[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
32
Parts 191 to 399
Revised as of July 1, 2004
National Defense
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
For sale by the Superintendent of Documents, U.S. Government Printing
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[[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........................ 1087
Alphabetical List of Agencies Appearing in the CFR...... 1105
List of CFR Sections Affected........................... 1115
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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.
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[[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
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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
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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
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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A subject index to the Code of Federal Regulations is contained in a
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[[Page vii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2004.
[[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, 2004.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-189 and parts 190-399; 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, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, 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 parts 800 to end.
For this volume, Carol A. Conroy was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This volume contains parts 191 to 399)
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Part
SUBTITLE A--Department of Defense (Continued)
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)
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SUBCHAPTER M--MISCELLANEOUS
Part Page
191 The DOD Civilian Equal Employment
Opportunity (EEO) Program............... 11
192 Equal opportunity in off-base housing....... 18
193 Highways for national defense............... 26
194 [Reserved]
195 Nondiscrimination in Federally assisted
programs of the Department of Defense--
Effectuation of Title VI of the Civil
Rights Act of 1964...................... 28
196 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 38
199 Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS)............ 55
203 Technical Assistance for Public
Participation (TAPP) in defense
environmental restoration activities.... 346
204 User charges................................ 356
205 End use certificates (EUCs)................. 363
206 National Security Education Program (NSEP)
grants to institutions of higher
education............................... 365
207 Implementation of section 740 of the Wendell
H. Ford Aviation Investment and Reform
Act for the 21st century as amended by
section 1051 of the National Defense
Authorization Act for Fiscal Year 2003.. 371
208-209 [Reserved]
210 Enforcement of State traffic laws on DoD
installations........................... 375
211 DoD Foreign Tax Relief Program.............. 376
212 Private organizations on DoD installations.. 379
215 Employment of military resources in the
event of civil disturbances............. 382
[[Page 6]]
216 Military Recruiting and Reserve Officer
Training Corps Program access to
institutions of higher education........ 388
218 Guidance for the determination and reporting
of nuclear radiation dose for DoD
participants in the atmospheric nuclear
test program (1945-1962)................ 394
219 Protection of human subjects................ 399
220 Collection from third party payers of
reasonable charges for healthcare
services................................ 410
221 Department of Defense participation in the
National Practitioner Data Bank (NPDB).. 424
223 Department of Defense Unclassified
Controlled Nuclear Information (DoD
UCNI)................................... 425
224 DoD Committee Management Program............ 433
226 Shelter for the homeless.................... 435
228 Security Protective Force................... 436
229 Protection of archaeological resources:
uniform regulations..................... 439
230 Financial institutions on DOD installations. 452
231 Procedures governing banks, credit unions
and other financial institutions on DOD
installations........................... 455
234 Conduct on the Pentagon Reservation......... 488
235 Sale or rental of sexually explicit material
on DoD property......................... 493
237a Public affairs liaison with industry........ 494
238 Armed Forces community relations............ 497
239 Homeowners Assistance Program--application
processing.............................. 520
240 Criteria and procedures for providing
assistance to local educational agencies 529
242 Admission policies and procedures for the
School of Medicine, Uniformed Services
University of the Health Sciences....... 532
242a Public meeting procedures of the Board of
Regents, Uniformed Services University
of the Health Sciences.................. 537
242b General procedures and delegations of the
Board of Regents of the Uniformed
Services University of the Health
Sciences................................ 541
243 Intergovernmental coordination of DoD
Federal development programs and
activities.............................. 546
245 Plan for the security control of air traffic
and air navigation aids (short title:
SCATANA)................................ 547
246 Stars and Stripes (S&S) newspaper and
business operations..................... 559
247 Department of Defense newspapers, magazines
and Civilian Enterprise publications.... 572
[[Page 7]]
248 Department of Defense periodicals........... 590
249 Presentation of DoD-related scientific and
technical papers at meetings............ 592
250 Withholding of unclassified technical data
from public disclosure.................. 596
252 Department of Defense offshore military
activities program...................... 605
253 Assignment of American National Red Cross
and United Service Organizations, Inc.,
employees to duty with the Military
Services................................ 607
256 Air installations compatible use zones...... 608
257 Acceptance of service of process............ 616
258 Cooperation with allies in research and
development of defense equipment........ 617
259 Uniform relocation assistance and real
property acquisition for Federal and
federally-assisted programs............. 619
260 Vending facility program for the blind on
Federal property........................ 619
261 Armed Services military club and package
stores.................................. 625
263 Traffic and vehicle control on certain
Defense Mapping Agency sites............ 627
264 International interchange of patent rights
and technical information............... 628
266 Audits of State and local governments,
institutions of higher education, and
other nonprofit institutions............ 631
268 Collecting and reporting of foreign
indebtedness within the Department of
Defense................................. 634
269 Civil monetary penalty inflation adjustment. 637
270 Compensation of certain former operatives
incarcerated by the Democratic Republic
of Vietnam.............................. 638
271 Obtaining information from financial
institutions............................ 651
272 Administration and support of basic research
by the DoD.............................. 652
274 Regulations governing competitive bidding on
U.S. Government guaranteed military
export loan agreements.................. 654
275 Obtaining information from financial
institutions: Rights to Financial
Privacy Act of 1978..................... 656
277 Implementation of the Program Fraud Civil
Remedies Act............................ 664
282 Procedures for settling personnel and
general claims and processing advance
decision requests....................... 678
SUBCHAPTER N--FREEDOM OF INFORMATION ACT PROGRAM
285 DOD Freedom of Information Act (FOIA)
Program................................. 687
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286 DoD Freedom of Information Act Program
Regulation.............................. 688
286h Release of Acquisition-Related Information.. 742
287 Defense Information Systems Agency Freedom
of Information Act Program.............. 745
290 Defense Contract Audit Agency (DCAA) Freedom
of Information Act Program.............. 747
291 Defense Nuclear Agency (DNA) Freedom of
Information Act Program................. 762
292 Defense Intelligence Agency (DIA) Freedom of
Information Act......................... 776
293 National Imagery Mapping Agency (NIMA)
Freedom of Information Act Program...... 782
295 Office of the Inspector General, Freedom of
Information Act Program................. 786
296 National Reconnaissance Office Freedom of
Information Act Program regulation...... 807
298 Defense Investigative Service (DIS) Freedom
of Information Act Program.............. 809
299 National Security Agency/Central Security
Service (NSA/CSS) Freedom of Information
Act Program............................. 811
SUBCHAPTER O--PRIVACY PROGRAM
310 DoD Privacy Program......................... 822
311 OSD Privacy Program......................... 874
312 Office of the Inspector General (OIG)
Privacy Program......................... 887
313 The Chairman of the Joint Chiefs of Staff
and the Joint Staff Privacy Program..... 895
314 Defense Advanced Research Projects Agency,
Privacy Act of 1974..................... 895
315 Uniformed Services University of Health
Sciences, Privacy Act of 1974........... 895
316 Defense Information Systems Agency Privacy
Program................................. 895
317 DCAA Privacy Act Program.................... 900
318 Defense Threat Reduction Agency Privacy
Program................................. 903
319 Defense Intelligence Agency Privacy Program. 912
320 National Geospatial Intelligence Agency
(NGA) Privacy........................... 917
321 Defense Security Service Privacy Program.... 924
322 National Security Agency/Central Security
Services Privacy Act Program............ 936
323 Defense Logistics Agency Privacy Program.... 961
324 DFAS Privacy Act Program.................... 986
[[Page 9]]
326 National Reconnaissance Office Privacy Act
Program................................. 994
327 Defense Commissary Agency Privacy Act
Program................................. 1015
SUBCHAPTER P--OBTAINING DOD INFORMATION
336 Publications of proposed and adopted
regulations affecting the public........ 1029
337 Availability of DoD directives, DoD
instructions, DoD publications, and
changes................................. 1032
