page 431]]
that augment this definition to amplify or clarify local guidelines.
Honor code (concept). A prescribed standard of ethical behavior
applicable to cadets or midshipmen, as determined by the Secretary of
the Military Department concerned.
Military service obligation. A commitment of military service for a
specified period of time.
Sec. 217.4 Policy.
It is DoD policy, pursuant to 10 U.S.C. chapters 403, 603, and 903
and consistent with this part, that:
(a) The academies provide, each year, newly commissioned officers to
each Service that have been immersed in the history, traditions, and
professional values of the Military Services and developed to be leaders
of character, dedicated to a career of professional excellence in
service to the Nation.
(b) The accession of those officers generates a core group of
innovative leaders capable of thinking critically who will exert
positive peer influence to convey and sustain these traditions,
attitudes, values, and beliefs essential to the long-term readiness and
success of the Military Services.
(c) Active duty service is the primary means of reimbursement for
education.
(d) Cadets and midshipmen disenrolling or those disenrolled after
the beginning of the third academic year from a Service academy normally
will be called to active duty in enlisted status, if fit for service.
Sec. 217.5 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)):
(1) Serves as the DoD focal point for matters affecting the
academies.
(2) Provides DoD oversight and management of the academies.
(b) Under the authority, direction, and control of the USD(P&R), the
ASD(M&RA):
(1) Serves as the OUSD(P&R) focal point for matters affecting the
academies and resolves matters of conflict that may arise among the
Military Departments.
(2) Assesses and monitors academy operations to ensure cost-
effective employment of resources in the accomplishment of the
academies' mission.
(3) Develops policy and provides guidance for DoD oversight and
management of the academies.
(4) Develops overall DoD policy and provides guidance for the
conduct and administration of a uniform academy disenrollment policy.
(5) Approves or disapproves requests to exceed the foreign student
limitation from a single country provision in Sec. 217.6(d)(2).
(6) Approves or disapproves requests to release a cadet or
midshipman prior to the completion of 2 years of active service.
(c) Under the authority, direction, and control of the USD(P&R), the
Assistant Secretary of Defense for Health Affairs (ASD(HA)) establishes
medical standards for applicants to the academies that are applied
through the DoD Medical Examination Review Board, according to DoD
Directive 5154.25E, ``DoD Medical Examination Review Board'' (available
at http://www.dtic.mil/whs/directives/corres/pdf/515425e.pdf).
(d) The Under Secretary of Defense for Policy (USD(P)):
(1) Oversees the management of admission vacancies for foreign
students.
(2) Designates countries from which foreign students may be
selected.
(3) Issues implementing guidance as necessary, including waiver of
tuition or fees reimbursement either wholly or partially for management
of admission vacancies for foreign students.
(e) The USD(C)/CFO establishes and publishes the tuition rate for
foreign students.
(f) Under the authority, direction, and control of the USD(C)/CFO
and with the coordination of the superintendents of the academies, the
Director, Defense Finance and Accounting Service (DFAS), is responsible
for billing and collecting reimbursements due to the academies for
foreign students, except when those reimbursements have been waived by
the USD(P).
(g) The IG DoD evaluates programs, as set forth in DoD Directive
5106.01, ``Inspector General of the Department of Defense'' (available
at http://www.dtic.mil/whs/directives/corres/pdf/510601p.pdf) and 5
U.S.C. Appendix (also
[[Page 432]]
known as and referred to in this part as the ``Inspector General Act of
1978,'' as amended).
(h) The Secretaries of the Military Departments:
(1) Establish and maintain a military academy pursuant to 10 U.S.C.
chapters 33, 47, 61, 403, 603, and 903 and 10 U.S.C. 702 and 2005 and
this part. 10 U.S.C. chapter 47 is also known and referred to in this
part as ``The Uniform Code of Military Justice (UCMJ),'' as amended.
(2) Ensure appropriate oversight and management of the academies.
(3) Develop quantified performance goals and measures, linked with
the schools' mission statements to annually evaluate the performance of
the academies and preparatory schools.
(4) Prescribe a written agreement when providing an academy
appointment to U.S. candidates who agree to conditions in Sec. 217.6(f)
and are otherwise qualified.
(5) Prescribe regulations on:
(i) A breach of a cadet's or midshipman's ``agreement to serve'' for
the purpose of ordering that individual to active duty.
(ii) Procedures for determining whether such a breach has occurred.
(iii) Standards for determining the period of time for which a
person may be ordered to serve on active duty according to Sec.
217.6(j). (See also 10 U.S.C. 4348(c), 6959(c), and 9348(c).
