[Title 32 CFR 728.33]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter C - PERSONNEL]
[Part 728 - MEDICAL AND DENTAL CARE FOR ELIGIBLE PERSONS AT NAVY MEDICAL DEPARTMENT FACILITIES]
[Subpart D - Retired Members and Dependents of the Uniformed Services]
[Sec. 728.33 - Nonavailability statement (DD 1251).]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01false728.33Sec. 728.33NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNELMEDICAL AND DENTAL CARE FOR ELIGIBLE PERSONS AT NAVY MEDICAL DEPARTMENT FACILITIESRetired Members and Dependents of the Uniformed Services
Sec. 728.33  Nonavailability statement (DD 1251).

    (a) General. Per DODINST 6015.19 of 26 Nov. 1984, the following 
guidelines are effective as of 1 Jan. 1985. All previously issued 
Nonavailability Statement guidelines and reporting requirements are 
superseded.
    (b) Applicability. The following provisions are applicable to 
nonemergency inpatient care only. A DD 1251 is not required:

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    (1) For emergency care (see paragraph (d)(1)) of this section.
    (2) When the beneficiary has other insurance (including Medicare) 
that provides primary coverage for a covered service.
    (3) For medical services that CHAMPUS clearly does not cover.
    (c) Reasons for issuance. DD 1251's may be issued for only the 
following reasons:
    (1) Proper facilities are not available.
    (2) Professional capability is not available.
    (3) It would be medically inappropriate (as defined in 
Sec. 728.2(u)) to require the beneficiary to use the USMTF and the 
attending physician has specific prior approval from the facility's 
commanding officer or higher authority to make such determination.
    (i) Issuance for this reason should be restricted to those instances 
when denial of the DD 1251 could result in a significant risk to the 
health of any patient requiring any clinical specialty.
    (ii) Issuing authorities have discretionary authority to evaluate 
each situation and issue a DD 1251 under the ``medically inappropriate'' 
reason if:
    (A) In consideration of individual medical needs, personal 
constraints on an individual's ability to get to the USMTF results in an 
unreasonable limitation on that individual's ability to get required 
medical care, and
    (B) The issuing authority determines that obtaining care from a 
civilian source selected by the individual would result in significantly 
less limitations on that individual's ability to get required medical 
care than would result if the individual was required to obtain care 
from a USMTF.
    (C) A beneficiary is in a travel status. The commanding officer of 
the first facility contacted, in either the beneficiary's home catchment 
area or the catchment area where hospital care was obtained, has this 
discretionary authority. Travel in this instance means the beneficiary 
is temporarily on a trip away from his or her permanent residence. The 
reason the patient is traveling, the distance involved in the travel, 
and the time away from the permanent residence is not critical to the 
principle inherent in the policy. The issuing officer to whom the 
request for a Nonavailability Statement is made should reasonably 
determine that the trip was not made, and the civilian care is not (was 
not) obtained, with the primary intent of avoiding use of a USMTF or 
USTF serving the beneficiary's home area.
    (d) Guidelines for issuing--(1) Emergency care. Emergency care 
claims do not require an NAS; however, the nature of the service or care 
must be certified as an emergency by the attending physician, either on 
the claim form or in a separate signed and dated statement. Otherwise, a 
DD 1251 is required by CHAMPUS-eligible beneficiaries who are subject to 
the provisions of this section.
    (2) Emergency maternity care. Unless substantiated by medical 
documentation and review, a maternity admission would not be deemed as 
an emergency since the fact of the pregnancy would have been established 
well in advance of the admission. In such an instance, the beneficiary 
would have had sufficient opportunity to obtain a DD 1251 if required in 
her residence catchment area.
    (3) Newborn infant(s) remaining in hospital after discharge of 
mother. A newborn infant remaining in the hospital continuously after 
discharge of the mother does not require a separate DD 1251 for the 
first 15 days after the mother is discharged. Claims for care beyond 
this 15-day limitation must be accompanied by a valid DD 1251 issued in 
the infant's name. This is due to the fact that the infant becomes a 
patient in his or her own right (the episode of care for the infant 
after discharge of the mother is not considered part of the initial 
reason for admission of the mother (delivery), and is therefore 
considered a separate admission under a different diagnosis).
    (4) Cooperative care program. When a DD 2161, Referral for Civilian 
Medical Care, is issued for inpatient care in connection with the 
Cooperative Care Program (Sec. 728.4(z)(5)(iv)) for care under CHAMPUS, 
a DD 1251 must also be issued.
    (5) Beneficiary responsibilities. Beneficiaries are responsible for 
determining whether an NAS is necessary in