338 Availability to the public of Defense
Nuclear Agency (DNA) instructions and
changes thereto......................... 1032
SUBCHAPTER Q [RESERVED]
SUBCHAPTER R--ORGANIZATIONAL CHARTERS
343 Under Secretary of Defense for Personnel and
Readiness (USD(P&R)).................... 1034
344 Assistant Secretary of Defense for Reserve
Affairs (ASD(RA))....................... 1036
345 Department of Defense section 6 schools..... 1038
346 Department of Defense education activity.... 1041
347 Department of Defense Dependents Schools
(DoDDS)................................. 1043
352a Defense Finance and Accounting Service
(DFAS).................................. 1048
362 Defense Information Systems Agency (DISA)... 1051
367 Assistant Secretary of Defense for Health
Affairs................................. 1059
371 Defense Prisoner of War/Missing in Action
Office (DPMO)........................... 1061
378 Assistant to the Secretary of Defense for
Intelligence Oversight (ATSD(IO))....... 1062
383a Defense Commissary Agency (DeCA)............ 1064
388 Ballistic Missile Defense Organization
(BMDO).................................. 1068
390 Armed Forces Radiobiology Research Institute 1073
392 Director of Small and Disadvantaged Business
Utilization............................. 1075
395 Defense Legal Services Agency............... 1077
398 Defense Logistics Agency (DLA).............. 1079
399 [Reserved]
[[Page 11]]
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\.
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\1\ Copies may be obtained from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
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[[Page 12]]
(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.
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\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 13]]
(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 14]]
(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 15]]
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 16]]
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 17]]
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 precedures 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 18]]
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.\1\\0\
---------------------------------------------------------------------------
\1\\0\ 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
disabilites. 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 19]]
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 20]]
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 21]]
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]
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 22]]
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?
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 23]]
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 24]]
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 25]]
(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 Referal 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 26]]
(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 Deparment
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 27]]
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 28]]
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 29]]
(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 30]]
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 31]]
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 32]]
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 33]]
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 34]]
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 35]]
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 36]]
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 37]]
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).
Appendix A to Part 195--Programs to Which This Part Applies
1. The Army and Air National Guard (Title 32, United States Code).
[[Page 38]]
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 proj ects (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 39]]
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 40]]
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 41]]
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 42]]
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 43]]
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 44]]
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 45]]
(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 46]]
(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 47]]
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 48]]
(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 49]]
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 50]]
(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 51]]
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 52]]
(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,
[[Page 53]]
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;
(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:
[[Page 54]]
(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;
(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.
[[Page 55]]
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 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 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 Program for Persons with Disabilities (PFPWD).
199.6 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 Uniform HMO Benefit.
199.20 Continued Health Care Benefit Program (CHCBP).
199.21 Pharmacy benefits program.
199.22 TRICARE Retiree Dental Program (TRDP).
199.23 Special Supplemental Food Program.
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 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.
[[Page 56]]
(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\
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\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.
(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,
[[Page 57]]
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 Aquisition
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 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
[[Page 58]]
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 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
[[Page 59]]
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
discretionay 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.
(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
[[Page 60]]
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) Reimbusement. 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 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
[[Page 61]]
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 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.
[[Page 62]]
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 applicable
JCAHO standards and the provider's state or local licensing
requirements) and other requirements specified by this part. It must be
noted that 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 JCAHO manual for hospitals rather than the
consolidated 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 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
[[Page 63]]
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 insitutions, 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.
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 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.
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
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single period of time. An attending physician also may be a teaching
physician.
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.
Basic program. The primary medical benefits authorized under chapter
55 of title 10 U.S. Code, and set forth in Sec. 199.4 of 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.
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,
using communication and available resources to promote quality, cost
effective outcomes.
Case managers. A licensed registered nurse, licensed clinical social
worker, licensed psychologist or licensed physician who has a minimum of
two (2) years case management experience.
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.
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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 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
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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; hysterotomy.
(ii) Pregnancy terminating before expiration of 26 weeks, except a
voluntary abortion.
(iii) False labor or threatened miscarriage.
(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 or dentist
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 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
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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).
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 a beneficiary of the first $50 of the
CHAMPUS-determined allowable costs or charges for otherwise covered
outpatient services or supplies provided in any one fiscal year; or for
a family, the aggregate payment by two or more beneficiaries who submit
claims of the first $100.
Deductible certificate. A statement issued to the beneficiary (or
sponsor) by a CHAMPUS fiscal intermediary certifying to deductible
amounts satisfied by a CHAMPUS beneficiary for any applicable fiscal
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
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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 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 TRICARE Management Activity or
Director, Office of CHAMPUS. Any references to the Director, Office of
CHAMPUS, or OCHAMPUS, shall mean the Director, TRICARE Management
Activity. 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
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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
beneifts 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 Part C of the IDEA that
are medically or psychologically necessary in accordance with the
Individualized Family Service Plan and that are otherwise allowable
under the CHAMPUS Basic Program or the Program for Persons with
Disabilities.
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.
Durable equipment. A device or apparatus which does not qualify as
Durable Medical Equipment (as defined in this section), and which is
essential to the efficient arrest or reduction of functional loss
resulting from a qualifying condition as provided by Sec. 199.5.