(6) Work with the Director, DFAS, to establish and maintain jointly
developed, uniform accounting procedures for determining the cost of
education at their respective academies. These procedures must be
consistent with Chapter 6 of Volume 11A of DoD 7000.14-R, ``Department
of Defense Financial Management Regulation'' (available at http://
comptroller.defense.gov/Portals/45/documents/fmr/Volume_11a.pdf) and DoD
Instruction 5010.40, ``Managers' Internal Control (MIC) Program
Procedures'' (available at http://www.dtic.mil/whs/directives/corres/
pdf/501040p.pdf). A standard method for computing reimbursement of the
cost of education will be in these procedures and accounts receivable
will be recorded as follows:
(i) Establish an accounts receivable for the cost of education when
a cadet or midshipman disenrolls or is disenrolled from an academy.
(ii) Reduce the accounts receivable proportionately to the period of
active duty served by the disenrolled cadets or midshipmen.
(7) Prescribe the repayment procedures of an individual's
outstanding debt so that the total amount due--based on 37 U.S.C. 303a,
monthly repayment schedules, repayment method, and other information--
clearly will be explained in writing to the debtor.
(8) Ensure that proper credit management and debt collection
procedures are followed pursuant to chapters 28-32 of Volume 5, and
chapters 38 and 50 of Volume 7A of DoD 7000.14-R (available at http://
comptroller.defense.gov/Portals/45/documents/fmr/Volume_05.pdf and
http://comptroller.defense.gov/Portals/45/documents/fmr/Volume_07a.pdf),
to include prescribing repayment procedures of an individual's
outstanding academy financial obligation.
(9) Develop an organizational capability to collect, maintain, and
submit information on resources in support of an academy, the academy
preparatory school, and any other associated training programs.
Sec. 217.6 Procedures.
(a) Academies. Academies are 4-year educational institutions
operated by each of the Military Departments to provide successful
candidates with degrees of Bachelor of Science and commissions as
military officers. The core of the academies' mission statements will be
to educate, train, and inspire men and women to become officers in the
Military Services to serve the United States.
(b) Organization of the academies. (1) There will be at each academy
a superintendent and Commandant appointed by the President, a dean of
the faculty, chaplain, permanent professors, an athletic director, and a
director of admissions. The Secretaries of the Military Departments may
employ as many civilian faculty members as considered necessary.
(2) Incumbents of dean, director of admissions, and permanent
professorships held by military personnel will be appointed by the
President of the United States by and with the advice
[[Page 433]]
and consent of the Senate. The superintendent and the commandant will be
detailed to those positions by the President.
(3) The immediate governance of the academies is by their
superintendents, who also will serve as the commanding officers of the
academies and their military posts.
(4) The superintendent is responsible for the day-to-day operation
of the academy as well as the welfare of cadets or midshipmen and staff.
(5) The dean of the faculty of the academy directs and manages the
development and execution of an undergraduate curriculum that recognizes
the requirement for graduates to understand technology, while gaining a
sound historical perspective and an understanding of different cultures.
The curriculum will be broadly based in the physical and social
sciences, the study of languages and cultures in areas in which the DoD
is engaged, and the arts and humanities.
(6) The commandant directs and manages military education and
training programs and exercises command over cadets or midshipmen, as
established by law and determined by the superintendent.
(7) The director of athletics directs and manages the
intercollegiate athletic programs and other physical fitness programs,
as determined by the superintendent. Intercollegiate athletic programs
will be in full compliance with all applicable National Collegiate
Athletics Association rules and requirements while maintaining the
professional and ethical values of the Services.
(8) The academic faculty will consist of civilian and military
members in proportions determined by the Secretary of the Military
Department concerned. Faculty members will possess a mix of operational
experience, academic expertise, and teaching ability. They:
(i) Exemplify the highest standards of ethical and moral conduct and
performance established by the Secretaries of the Military Departments
concerned, and the superintendents concerned, consistent with this part.
(ii) Participate in the full spectrum of academy programs and
activities and the development of their curriculum.
(iii) Actively participate in the professional, moral, and ethical
development of cadets and midshipmen as role models, mentors, and
through the enforcement of standards of behavior and conduct.
(9) Service members will conduct themselves in accordance with the
requirement of exemplary conduct as specified in 10 U.S.C. 3583, 5947,
and 8583.
(10) The superintendent will ensure that noninstructional staff
consists of the minimum number of people consistent with effective
achievement of the objectives of the academy and its military post.
(11) Compensation and benefits for civilian faculty members will be
sufficiently competitive to achieve academic excellence at pay levels
determined by the Secretary of the Military Department concerned.