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the area of their residence and for obtaining one, if required, by first 
seeking nonemergency inpatient care in the USMTF or USTF serving the 
catchment area. Beneficiaries cannot avoid this requirement by arranging 
to be away from their residence when nonemergency inpatient care is 
obtained, e.g., staying with a relative or traveling. Individuals 
requiring an NAS because they reside in the inpatient catchment area of 
a USMTF or USTF also require an NAS for nonemergency care received while 
away from their inpatient catchment area.
    (e) Issuing authority. Under the direction of the Commander, Naval 
Medical Command, exercised through commanders of naval geographic 
medical commands, naval MTFs will issue Nonavailability Statements only 
when care required is not available from the naval MTF and the 
beneficiary's place of residence is within the catchment area (as 
defined in Sec. 728.2(d)) of the issuing facility or as otherwise 
directed by the Secretary of Defense. When the facility's inpatient 
catchment area overlaps the inpatient catchment area of one or more 
other USMTFs or USTFs with inpatient capability and the residence of the 
beneficiary is within the same catchment area of one or more other 
USMTFs or USTFs with inpatient capability, the issuing authority will:
    (1) Determine whether required care is available at any other USMTFs 
or USTFs whose inpatient catchment area overlaps the beneficiary's 
residence. If care is available, refer the beneficiary to that facility 
and do not issue a DD 1251.
    (2) Implement measures ensuring that an audit trail related to each 
check and referral is maintained, including the check required before 
retroactive issuance of a DD 1251 as delineated in paragraph (g) of this 
section. When other than written communication is made to ascertain 
capability, make a record in the log required in paragraph (h) of this 
section that ``Telephonic (or other) determination was made on (date) 
that required care was not available at (name of other USMTF(s) or 
USTF(s) contacted)''. The individual ascertaining this information will 
sign this notation.
    (3) Once established that a DD 1251 is authorized and will be 
issued, the following will apply:
    (i) Do not refer patients to a specific source of care.
    (ii) Nonavailability Statements issued at commands outside the 
United States are not valid for care received in facilities located 
within the United States. Statements issued within the United States are 
not valid for care received outside the United States.
    (iii) The issuing authority will:
    (A) If capability permits, prepare a DD 1251 via the automated 
application of DEERS. Where this system is operational, it provides for 
transmitting quarterly reports to the Office of the Assistant Secretary 
of Defense for Health Affairs (OASD(HA)) by electronic means. System 
users should refer to their DEERS/NAS Users Manual for specific guidance 
on the use of the automated system. At activities where the DEER/NAS 
automated system is not operational, prepare each DD 1251 per 
instructions on the reverse of the form. After completion, if authorized 
by the facility CO, the issuing authority will sign the DD 1251. Give a 
copy to the patient for presentation to a participating civilian 
provider, or for submission with the claim of a nonparticipating 
provider. Retain a copy for the issuing activity's records. Retain the 
original for subsequent transmittal to the Naval Medical Data Services 
Center per paragraph (j) of this section.
    (B) Explain to the patient or other responsible family member the 
validity period of the DD 1251 (see paragraph (f) of this section).
    (C) Ensure that beneficiaries are clearly advised of the cost-
sharing provisions of CHAMPUS and of the fact that the issuance of a 
Nonavailability Statement does not imply that CHAMPUS will allow any and 
all costs incurred through the use of the DD 1251. The issuance of a DD 
1251 indicates only that care requested is not available at a USMTF or 
USTF serving the beneficiary's residence inpatient catchment area.
    (D) Review, with the patient or responsible family member, 
instructions 1 through 6 on the face of the DD 1251 and have the patient 
or responsible