Durable medical equipment. Equipment for which the allowable charge
is over $100 and which:
(1) Is medically necessary for the treatment of a covered illness or
injury;
(2) Improves the function of a malformed, diseased, or injured body
part, or retards further deterioration of a patient's physical
condition;
(3) Is primarily and customarily designed and intended to serve a
medical purpose rather than primarily for transportation, comfort, or
convenience;
(4) Can withstand repeated use;
(5) Provides the medically appropriate level of performance and
quality for the medical condition present (that is, nonluxury and
nondeluxe);
(6) Is other than spectacles, eyeglasses, contact lenses, or other
optical devices; hearing aids; or other communication devices; and
(7) Is other than exercise equipment, spas, whirlpools, hot tubs,
swimming pools or other such items.
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 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,
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partnership, sole proprietorship or other kind of business enterprise
that is or may be eligible to receive reimbursement either directly or
indirectly from CHAMPUS.
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 condition. A complex clinical condition, which
resulted, or is expected to result, in extraordinary TRICARE/CHAMPUS
costs or utilization, based on thresholds established by the Director,
OCHAMPUS, or designee.
Former member. A retiree, deceased member, deceased retiree, or
deceased reservist in certain circumstances (see section 199.3 for
additional information related to certain deceased reservists'
dependents' eligibility). Under conditions specified under Sec. 199.3
of this part, former member may also include a member of the Uniformed
Services who has been discharged from active duty (or, in some cases,
full-time National Guard duty), whether voluntarily or involuntarily,
under other than adverse conditions and qualifies for CHAMPUS benefits
under the Transitional Assistance Management Program or the Continued
Health Care Benefit Program.
Former spouse. A former husband or wife of a Uniformed Service
member or former mmeber 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 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.
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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.
Home health discipline. One of six home health disciplines covered
under the home health benefit (skilled nursing 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, long-term (tuberculosis, chronic care, or rehabilitation).
An institution that meets the criteria as set forth in Sec.
199.6(b)(4)(iii) of this part.
Hospital, phychiatric. 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.
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Immediate family. The spouse, natural parent, child and sibling, a
dopted 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.
Institution-affiliated. Related to a CHAMPUS-authorized
institutional 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.
Intermittent home health aide and skilled nursing services.
Intermittent means:
(1) Up to and including 28 hours per week of skilled nursing and
home health aide services combined, provided on a less-than-daily basis;
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(2) Up to 35 hours per week of skilled nursing and home health aide
services combined that are provided on a less-than-daily basis, subject
to review by managed care support contractors on a case-by-case basis,
based upon documentation justifying the need for and reasonableness of
such additional care; or
(3) Up to and including full-time (i.e., eight hours per day)
skilled nursing and home health aide services combined which are
provided and needed seven days per week for temporary, but not
indefinite, periods of time of up to 21 days with allowances for
extensions in exceptional circumstances where the need for care in
excess of 21 days is finite and predictable.
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 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 hospital care. Any inpatient hospital stay that exceeds 30
days.
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
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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 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.
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. (For CHAMPUS
cost-sharing purposes only, 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 is considered a member).
Mental 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. Additionally, the mental disorder must be one of those
conditions listed in the DSM-III.
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Mental health counselor. An extramedical individual provider who
meets the requirements outlined in Sec. 199.6.
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. The body weight is 100 pounds over ideal weight for
height and bone structure, according to the most current Metropolitan
Life Table, and such weight is in association with severe medical
conditions known to have higher mortality rates in association with
morbid obesity; or, the body weight is 200 percent or more of the ideal
weight for height and bone structure according to the most current
Metropolitan Life Table. The associated medical conditions are diabetes
mellitus, hypertension, cholecystitis, narcolepsy, pickwickian syndrome
(and other severe respiratory diseases), hypothalmic disorders, and
severe arthritis of the weight-bearing joints.
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 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.
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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.
Official formularies. A book of official standards for certain
pharmaceuticals and preparations that are not included in the U.S.
Pharmacopeia.
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 Regulation; 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 on Accreditation 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 medical therapeutic services at least 3
hours per day, 5 days per week, which may embrace 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
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partially stabilized mental health disorders, and a transition from an
inpatient program when medically necessary. Such programs must enter
into a participation agreement with CHAMPUS, and be accredited and in
substantial compliance with the standards of the Mental Health Manual of
the Joint Commission on Accreditation of Healthcare Organizations
(JCAHO) (formerly known as the Consolidated Standards).
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 home health aide and skilled nursing services. Part-time
means:
(1) Up to and including 28 hours per week of skilled nursing and
home health aide services combined for less than eight hours per day; or
(2) Up to 35 hours per week of skilled nursing and home health aide
services combined for less than eight hours per day subject to review by
managed care support contractors on a case-by-case basis, based upon
documentation justifying the need for and reasonableness of such
additional care.
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.
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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 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 essentials 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.
Program for Persons with Disabilities PFPWD). The CHAMPUS benefits
described in Sec. 199.5.
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.
Provider. A hospital or other institutional provider, a physician,
or other individual professional provider, or 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
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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 which has an economic interest, as defined in this section,
in the accreditation organization or in which the accreditation
organizationhas 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.
Radiation therapy services. The treatment of diseases by x-ray,
radium, or radioactive isotopes when ordered by the attending physician.
Rare Diseases. CHAMPUS defines a rare disease as one which affects
fewer than one in 200,000 Americans.
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.
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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.
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 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)(v).
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.
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.
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).
[[Page 81]]
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.
Spectacles, eyeglasses, and lenses. Lenses, including contact
lenses, that help to correct faulty vision.
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-time course of study in an institution of higher
learning.
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.
[[Page 82]]
(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 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 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.
Treatment plan. A detailed description of the medical care being
rendered or expected to be rendered a CHAMPUS beneficiary seeking
approval for inpatient benefits for which preauthorization is required
as set forth in Sec. 199.4(b) of this part. A treatment plan must
include, at a minimum, a diagnosis (either ICD-9-CM or DSM-III);
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
[[Page 83]]
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 extra plan. The health care option, provided as part of the
TRICARE program under Sec. 199.17, under which beneficiaries may choose
to receive care in facilities of the uniformed services, or from special
civilian network providers (with reduced cost sharing), or from any
other CHAMPUS-authorized provider (with standard cost sharing).
TRICARE prime plan. The health care option, provided as part of the
TRICARE program under Sec. 199.17, under which beneficiaries enroll to
receive all health care from facilities of the uniformed services and
civilian network providers (with civilian care subject to substantially
reduced cost sharing.
TRICARE program. The program establish under Sec. 199.17.
TRICARE standard plan. The health care option, provided as part of
the TRICARE program under Sec. 199.17, under which beneficiaries are
eligible for care in facilities of the uniformed services and CHAMPUS
under standard rules and procedures.
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.