(12) Additional guidance about organization of the academies is in
10 U.S.C. chapters 403, 603, and 903.
(c) Nomination and appointment of cadets and midshipmen. (1)
Nomination, appointment, admission, authorized strength, and allocation
of strength among nominating authorities for cadets and midshipmen are
prescribed in 10 U.S.C. chapters 403, 603, and 903 and this part.
(2) U.S. cadets and midshipmen will be appointed by the President
alone. An appointment is conditional until the cadet or midshipman is
admitted.
(3) Appointments will be offered on a competitive basis to nominated
candidates having the strongest potential for success as cadets or
midshipmen, and ultimately as commissioned officers. The nominating
sources will be notified of candidates selected for appointment.
(4) Those selected for appointment must have demonstrated, through
evaluations prescribed by the Secretary of the Military Department
concerned:
(i) High standards of moral character, personal conduct, and
integrity.
(ii) The potential to successfully complete the program of
instruction.
(iii) An acceptable level of physical fitness.
[[Page 434]]
(iv) Medical qualification for appointments to the academies and for
commissioning as required in 10 U.S.C. chapter 33 and further delineated
through examination procedures defined in DoD Directive 5154.25E and
medical standards defined in DoD Instruction 6130.03, ``Physical
Standards for Appointment, Enlistment, or Induction in the Military
Services'' (available at http://www.dtic.mil/whs/directives/corres/pdf/
613003p.pdf), DoD Instruction 6485.01, ``Human Immunodeficiency Virus in
Military Service Members'' (available at http://www.dtic.mil/whs/
directives/corres/pdf/648501p.pdf), and DoD Instruction 1010.16,
``Technical Procedures for the Military Personnel Drug Abuse Testing
Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/
101016p.pdf).
(5) Specific eligibility criteria also guide selection:
(i) Age. Applicants must be at least 17 years of age, and not have
passed their 23rd birthday on July 1 of the year of entry into an
academy.
(ii) Citizenship. Except for foreigners admitted to the academies
under 10 U.S.C. chapters 403, 603, and 903 and this part, those
appointed must be citizens or nationals of the United States.
(iii) Residence. If nominated by an authority designated in the
``Congressional'' and ``U.S. Possession'' categories as defined in 10
U.S.C. chapters 403, 603, and 903, applicants must be domiciled in the
constituency of such authorities.
(iv) Dependents. Those appointed as cadets or midshipmen must not
have dependents.
(v) Marital Status. Those appointed as cadets or midshipmen cannot
have a spouse.
(6) The academies will work to ensure timely medical evaluations of
applicants. Issues relating to the administrative management of those
evaluations that are not resolved to the satisfaction of the academies
and the activity performing the evaluation will be forwarded to the
ASD(M&RA) for resolution.
(7) To be admitted to an academy, U.S. appointees must take and
subscribe to an oath prescribed by law or by the Secretary of the
Military Department concerned. If a U.S. candidate for admission refuses
to take and subscribe to the prescribed oath, the appointment is
terminated.
(d) Cadets and midshipmen from foreign countries. (1) Foreign
students may receive instruction at an academy; the number may not
exceed the limits in 10 U.S.C. chapters 403, 603, and 903. Such
instruction will be on a reimbursable basis. The USD(P) designates the
countries from which candidates may be selected, and may waive
reimbursement, either wholly or partially.
(i) Although not eligible for a formal appointment, foreign students
admitted to the academies for a course of study will be called cadets
and midshipmen, will be accountable to policies and procedures that
govern attendance, and are entitled to the equivalent pay and allowances
of a cadet or midshipmen appointed from the United States, and from the
same appropriation.
(ii) Foreign students will not take the oath addressed in paragraph
(c)(7) of this section, are at no time considered to be serving in any
status in the Military Services, and will not be eligible for nor
offered a commission in the Military Services upon satisfactory
completion of their academy course of study nor eligible to be called to
active duty if disenrolled.
(2) Not more than three foreign students from a single country may
be enrolled at a single academy without ASD(M&RA) approval. Requests for
such approval will be submitted by the Secretary of the Military
Department concerned, through the USD(P) to the ASD(M&RA). The
enrollment restriction does not apply to students participating in
exchange programs of up to two semesters' duration.
(3) By the end of May of each year, the USD(C)/CFO will establish
the tuition rate for the succeeding school year and publish that rate to
the Secretaries of the Military Departments, the USD(P), and the
ASD(M&RA).