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family member sign acknowledgement that such review has been made and is 
understood.
    (E) Advise recipients that CHAMPUS fiscal intermediaries may deny 
claims of individuals who are not enrolled in the Defense Enrollment 
Eligibility Reporting System (DEERS).
    (f) Validity period. DD 1251's issued for:
    (1) Other than maternity care are valid for a hospital admission 
occurring within 30 days of issuance and remain valid from the date of 
admission until 15 days after discharge from the facility rendering 
inpatient care. This allows for any follow-on treatment related directly 
to the original admission.
    (2) Maternity episodes are valid if outpatient of inpatient 
treatment related to the pregnancy is initiated within 30 days of its 
issuance. They remain valid for care of the mother through termination 
of the pregnancy and for 42 days thereafter to allow for postnatal care 
to be included in the maternity episode. (See paragraph (d)(3) of this 
section for the validity period of DD 1251's for infants remaining after 
discharge of the mother.)
    (g) Retroactive issuance. Issue Nonavailability Statements 
retroactively only if required care could not have been rendered in a 
USMTF or USTF as specified in paragraph (e) of this section at the time 
services were rendered in the civilian sector. At the time a retroactive 
issuance is requested, the facility receiving the request will determine 
whether capability existed at the USMTF or USTF serving the inpatient 
catchment area wherein the beneficiary resides (resided) or at any of 
the facilities in the overlapping area described in paragraph (e) of 
this section. While the date of service will be recorded on the DD 1251, 
send the retained original to the Naval Medical Data Services Center 
along with others issued during the week of issuance (paragraph (j) of 
this section refers).
    (h) Annotating DD 1251's. Before issuance, annotate each DD 1251 per 
the instructions for completion on the reverse of the form. DD 1251's 
issued under the CO's discretionary authority for the ``medically 
inappropriate reason (paragraph (c)(3)(ii) of this section) will be 
annotated in the remarks section documenting the special circumstances 
necessitating issuance, the name and location of the source of care 
selected by the beneficiary, and approximate distance from the source 
selected to the nearest USMTF or USTF with capability (see instruction 
number 2 on the reverse of the DD 1251). Establish and maintain a 
consecutively numbered log to include for each individual to whom a DD 
1251 is issued:
    (1) Patient's name and identifying data.
    (2) The facility unique NAS number (block number 1 on the DD 1251).
    (i) Appeal procedures. Beneficiaries may appeal the denial of their 
request for a DD 1251. This procedure consists of four levels within 
Navy, any one of which may terminate action and order issuance of a 
Nonavailability Statement if deemed warranted:
    (1) The first level is the chief of service, or director of clinical 
services if the chief of service is the cognizant authority denying the 
beneficiary's original request.
    (2) The second level is the commanding officer of the naval MTF 
denying the issuance. Where the appeal is denied and denial is upheld at 
the commanding officer's level, inform beneficiaries that their appeal 
may be forwarded to the geographic commander having jurisdictional 
authority.
    (3) The third level is the appropriate geographic commander, if the 
appeal is denied at this level, inform beneficiaries that their appeal 
may be forwarded to the Commander, Naval Medical Command, Washington, DC 
20372-5120.
    (4) The Commander, Naval Medical Command, the fourth level of 
appeal, will evaluate all documentation submitted and arrive at a 
decision. The beneficiary will be notified in writing of this decision 
and the reasons therefor.
    (j) Data collection and reporting. Do not issue the original of each 
DD 1251 prepared at activities where the DEER/NAS automated system is 
not operational. Send the retained originals to the Commanding Officer, 
Naval Medical Data Services Center (Code-03), Bethesda, MD 20814-5066 
for reporting

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under report control symbol DD-HA (Q) 1463(6320).