Unlabeled or Off-Label Drugs. Food and Drug Administration (FDA)
approved drugs that are used for indications or treatments not included
in the approved labeling. The drug must be medically necessary for the
treatment of the condition for which it is administered, according to
accepted standards of medical practice.
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, as amended at 64 FR 46134, Aug. 24, 1999]
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 on GPO Access.
Editorial Note: At 66 FR 45172, Aug. 28, 2001,Sec. 199.2, was
amended in part by revising the definition of ``Director, OCHAMPUS''.
However, because of inaccurate amendatory language, this amendment could
not be incorporated.
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
[[Page 84]]
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.
(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
[[Page 85]]
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
(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).
[[Page 86]]
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. 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) A child placed in legal custody of a member or former member. A
child who is placed in legal custody of a member or former member by a
court or who is placed in the home of a member or former member by a
recognized placement agency in anticipation of the legal adoption of the
child.
(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 Program for Persons with Disabilities 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
[[Page 87]]
former member who was the victim of the abuse.
(2) Abused child. The abused child must:
(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.
(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 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.
(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.
[[Page 88]]
(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 Program for Persons with Disabilities, 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 Program for Persons with
Disabilities.
(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 Program for Persons with
Disabilities.
(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.
(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 Program for Persons with
Disabilities 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 Program for Persons with
Disabilities.
(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 Program for Persons with
Disabilities.
(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 Program for Persons with Disabilities,
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 Program for Persons with
Disabilities.
(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
[[Page 89]]
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 Program for Persons with Disabilities, 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 Program for Persons with
Disabilities.
(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) Program for Persons with Disabilities 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 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) Program for Persons with Disabilities 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 Program for Persons with
Disabilities.
(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 Program for Persons with
Disabilities 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:
[[Page 90]]
(A) For all benefits under the CHAMPUS Basic Program, October 23,
1992.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(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) Program for Persons with Disabilities 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) Program for Persons with Disabilities 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) Program for Persons with Disabilities benefits limited to
children of members only, October 5, 1994.
(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 Program for Persons with Disabilities.
(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).Transitional health care benefits under CHAMPUS are authorized
for the applicable time period described, for:
(1) Up to thirty (30) days or until again covered by an employer-
sponsored health plan, whichever occurs earlier, following release from
active duty for:
(i) Activated Guard/Reserve and their dependents,
(ii) Involuntary stop-loss and their dependents,
(iii) Voluntary stop-loss and their dependents, and
(iv) Members who accepted Voluntary Separation Incentives (VSI).
(2) Sixty (60) days for regular DoD military and their dependents
when the sponsor is involuntarily separated with less than six years of
active service. Involuntary separation must occur during the five-year
period beginning October 1, 1990.
(3) One hundred twenty (120) days for regular military and their
dependents when the sponsor is involuntarily separated with six or more
years of active service. Involuntary separation must occur during the
five year period beginning October 1, 1990. Each branch of service will
determine eligibility, including dates, for its members and
[[Page 91]]
their dependents 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 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.
(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
[[Page 92]]
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
(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; 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.
(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 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
[[Page 93]]
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]
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 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.
(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,
[[Page 94]]
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.
(8) Double coverage and third party recoveries. CHAMPUS claims
involving double coverage or the possiblity 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. In
some geographic locations, it is necessary for CHAMPUS beneficiaries not
enrolled in TRICARE Prime to determine whether the required inpatient
mental health
[[Page 95]]
care can be provided through a Uniformed Service facility. If the
required care cannot be provided, the hospital commander, or a designee,
will issue a Nonavailability Statement (NAS) (DD Form 1251). Except for
emergencies, as NAS should be issued before inpatient mental health care
is obtained from a civilian source. Failure to secure such a statement
may waive the beneficiary's rights to benefits under CHAMPUS/TRICARE.
(i) Rules applicable to issuance of Nonavailability Statement (NAS)
(DD Form 1251).
(A) The ASD(HA) is responsible for issuing rules and regulations
regarding Nonavailability Statements.
(B) For CHAMPUS beneficiaries who are not enrolled in TRICARE Prime,
an NAS is required for services in connection with nonemergency hospital
inpatient mental health care if such services are available at a
military treatment facility (MTF) located within a 40-mile radius of the
residence of the beneficiary, except that a NAS is not 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).
(ii) Beneficiary responsibility.A CHAMPUS beneficiary who is not
enrolled in TRICARE Prime is responsible for securing information
whether or not he or she resides in a geographic area that requires
obtaining a Nonavailability Statement. Information concerning current
rules and regulations may be obtained from the Offices of the Army,
Navy, and Air Force Surgeons General; or a representative of the TRICARE
managed care support contractor's staff, or the Director, OCHAMPUS.
(iii) Rules in effect at 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 Nonavailability Statement is required.
(iv) Nonavailability Statement (DD Form 1251) must be filed with
applicable claim. When a claim is submitted for TRICARE benefits that
includes services for which an NAS was issued, a valid NAS authorization
must be on the DoD required system.
(v) Nonavailability Statement (NAS) and Claims Adjudication. A NAS
is 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.
(vi) In the case of any service subject to an NAS requirement under
paragraph (a)(9) of this section and also subject to a preadmission (or
other pre-service) authorization requirement under Sec. 199.4 or Sec.
199.15, the administrative processes for the NAS and pre-service
authorization may be combined.
(vii) With the exception of maternity services, the Assistant
Secretary of Defense for Health Affairs (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
[[Page 96]]
to require an NAS under this authority, the reason for the NAS
requirement, and the date that an NAS will be required.
(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. (Utilization and quality
review of mental health services are also part of the Peer Review
Organization program, and are addressed in paragraph (a)(12) of this
section.)
(12) Utilization review, quality assurance and reauthorization for
inpatient mental health services and partial hospitalization. (i) In
general. The Director, OCHAMPUS shall provide, either directly or
through contract, a program of utilization and quality review for all
mental health care services. Among other things, this program shall
include mandatory preadmission authorization before nonemergency
inpatient mental health services may be provided and mandatory approval
of continuation of inpatient services within 72 hours of emergency
admissions. This program shall also include requirements for other
pretreatment authorization procedures, concurrent review of continuing
inpatient and partial hospitalization, retrospective review, and other
such procedures as determined appropriate by the Director, OCHAMPUS. The
provisions of paragraph (h) of this section and Sec. 199.15(f) shall
apply to this program. The Director, OCHAMPUS, shall establish, pursuant
to that Sec. 199.15(f), procedures substantially comparable to
requirements of paragraph (h) of this section and Sec. 199.15. If the
utilization and quality review program for mental health care services
is provided by contract, the contractor(s) need not be the same
contractor(s) as are engaged under Sec. 199.15 in connection with the
review of other services.