(4) By the end of June of each year, the USD(P) will publish a list
of countries eligible to send students to the academies during the
subsequent academic year, specifying reimbursement requirements. That
list will be provided to the Secretaries of the Military Departments,
the ASD(M&RA), and the
[[Page 435]]
responsible U.S. Defense Attach[eacute] Offices (USDAOs) or the American
embassies, if no servicing USDAO exists.
(5) By the end of August of each year, the superintendent of each
academy will extend application invitations, through applicable USDAOs
(or the American embassies), to each eligible country. Those invitations
will describe admissions procedures and define the country's official
sponsorship responsibilities.
(6) The superintendent will manage the selection and notification of
candidates and, with the assistance of the applicable USDAO or American
embassy, obtain written acknowledgment from the sending government of
sponsorship responsibilities and their agreement to reimburse tuition
costs, when applicable.
(7) Questions on enrollment or reimbursement will be forwarded to
the ASD(M&RA), for resolution with the USD(P).
(e) Development of cadets and midshipmen. (1) Development of cadets
and midshipmen is prescribed in 10 U.S.C. chapters 403, 603, and 903 and
this part.
(2) The normal course of instruction at an academy is 4 years, with
selected promising cadets or midshipmen pursuing longer terms when
required to meet academy educational or other graduation requirements.
The Secretaries of the Military Departments will arrange the course of
instruction so that cadets or midshipmen are not required to attend
classes on Sunday.
(3) Besides academic preparation, each academy will provide for
development of military and leadership skills and physical fitness.
(4) The practice of hazing is prohibited by Department policy and
law (see 10 U.S.C. 4352, 6964, and 9352).
(5) An important component in the growth of cadets or midshipmen is
the leadership development system. Its purpose is to motivate graduates
to seek leadership responsibilities and enable them to think clearly,
decide wisely, and act decisively under pressure and in a variety of
leadership situations. The leadership development system will be based
on:
(i) Positive leadership, equal opportunity, and respect for one
another's values, beliefs, and personal dignity.
(ii) Elimination of dysfunctional stress. The Secretaries of the
Military Departments concerned and superintendents determine knowledge
requirements and procedures for the development and indoctrination of
cadets and midshipmen. Memorization of trivia, such as complete menus
for meals, is generally inappropriate. Establishment of such
requirements will be closely monitored by the academies.
(iii) Emphasis on proper bearing, fitness, and posture. These are
important to effective leadership and contribute to overall well-being.
Exaggerated forms of posture, speech, or movement generally do not
constitute proper military bearing. Establishment of such requirements
will be closely monitored by the academies and used only with the
knowledge and approval of the superintendents.
(iv) Positive role models; opportunities to learn, practice, and
receive feedback; and access to support. Direct support to leadership
development will be provided by concurrent and relevant coursework,
athletic competition, and hands-on experience to show the relationship
between theories of leadership in the classroom and practice of
leadership outside the classroom.
(6) The highest ethical and moral standards are expected of the
officer corps. The honor systems of the academies will support that
expectation by enforcing adherence to standards of behavior embodied in
the honor codes or concepts of the academies. Violations of honor
standards may constitute a basis for disenrollment.
(f) Management of cadets and midshipmen. (1) A U.S. cadet or
midshipman entering an academy directly from civilian status assumes a
Military Service obligation (MSO) of 8 years, under 10 U.S.C. 651 and
DoD Instruction 1304.25, ``Fulfilling the Military Service Obligation''
(available at http://www.dtic.mil/whs/directives/corres/pdf/
130425p.pdf).
(2) Cadet and midshipman pay is prescribed by 37 U.S.C. 203(c).
(3) Cadets and midshipmen will meet medical accession standards
outlined in paragraph (c)(4)(iv) of this section.
(4) As a condition for providing education at an academy, the
Secretary of the Military Department concerned
[[Page 436]]
will require that each U.S. cadet or midshipman enter into a written
agreement in which he or she agrees:
(i) To complete the course of instruction for graduation specified
in the agreement to accept an appointment as a commissioned officer, if
tendered, and to serve on active duty for a period specified in the
agreement if called to active duty or, at the option of the Secretary of
the Military Department concerned, to reimburse the United States for
the amount specified by the Secretary of Military Department concerned,
as prescribed in this section.
(ii) That if such cadet or midshipman fails to complete the
educational requirements specified in the agreement, such person, if so
ordered by the Secretary of the Military Department concerned, will
serve on active duty for a period specified in the agreement.
(iii) That if such person fails to complete the period of active
duty specified in the agreement, he or she will reimburse the United
States for the amount specified by the Secretary of the Military
Department concerned in accordance with the requirements of 10 U.S.C.
2005 and 37 U.S.C. 303a.
(iv) To such other terms and conditions as the Secretary of the
Military Department concerned may prescribe to protect U.S. interests.
(5) An obligation to repay the United States under this section is,
for all purposes, a debt owed the United States. A discharge in
bankruptcy under Title 11 U.S.C. does not discharge a person from such
debt if the discharge order is entered less than 5 years after:
(i) The date of the termination of the agreement or contract on
which the debt is based; or
(ii) In the absence of such agreement or contract, the date of the
termination of the service on which the debt is based.
(6) The sustainment of high performance standards ensures that
cadets and midshipmen who are unwilling or unable to successfully
complete the program of instruction at the academy are identified
quickly. As defined by the Military Department concerned, cadets or
midshipmen who are identified as ``deficient'' in conduct, studies, or
physical fitness, and disenrolled from any academy may not, unless
recommended by an academic or academy board, be returned or reappointed
to an academy. Those cadets or midshipmen selected for return will be
reappointed consistent with the criteria prescribed by the board.
(i) Individuals failing to complete the required course of academy
instruction (including disenrollment for academics, conduct, honor code
violations, or physical deficiency) will be disenrolled.
(ii) If an appointment is terminated before graduation due to a U.S.
cadet's or midshipman's breaching his or her agreement, or if a U.S.
cadet or midshipman refuses to accept a commission following graduation,
the 8 year MSO will be fulfilled by the period for which the member is
ordered to serve on active duty or in the Reserve Component in an
applicable enlisted status. He or she may be ordered to active duty for
a period not to exceed 4 years under 10 U.S.C. 4348(b), 6959(b), or
9348(b). Policies that apply to U.S. cadets or midshipmen disenrolled
from an academy who entered the academy directly from civilian status
are:
(A) Fourth and Third Classmen (First and Second Years). A fourth or
third classman disenrolled will retain their MSO in accordance with 10
U.S.C. chapter 47 and DoD Instruction 1304.25 but have no active duty
service obligation (ADSO).
(B) Second Classmen (Third Year). A second classman resigning before
the start of the second class academic year or disenrolled for cause
resulting from actions that occurred only before the start of the second
class academic year will be discharged as if he or she were a third
classman.
(C) Second or First Classmen (Third and Fourth or Subsequent Years).
Any second or first classman who is disenrolled and who is not suited
for enlisted Military Service for reasons of demonstrated unsuitability,
unfitness, or physical disqualification, will be discharged in
accordance with the current Military Service regulations that implement
this part, to include monetary recoupment. Other second or first class
cadets and midshipmen disenrolled after the beginning of the second
class academic year, but before completing the course of instruction,
may be
[[Page 437]]
transferred to the Reserve Component in an enlisted status and ordered
to active duty for not less than 2 years, but not more than 4 years and
incur an MSO, in accordance with 10 U.S.C. 4348(b), 6959(b), or 9348(b).
(D) First Classman (Declining Appointment). Any first classman
completing the course of instruction and declining to accept an
appointment as a commissioned officer may be transferred to the
respective Reserve Component in an enlisted status and ordered to active
duty for 4 years and incurs a MSO in accordance with 10 U.S.C. 4348(b),
6959(b), and 9348(b) and DoD Directive 1235.10, ``Activation,
Mobilization, and Demobilization of the Ready Reserve'' (available at
http://www.dtic.mil/whs/directives/corres/pdf/123510p.pdf).
(iii) The disposition of cadets and midshipmen entering an academy
from the Regular or Reserve Component of any Military Service (except
those who enter an academy by way of its preparatory school from
civilian status) and then not completing the program will be determined
in accordance with 10 U.S.C. 516:
(A) Fourth and Third Classmen (First and Second Years). If
disenrolled during the fourth or third class year, the cadet's or
midshipman's Military Service commitment will be equal to the time not
served on the original enlistment contract, with all service as a cadet
or midshipman counted as service under that contract. Those individuals
with less than 1 year remaining in the original enlistment contract may
be discharged on approval of the disenrollment by the Military
Department concerned.
(B) Second Classmen (Third Year). If disenrolled before the
beginning of the second class academic year, the cadet's or midshipman's
Military Service commitment will be the same as in paragraph
(f)(6)(iii)(C) of this section.
(C) Second or First Classmen (Third and Fourth or Subsequent Years).
If first and second classmen are disenrolled for issues occurring after
the beginning of the second class academic year, their Military Service
commitment will be the same as in paragraphs (f)(6)(ii)(C) and (D) of
this section, as appropriate, or will be equal to the time not served on
the original enlistment contract (with all service as a cadet or
midshipman counted as service under that contract), whichever period is
longer.