(ii) Preadmission authorization. (A) This section generally requires
preadmission authorization for all non-emergency inpatient mental health
services and prompt continued stay authorization after emergency
admissions with the exception noted in paragraph (a)(12)(ii) of this
section. It also requires preadmission authorization for all admissions
to a partial hospitalization program, without exception, as the concept
of an emergency admission does not pertain to a partial hospitalization
level of care. Institutional services for which payment would otherwise
be authorized, but which were provided without compliance with
preadmission authorization requirements, do not qualify for the same
payment that would be provided if the preadmission requirements had been
met.
(B) In cases of noncompliance with preauthorization requirements, a
payment reduction shall be made in accordance with Sec.
199.15(b)(4)(iii).
(C) For purposes of paragraph (a)(12)(ii)(B) of this section, a day
of services without the appropriate preauthorization is any day of
services provided prior to:
(1) The receipt of an authorization; or
(2) The effective date of an authorization subsequently received.
(D) Services for which payment is disallowed under paragraph
(a)(12)(ii)(B) of this section may not be billed to the patient (or the
patient's family).
(E) Preadmission authorization for inpatient mental health services
is not required in the following cases:
(1) In the case of an emergency.
(2) In a case in which benefits are payable for such services under
part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et
seq.) subject to paragraph (a)(12)(iii) of this section.
(3) In a case of inpatient mental health services in which paragraph
(a)(12)(ii) of this section applies, the Secretary shall require advance
authorization for a continuation of the provision of such services after
benefits cease to be payable for such services under such part A.
(13) Implementing instructions. The Director, OCHAMPUS shall issue
policies, procedures, instructions, guidelines, standards and/or
criteria to implement this section.
(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
[[Page 97]]
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 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
[[Page 98]]
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.
(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.
(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.
(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,
[[Page 99]]
orthopedic hardware and dressings. Use of durable medical equipment is
restricted to an inpatent 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 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 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.
(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.
[[Page 100]]
(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 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.)
(viii) Preauthorization requirement. (A) All admissions to RTC care
are elective and must be certified as medically/psychologically
necessary prior to admission. The criteria for preauthorization shall be
those set forth in paragraph (b)(4)(vii) of this section. In applying
those criteria in the context of preadmission authorization review,
special emphasis is placed on the development of a specific diagnosis/
treatment plan, consistent with those criteria and reasonably expected
to be effective, for that individual patient.
(B) The timetable for development of the individualized treatment
plan shall be as follows:
(1) The plan must be under development at the time of the admission.
(2) A preliminary treatment plan must be established within 24 hours
of the admission.
[[Page 101]]
(3) A master treatment plan must be established within ten calendar
days of the admission.
(C) The elements of the individualized treatment plan must include:
(1) The diagnostic evaluation that establishes the necessity for the
admission;
(2) An assessment regarding the inappropriateness of services at a
less intensive level of care;
(3) A comprehensive, biopsychosocial assessment and diagnostic
formulation;
(4) A specific individualized treatment plan that integrates
measurable goals/objectives and their required level of care for each of
the patient's problems that are a focus of treatment;
(5) A specific plan for involvement of family members, unless
therapeutically contraindicated; and
(6) A discharge plan, including an objective of referring the
patient to further services, if needed, at less intensive levels of care
within the benefit limited period.
(D) Preauthorization requests should be made not fewer than two
business days prior to the planned admission. In general, the decision
regarding preauthorization shall be made within one business day of
receipt of a request for preauthorization, and shall be followed with
written confirmation. Preauthorizations are valid for the period of
time, appropriate to the type of care involved, stated when the
preauthorization is issued. In general, preauthorizations are valid for
30 days.
(ix) Concurrent review. Concurrent review of the necessity for
continued stay will be conducted no less frequently than every 30 days.
The criteria for concurrent review shall be those set forth in paragraph
(b)(4)(vii) of this section. In applying those criteria in the context
of concurrent review, special emphasis is placed on evaluating the
progress being made in the active individualized clinical treatment
being provided and on developing appropriate discharge plans.
(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
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)
[[Page 102]]
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 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
[[Page 103]]
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) Preauthorization requirements. (A) With the exception noted in
paragraph (a)(12)(ii)(E) of this section, all non-emergency admissions
to an acute inpatient hospital level of care must be authorized prior to
the admission.The criteria for preauthorization shall be those set forth
in paragraph (b)(6)(i) of this section. In applying those criteria in
the context of preauthorization review, special emphasis is placed on
the development of a specific individualized treatment plan, consistent
with those criteria and reasonably expected to be effective, for that
individual patient.
(B) The timetable for development of the individualized treatment
plan shall be as follows:
(1) The development of the plan must begin immediately upon
admission.
(2) A preliminary treatment plan must be established within 24 hours
of the admission.
(3) A master treatment plan must be established within five calendar
days of the admission.
[[Page 104]]
(C) The elements of the individualized treatment plan must include:
(1) The diagnostic evaluation that establishes the necessity for the
admission;
(2) An assessment regarding the inappropriateness of services at a
less intensive level of care;
(3) A comprehensive biopsychosocial assessment and diagnostic
formulation;
(4) A specific individualized treatment plan that integrates
measurable goals/objectives and their required level of care for each of
the patient's problems that are a focus of treatment;
(5) A specific plan for involvement of family members, unless
therapeutically contraindicated; and
(6) A discharge plan, including an objective of referring the
patient to further services, if needed, at less intensive levels of care
within the benefit limit period.
(D) The request for preauthorization must be received by the
reviewer designated by the Director, OCHAMPUS prior to the planned
admission. In general, the decision regarding preauthorization shall be
made within one business day of receipt of a request for
preauthorization, and shall be followed with written confirmation. In
the case of an authorization issued after an admission resulting from
approval of a request made prior to the admission, the effective date of
the certification shall be the date of the receipt of the request.
However, if the request on which the approved authorization is based was
made after the admission (and the case was not an emergency admission),
the effective date of the authorization shall be the date of approval.
(E) Authorization prior to admission is not required in the case of
a psychiatric emergency requiring an inpatient acute level of care, but
authorization for a continuation of services must be obtained promptly.
Admissions resulting from a bona fide psychiatric emergency should be
reported within 24 hours of the admission or the next business day after
the admission, but must be reported to the Director, OCHAMPUS or a
designee, within 72 hours of the admission. In the case of an emergency
admission authorization resulting from approval of a request made within
72 hours of the admission, the effective date of the authorization shall
be the date of the admission. However, if it is determined that the case
was not a bona fide psychiatric emergency admission (but the admission
can be authorized as medically or psychologically necessary), the
effective date of the authorization shall be the date of the receipt of
the request.