(D) Disenrolled Cadets or Midshipmen not Suited for Enlisted
Military Service. A cadet or midshipman who entered into an academy from
the Regular or Reserve Component of a Military Service who is
subsequently disenrolled from an academy and is not suited for enlisted
Military Service because of demonstrated unsuitability, unfitness, or
physical disqualification, will be discharged in accordance with DoD
Instruction 1332.14, ``Enlisted Administrative Separations'' (available
at http://www.dtic.mil/whs/directives/corres/pdf/133214p.pdf) and
Military Department regulations that specifically address the
disenrollment of cadets or midshipmen.
(E) Military Grade of Disenrolled Cadets or Midshipmen Transferred
to the Reserve Component or Active Duty. Whether transferred to the
Reserve Component or reverted back to active duty status, the
disenrolled cadets and midshipmen retain their prior enlisted grade.
However, in no case will the cadet or midshipman be transferred to the
Reserve Component in a grade lower than would a similarly situated cadet
or midshipman who entered the academy from a civilian status.
(iv) The disposition of U.S. cadets and midshipmen entering an
academy by way of its preparatory school from civilian status and then
not completing the program will be managed in accordance with paragraph
(f)(6)(ii) through (iv) of this section.
(v) A cadet or midshipman tendering a resignation will be required
to state a reason for this action. A resignation may be accepted when in
the interest of the Military Service. Accepting the resignation will not
in and of itself constitute a determination of the U.S. cadet's or
midshipman's qualification for enlisted Military Service.
(vi) U.S. cadets or midshipmen who are not ordered to active duty
due to their misconduct or unsuitability, or because their petition for
relief from an active duty obligation was approved by the Secretary of
the Military Department concerned, must reimburse
[[Page 438]]
the United States in accordance with the requirements of 10 U.S.C. 2005
and 37 U.S.C. 303a for education costs commensurate with time spent at
the academy. The Secretary of the Military Department concerned may
remit or cancel any part of the indebtedness of a cadet or midshipman to
the United States. There may be circumstances when neither Active Duty
nor reimbursement is appropriate. The Secretaries of the Military
Departments will carefully review the circumstances to determine whether
waiving Active Duty or reimbursement is consistent with existing
statutory requirements, personnel policies or management objectives,
equity and good conscience, and is in the best interest of the United
States. Such circumstances may include, but are not limited to, a
cadet's or midshipman's death, illness, injury, or other impairment that
is not the result of the cadet's or midshipman's misconduct; or needs of
the Service.
(vii) Change in Status Notification. When a U.S. cadet or midshipman
is disenrolled from an academy and discharged from the Service
concerned, the Selective Service System will be notified by the Military
Department of the individual's status change.
(viii) Dependency Disenrollment or Resignation. U.S. cadets or
midshipman who resign or are disenrolled for violation of the dependency
policy may request transfer to the Reserve Officer Training Corps
(ROTC). Approval and method of transfer is at the discretion of the
Secretary of the Military Departments concerned. Cadets and midshipmen
who are approved to transfer to ROTC, graduate, receive a commission,
and fulfill their Active Duty Service Obligation (ADSO) are not subject
to reimbursement as outlined in this section.
(ix) Disenrollment of cadets and midshipmen for medical
disqualification.
(A) Persons separated for being medically disqualified from further
Military Service will be separated and will not be obligated for further
Military Service or for reimbursing education costs in accordance
paragraph (f)(6)(vi) of this section.
(B) Persons separated for reasons in addition to being medically
disqualified from further Military Service may be obligated for
reimbursing education costs at the discretion of the Military Department
concerned.
(C) Cadets and midshipmen who become medically disqualified for
appointment (including pregnancy) as a commissioned officer during their
senior year, who otherwise would be qualified to complete the course of
instruction and be appointed as a commissioned officer, and who are
capable of completing the academic course of instruction with their
peers, may be permitted by the Secretary of the Military Department
concerned to complete the academic course of instruction with award of
an academic credential determined by the Secretary of the Military
Department concerned.
(D) Pursuant to 10 U.S.C. 1217, when the Secretary of the Military
Department concerned determines that a U.S. cadet or midshipman is
medically disqualified for appointment as a commissioned officer due to
injury, illness, or disease aggravated or incurred in the line of duty
while entitled to cadet or midshipman pay, the Secretary may retire the
cadet or midshipman with retired pay in accordance with 10 U.S.C.
chapter 61.
(g) Graduation and commission. (1) Cadets and midshipmen who
complete all requirements prescribed by the Secretary of the Military
Department concerned for graduation and appointment may be awarded a
bachelor of science degree, and U.S. cadets and midshipmen who meet
medical accession standards outlined in paragraph (c)(4)(iv) of this
section are eligible to be commissioned, in accordance with 10 U.S.C.
chapters 33, 403, 603, and 903.
(2) Graduation leave will be administered in accordance with 10
U.S.C. 702.
(3) Officers appointed from cadet or midshipman status will not be
voluntarily released from active duty principally to pursue a
professional sports activity with the potential of public affairs or
recruiting benefit to the DoD during the initial 2 years of active
commissioned service. A waiver to release a cadet or midshipman prior to
the completion of 2 years of active service must be approved by the
ASD(M&RA). Exceptional personnel with unique talents and abilities may
[[Page 439]]
be authorized excess leave or be released from active duty and
transferred to the Selective Reserve after completing 2 years of active
commissioned service when there is a strong expectation their
professional sports activity will provide the DoD with significant
favorable media exposure likely to enhance national recruiting or public
affairs.
(i) Approval authority and processing requirements. Secretaries of
the Military Departments will establish the approval authority and
specific processing requirements for all requests for excess leave and
early release from active duty under this program.
(ii) Excess leave. Officers may apply for excess leave, after
serving a minimum of 24 months of the current obligated active duty
period, for a period not to exceed 1 year, for the purpose of pursuing a
professional sports activity with potential recruiting or public affairs
benefits to the DoD. The agreement between the individual and the
professional sports team or organization must reflect the intent of both
parties to employ the individual in a way that brings credit to the DoD.
The agreement between the individual and the professional sports team or
organization must reflect the intent of both parties to employ the
individual in a way that brings credit to the DoD. Personnel are not
entitled to pay and allowances while in excess leave status, nor are
they entitled to receive disability retired pay if incurring a physical
disability while in excess leave status. Officers must:
(A) Remain subject to recall to active duty.
(B) Be in good standing, to include meeting all physical fitness
requirements and standards.
(C) Have secured an actual contract or binding commitment with a
professional team or organization guaranteeing the opportunity to pursue
an activity with potential recruiting benefits as described.
(D) Acknowledge that time served in excess leave will not be used to
satisfy an existing ADSO.
(iii) Early release. Officers may request early release from their
ADSO for the purpose of pursuing a professional sports activity with
potential recruiting or public affairs benefits for the DoD. Any
agreement between the individual and the professional sports team or
organization must reflect the intent of both parties to employ the
individual in a way that brings credit to the DoD. Military Departments
will notify the ASD(M&RA) when an officer is released early from active
duty under this program. In addition to any further requirements as
determined appropriate by the Secretary of the Military Department
concerned, applicants for early release must, at a minimum:
(A) Have served 24 months of the original ADSO.
(B) Be in good standing, to include meeting all physical fitness
requirements and standards.
(C) Have secured an actual contract or binding commitment with a
professional sports team or organization guaranteeing the opportunity to
pursue an activity with potential recruiting benefits as described.
(D) Be assigned to a Selected Reserve unit and meet normal retention
requirements based on minimum participation standards in accordance with
10 U.S.C. 10147 and 10148, and be subject to immediate involuntary
recall for any reason to complete the period of active duty from which
early release was granted.
(E) Acknowledge that the officer is subject to monetary repayment of
educational benefits at a prorated share based on the period of
unfulfilled ADSO, and that such recoupment is in addition to the two-
for-one Selected Reserve obligation required in paragraph (g)(3)(iii)(F)
of this section. Officers subject to recoupment under the provisions of
10 U.S.C. 2005 for receipt of advanced education assistance must
reimburse the United States a pro-rata share of the cost of their
advanced education assistance based on the period of unfulfilled active
duty service.
(F) Agree that, in the event that the officer is no longer under a
contract or binding agreement with a professional sports team or
organization, the officer will either return to active duty to complete
the remaining ADSO, or continue in the Selected Reserve for a period of
not less than two times the length of their remaining ADSO, as
determined by their Service.
[[Page 440]]
(4) At the discretion of the Secretary of the Military Department
concerned, first class cadets or midshipmen not medically qualified for
commissioning may be placed on limited duty status, as defined by the
Military Department concerned, for up to 1 year until medical
commissioning requirements of this section and the Military Service are
met. If all requirements are met, the cadet or midshipmen may be
commissioned. If these requirements are not met, the cadet or midshipmen
will be disenrolled subject to recoupment as discussed in paragraph
(f)(6)(ii)(C) and (f)(6)(ix) of this section.