(iv) Concurrent review. Concurrent review of the necessity for
continued stay will be conducted. The criteria for concurrent review
shall be those set forth in paragraph (b)(6)(i) of this section. In
applying those criteria in the context of concurrent review, special
emphasis is placed on evaluating the progress being made in the active
clinical treatment being provided and on developing/refining appropriate
discharge plans. In general, the decision regarding concurrent review
shall be made within one business day of the review, and shall be
followed with written confirmation.
(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
provisions of title VI of the Civil Rights Act, or satisfy other
conditions herein set forth. In a medical emergency, medically necessary
inpatient services and supplies 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. 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.
[[Page 105]]
(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) RTC day limit. (i) With respect to mental health services
provided on or after October 1, 1991, benefits for residential treatment
are generally limited to 150 days in a fiscal year or 150 days in an
admission (not including days of care prior to October 1, 1991). The RTC
benefit limit is separate from the benefit limit for acute inpatient
mental health care.
(ii) Waiver of the RTC day limit. (A) There is a statutory
presumption against the appropriateness of residential treatment
services in excess of the 150 day limit. However, the Director,
OCHAMPUS, (or designee) may in special cases, after considering the
opinion of the peer review designated by the Director (involving a
health professional who is not a federal employee) confirming that
applicable criteria have been met, waive the RTC benefit limit in
paragraph (b)(8)(i) of this section and authorize payment for care
beyond that limit.
(B) The criteria for waiver shall be those set forth in paragraph
(b)(4)(vii) of this section. In applying those criteria to the context
of waiver request reviews, special emphasis is placed on assuring that
the record documents that:
(1) Active treatment has taken place for the past 150 days and
substantial progress has been made according to the plan of treatment.
(2) The progress made is insufficient, due to the complexity of the
illness, for the patient to be discharged to a less intensive level of
care.
(3) Specific evidence is presented to explain the factors which
interfered with treatment progress during the 150 days of RTC care.
(4) The waiver request includes specific timeframes and a specific
plan of treatment which will lead to discharge.
(C) Where family or social issues complicate transfer to a lower
level of intensity, the RTC is responsible for determining and arranging
the supportive and adjunctive resources required to permit appropriate
transfer. If the RTC fails adequately to meet this responsibility, the
existence of such family or social issues shall be an inadequate basis
for a waiver of the benefit limit.
(D) It is the responsibility of the patient's primary care provider
to establish, through actual documentation from the medical record and
other sources, that the conditions for waiver exist.
(iii) RTC day limits do not apply to services provided under the
Program for Persons with Disabilities (Sec. 199.5) or services provided
as partial hospitalization care.
(9) Acute care day limits. (i) With respect to mental health care
services provided on or after October 1, 1991, payment for inpatient
acute hospital care is, in general, statutorily limited as follows:
(A) Adults, aged 19 and over--30 days in a fiscal year or 30 days in
an admission (excluding days provided prior to October 1, 1991).
(B) Children and adolescents, aged 18 and under--45 days in a fiscal
year or 45 days in an admission (excluding days provided prior to
October 1, 1991).
(ii) It is the patient's age at the time of admission that
determines the number of days available.
(iii) Waiver of the acute care day limits. (A) There is a statutory
presumption against the appropriateness of inpatient acute services in
excess of the day limits set forth in paragraph (b)(9)(i) of this
section. However, the Director, OCHAMPUS (or designee) may in special
cases, after considering the opinion of the peer review designated by
the Director (involving a health professional who is not a federal
employee) confirming that applicable criteria have been met, waive the
acute inpatient limits described in paragraph (b)(9)(i) of this section
and authorize payment for care beyond those limits.
[[Page 106]]
(B) The criteria for waiver of the acute inpatient limit shall be
those set forth in paragraph (b)(6)(i) of this section. In applying
those criteria in the context of waiver request review, special emphasis
is placed on determining whether additional days of acute inpatient
mental health care are medically/psychologically necessary to complete
necessary elements of the treatment plan prior to implementing
appropriate discharge planning. A waiver may also be granted in cases in
which a patient exhibits well-documented new symptoms, maladaptive
behavior, or medical complications which have appeared in the inpatient
setting requiring a significant revision to the treatment plan.
(C) The clinician responsible for the patient's care is responsible
for documenting that a waiver criterion has been met and must establish
an estimated length of stay beyond the date of the inpatient limit.
There must be evidence of a coherent and specific plan for assessment,
intervention and reassessment that reasonably can be accomplished within
the time frame of the additional days of coverage requested under the
waiver provision.
(D) For patients in care at the time the inpatient limit is reached,
a waiver must be requested prior to the limit. For patients being
readmitted after having received 30 or 45 days in the fiscal year, the
waiver review will be conducted at the time of the preadmission
authorization.
(iv) Acute care day limits do not apply to services provided under
the Program for Persons with Disabilities (Sec. 199.5) or services
provided as partial hospitalization care.
(10) Psychiatric partial hospitalization services.
(i) In general. Partial hospitalization services are those services
furnished by a CHAMPUS-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 psychiatrist employed by the
partial hospitalization center to ensure medication and physical needs
of all the patients are considered. The primary or attending provider
must be a CHAMPUS authorized mental health provider, 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, pastoral
counselors and mental health counselors. Partial hospitalization
services are covered as a basic program benefit only if they are
provided in accordance with paragraph (b)(10) of this section.
(ii) Criteria for determining medical or psychological necessity of
psychiatric partial hospitalization services. Psychiatric 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.
(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 (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).
(C) The patient is in need of crisis stabilization, 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) Preauthorization and concurrent review requirements. All
preadmission authorization and concurrent review requirements and
procedures applicable to acute mental health inpatient hospital care in
paragraphs (a)(12) and (b) of this section are applicable to the partial
hospitalization program, except that the criteria for considering
medical or psychological necessity shall be those set forth in paragraph
(b)(10)(ii) of this section, and no emergency admissions will be
recognized.
[[Page 107]]
(iv) Institutional benefits limited to 60 days. Benefits for
institutional services for partial hospitalization are limited to 60
treatment days (whether a full day or partial day program) in a fiscal
year or in an admission. This limit may be extended by waiver.
(v) Waiver of the 60-day partial hospitalization program limit. The
Director, OCHAMPUS (or designee) may, in special cases, waive the 60-day
partial hospitalization benefit and authorize payment for care beyond
the 60-day limit.