(h) Academy preparatory schools. (1) Academy preparatory schools
provide an avenue for effective transition to the academy environment.
The academy preparatory schools prepare selected candidates for
admission who are judged to need additional preparation in academics,
physical fitness, or character development.
(i) Each school's programs of instruction will focus on academic
preparation and on those areas of personal and physical preparation that
reflect the mission of both the academy and the Service concerned.
(ii) The core of the academy preparatory schools' mission statement
will be ``To motivate, prepare, and evaluate selected candidates in an
academic, military, moral, and physical environment, to perform
successfully at the ___ Academy.''
(2) Faculty members will possess academic expertise and teaching
prowess. They will exemplify high standards of conduct and performance.
Faculty members will be expected to participate in the full spectrum of
the school's programs, to include providing leadership, exemplary
conduct and moral behavior for cadet candidates and midshipmen
candidates to emulate, as well as involvement in the development of
curricular and extracurricular activities. Curriculum design will
recognize academic preparation as the priority; associated programs will
capitalize on economies and efficiencies.
(3) Preparatory school programs will provide tailored individual
instruction to strengthen candidate abilities and to correct
deficiencies in academic areas emphasized by the academies.
Additionally, preparatory school programs will provide supplementary
instruction in military orientation, physical development, athletics,
leadership, character development, and other specific areas of interest
determined by the Secretary of the Military Department concerned.
(i) Review and oversight. (1) Service academies will establish
quantified performance goals and measures, linked with their respective
school's mission statement to annually evaluate the performance of the
academies. Metrics will include graduation rate for enrolled candidates.
The graduation rates of those entering the academies should be at least
75 percent.
(2) Preparatory schools will establish quantified performance goals
and measures, linked with the schools' mission statements to annually
evaluate the performance of the preparatory schools. At a minimum, the
metrics will include:
(i) Academy preparatory school to academy entrance ratio. The ratio
of the number of preparatory school students entering the academy to the
number that entered prep school should be 70 percent or greater.
(ii) Preparatory student and direct appointee graduation rate. The
preparatory school students' academy graduation rate should not drop
more than 5 percent below the direct appointees' graduation rate.
(3) Boards of Visitors of the academies are established and
procedures prescribed by 10 U.S.C. chapters 403, 603, and 903 to inquire
into the efficiency and effectiveness of academy operations. The
designated federal officer for each Board of Visitors will provide the
ASD(M&RA) a copy of each report required by 10 U.S.C. chapter 47 within
60 days of the report's submission to the President.
(4) Oversight by the IG DoD will be provided in accordance with DoD
Directive 5106.01 and the Inspector General Act of 1978. When required,
the ASD(M&RA) recommends to the IG DoD any areas of academy operations
that merit specific review during the subsequent fiscal year.
[[Page 441]]
(5) Annual meetings of the superintendents will be hosted by the
academies on a rotating basis and include the commandants, the deans,
the directors of admissions and athletics, and others designated by the
superintendents. Meeting attendees will discuss performance measures and
other matters of collective interest. Meeting attendees will identify
plans to address areas requiring corrective action. Following the
meeting, the host superintendent will provide the ASD(M&RA) a summary of
issues and actions discussed and each Service academy will provide an
assessment of their respective service academy and preparatory school.
(j) Inter-service commissioning. (1) To be qualified for inter-
Service appointment, applicants must meet all graduation requirements
and all requirements for commissioning in the gaining Service; and both
the gaining and losing Secretaries of the Military Departments concerned
must concur in the appointment. In accordance with 10 U.S.C. chapter 33,
not more than 12.5 percent of a graduating class from any academy may be
commissioned in the Military Services not under the jurisdiction of the
Military Department administering that academy.
(2) Once all requirements for inter-Service appointments have been
met, endorsements from the losing academy will contain the applicants'
current academic transcripts, order of merit standing, record of
physical fitness and, if applicable, results of the gaining Service's
testing for flight training or other qualification. Applications
supported by the losing Military Department will be forwarded to the
gaining Military Department no later than November of the calendar year
before graduation. The gaining Secretary of the Military Department
concerned will act on applications no later than the end of December of
the year prior to commissioning and will immediately notify the losing
Secretary of the Military Department concerned of decisions. Affected
cadets or midshipmen will be quickly notified of the disposition of
applications.
(3) Those selected for transfer will be integrated within active
duty lists of the gaining Military Service. When seniority on that list
relies on academy class standing, they will be initially integrated
immediately following the cadet or midshipman holding equal numerical
class standing at the academy of the gaining Military Department.