(A) the criteria for waiver are set forth in paragraph (b)(10)(ii)
of this section. In applying these criteria in the context of waiver
request review, special emphasis is placed on determining whether
additional days of partial hospitalization are medically/psychologically
necessary to complete essential elements of the treatment plan prior to
discharge. Consideration is also given in cases in which a patient
exhibits well-documented new symptoms or maladaptive behaviors which
have appeared in the partial hospitalization setting requiring
significant revisions to the treatment plan.
(B) The clinician responsible for the patient's care is responsible
for documenting the need for additional days and must establish an
estimated length of stay beyond the date of the 60-day limit. There must
be evidence of a coherent and specific plan for assessment, intervention
and reassessment that reasonably can be accomplished within the time
frame of the additional days of coverage requested under the waiver
provisions.
(C) For patients in care at the time the partial hospitalization
program limit is reached, a waiver must be requested prior to the limit.
For patients being preadmitted after having received 60 days in the
fiscal year, the waiver review will be conducted at the time of the
preadmission authorization.
(vi) 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, OCHAMPUS, 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;
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.
(D) Treatment services. All services, supplies, equipment and space
necessary to fulfill the requirements of each patient's individualized
diagnosis and treatment plan (with the exception of the five
psychotherapy sessions per week which may be allowed separately for
individual or family psychotherapy based upon the provisions of
paragraph (b)(10)(vii) of this section). All mental health services must
be provided by a CHAMPUS authorized individual professional provider of
mental health services. [Exception: PHPs 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 the individual must work under the clinical
supervision of a fully qualified mental health provider employed by the
PHP.]
(vii) Social services required. The facility must provide an active
social services component which assures the patient appropriate living
arrangements after treatment hours, transportation to and from the
facility, arrangement of community based support services, referral of
suspected child abuse to the appropriate state agencies, and effective
after care arrangements, at a minimum.
[[Page 108]]
(viii) 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 half
or full day program.
(ix) 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 CHAMPUS 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 Director,
OCHAMPUS, or designee, only if family therapy is clinically
contraindicated.
(x) Professional mental health benefits limited. Professional mental
health benefits are limited to a maximum of one session (60 minutes
individual, 90 minutes family) per authorized treatment day not to
exceed five sessions in any calendar week. These may be billed
separately from the partial hospitalization per diem rate only when
rendered by an attending, CHAMPUS-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.
(xi) Non-mental health related medical services. Separate billing
will be allowed for otherwise covered, non-mental health related medical
services.
(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 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.
(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
[[Page 109]]
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 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 involve the fingers or toes,
benefits for the first surgical procedure shall be at one hundred (100)
percent of the CHAMPUS-determined allowable charge; the second procedure
at fifty (50) percent; and the third and subsequent procedures at
twenty-five (25) percent.
(2) If the multiple surgical procedures include an incidental
procedure, no benefits shall be allowed for the incidental procedure.
(3) 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
[[Page 110]]
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 condition or because
the beneficiary has multiple conditions that require treatment by
providers of different specialities. 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. CHAMPUS benefits for the
treatment
[[Page 111]]
of mental disorders are payable for beneficiaries who are outpatients or
inpatients of CHAMPUS-authorized general or psychiatric hospitals, RTCs,
or specialized treatment facilities, as authorized by the Director,
OCHAMPUS, or a designee. All such services are subject to review for
medical or psychological necessity and for quality of care. The
Director, OCHAMPUS, reserves the right to require preauthorization of
mental health services. Preauthorization may be conducted by the
Director, OCHAMPUS, or a designee. In order to qualify for CHAMPUS
mental health benefits, the patient must be diagnosed by a CHAMPUS-
authorized licensed, qualified mental health professional to be
suffering from a mental disorder, according to the criteria listed in
the most current edition of the Diagnostic and Statistical Manual of
Mental Disorders which may be purchased from the American Psychiatric
Press, Inc., 1400 K Street, NW., suite 1101, Washington, DC 20005.
Benefits are limited for certain mental disorders, such as specific
developmental disorders. No benefits are payable for ``Conditions Not
Attributable to a Mental Disorder,'' or V codes. In order for treatment
of a mental disorder to be medically or psychologically necessary, the
patient must, as a result of a diagnosed mental disorder, be
experiencing both physical or psychological distress and an impairment
in his or her ability to function in appropriate occupational,
educational or social roles. It is generally the degree to which the
patient's ability to function is impaired that determines the level of
care (if any) required to treat the patient's condition.
(A) Covered diagnostic and therapeutic services. Subject to the
requirements and limitations stated, CHAMPUS benefits are payable for
the following services when rendered in the diagnosis or treatment of a
covered mental disorder by a CHAMPUS-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, clinical social
workers, and certified marriage and family therapists; and pastoral and
mental health counselors under a physician's supervision. No payment
will be made for any service listed in paragraph (c)(3)(ix)(A) of this
section rendered by an individual who does not meet the criteria of
Sec. 199.6 for his or her respective profession, regardless of whether
the provider is an independent professional provider or an employee of
an authorized professional or institutional provider.
(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, OCHAMPUS, or a designee.
(5) Psychological testing and assessment. Psychological testing and
assessment is generally limited to six hours of testing in a fiscal year
when medically or psychologically necessary and in conjunction with
otherwise covered psychotherapy. Testing or assessment in excess of
these limits requires review for medical necessity. Benefits will not be
provided for the Reitan-Indiana battery when administered to a patient
under age five, for self-administered tests administered to patients
under age 13, or for psychological testing and assessment as part of an
assessment for academic placement.
(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, OCHAMPUS.
[[Page 112]]
(8) Collateral visits. Covered collateral visits are those that are
medically or psychologically necessary for the treatment of the patient
and, as such, are considered as a psychotherapy session for purposes of
paragraph (c)(3)(ix)(B) of this section.
(B) Limitations and review requirements--(1) Outpatient
psychotherapy. Outpatient psychotherapy generally is limited to a
maximum of two psychotherapy sessions per week, in any combination of
individual, family, conjoint, collateral, or group sessions. Before
benefits can be extended for more than two outpatient psychotherapy
sessions per week, professional review of the medical or psychological
necessity for and appropriateness of the more intensive therapy is
required.
(2) Inpatient psychotherapy. Coverage of inpatient psychotherapy is
based on medical or psychological necessity for the services identified
in the patient's treatment plan. As a general rule, up to five
psychotherapy sessions per week are considered appropriate when
specified in the treatment as necessary to meet certain measurable/
observable goals and objectives. Additional sessions per week or more
than one type of psychotherapy sessions performed on the same day (for
example, an individual psychotherapy session and a family psychotherapy
session on the same day) could be considered for coverage, depending on
the medical or psychological necessity for the services. Benefits for
inpatient psychotherapy will end automatically when authorization has
been granted for the maximum number of inpatient mental health days in
accordance with the limits as described in this section, unless
additional coverage is granted by the Director, OCHAMPUS or a designee.
(C) Covered ancillary therapies. Includes art, music, dance,
occupational, and other ancillary therapies, when included by the
attending provider in an approved inpatient, residential treatment plan
and under the clinical supervision of a licensed doctoral level 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,
OCHAMPUS, 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;
(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.
[[Page 113]]
(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 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
[[Page 114]]
(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 of this Regulation.
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. For example, durable medical
equipment and cardiorespiratory monitors can only be ordered by a
physician.
(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 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 medical equipment--(A) Scope of benefit.Subject to the
exceptions in paragraphs (B) and (C) below, only durable medical
equipment (DME) which is ordered by a physician for the specific use of
the beneficiary, and which complies with the definition of ``Durable
Medical Equipment'' in Sec. 199.2 of this part, and which is not
otherwise excluded by this Regulation qualifies as a Basic Program
benefit.
(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
(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.
[[Page 115]]
(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) Basic mobility equipment exception. A wheelchair, or a CHAMPUS-
approved alternative, which is medically necessary to provide basic
mobility, including reasonable additional cost for medically necessary
modifications to accommodate a particular disability, may be cost-shared
as durable medical equipment.
(D) Exclusions. DME which is otherwise qualified as a benefit is
excluded as a benefit under the following circumstances:
(1) DME for a beneficiary who is a patient in a type of facility
that ordinarily provides the same type of DME item to its patients at no
additional charge in the usual course of providing its services.
(2) DME which is available to the beneficiary from a Uniformed
Services Medical Treatment Facility.
(3) DME with deluxe, luxury, or immaterial features which increase
the cost of the item to the government relative to a similar item
without those features.
(E) Basis for reimbursement. The cost of DME may be shared by the
CHAMPUS based upon the price which is 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 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 the Treasury.
(iii) Medical supplies and dressings (consumables). 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 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 following a
mastectomy is considered a medical supply item.
Note: 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 not 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.
(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 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
[[Page 116]]
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) Prescription drugs and medicines. Prescription drugs and
medicines that by United States law require a physician's or other
authorized individual professional provider's prescription (acting
within the scope of their license) and that are ordered or prescribed by
a physician or other authorized individual professional provider (except
that insulin is covered for a known diabetic, even though a prescription
may not be required for its purchase) in connection with an otherwise
covered condition or treatment, including 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.
(vii) Prosthetic devices. The purchase of prosthetic devices is
limited to those determined by the Director, OCHAMPUS to be necessary
because of significant conditions resulting from trauma, congenital
anomalies, or disease.
(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.
(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
[[Page 117]]
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.
(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) Treatment of substance use disorders. Emergency and inpatient
hospital care for complications of alcohol and drug abuse or dependency
and detoxification are covered as for any other medical condition.
Specific coverage for the treatment of substance use disorders includes
detoxification, rehabilitation, and outpatient care provided in
authorized substance use disorder rehabilitation facilities.
(i) Emergency and inpatient hospital services. Emergency and
inpatient hospital services are covered when medically necessary for the
active medical treatment of the acute phases of substance abuse
withdrawal (detoxification), for stabilization, and for treatment of
medical complications of substance use disorders. Emergency and
inpatient hospital services are considered medically necessary only when
the patient's condition is such that the personnel and facilities of a
hospital are required. Stays provided for substance use disorder
rehabilitation in a hospital-based rehabilitation facility are covered,
subject to the provisions of paragraph (e)(4)(ii) of this section.
Inpatient hospital services also are subject to the provisions regarding
the limit on inpatient mental health services.
(ii) Authorized substance use disorder treatment. Only those
services provided
[[Page 118]]
by CHAMPUS-authorized institutional providers are covered. Such a
provider must be either an authorized hospital, or an organized
substance use disorder treatment program in an authorized free-standing
or hospital-based substance use disorder rehabilitation facility.
Covered services consist of any or all of the services listed below. A
qualified mental health provider (physicians, clinical psychologists,
clinical social workers, psychiatric nurse specialists) (see paragraph
(c)(3)(ix) of this section) shall prescribe the particular level of
treatment. Each CHAMPUS beneficiary is entitled to three substance use
disorder treatment benefit periods in his or her lifetime, unless this
limit is waived pursuant to paragraph (e)(4)(v) of this section. (A
benefit period begins with the first date of covered treatment and ends
365 days later, regardless of the total services actually used within
the benefit period. Unused benefits cannot be carried over to subsequent
benefit periods. Emergency and inpatient hospital services (as described
in paragraph (e)(4)(i) of this section) do not constitute substance
abuse treatment for purposes of establishing the beginning of a benefit
period.)
(A) Rehabilitative care. Rehabilitative care in a authorized
hospital or substance use disorder rehabilitative facility, whether
free-standing or hospital-based, is covered on either a residential or
partial care (day or night program) basis. Coverage during a single
benefit period is limited to no more than inpatient stay (exclusive of
stays classified in DRG 433) in hospitals subject to CHAMPUS DRG-based
payment system or 21 days in a DRG-exempt facility for rehabilitation
care, unless the limit is waived pursuant to paragraph (e)(4)(v) of this
section. If the patient is medically in need of chemical detoxification,
but does not require the personnel or facilities of a general hospital
setting, detoxification services are covered in addition to the
rehabilitative care, but in a DRG-exempt facility detoxification
services are limited to 7 days unless the limit is waived pursuant to
paragraph (e)(4)(v) of this section. The medical necessity for the
detoxification must be documented. Any detoxification services provided
by the substance use disorder rehabilitation facility must be under
general medical supervision.
(B) Outpatient care. Outpatient treatment provided by an approved
substance use disorder rehabilitation facility, whether free-standing or
hospital-based, is covered for up to 60 visits in a benefit period,
unless the limit is waived pursuant to paragraph (e)(4)(v) of this
section.
(C) Family therapy. Family therapy provided by an approved substance
use disorder rehabilitation facility, whether free-standing or hospital-
based, is covered for up to 15 visits in a benefit period, unless the
limit is waived pursuant to paragraph (e)(4)(v) of this section.
(iii) Exclusions--(A) Aversion therapy. 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.
(iv) Confidentialty. Release of any patient identifying information,
including that required to adjudicate a claim, must comply with the
provisions of section 544 of the Public Health Service Act, as amended,
(42 U.S.C. 290dd-3), which governs the release of medical and other
information from the records of patients undergoing treatment of
substance abuse. If the patient refuses to authorize the release of
medical records which are, in the opinion of the Director, OCHAMPUS, or
a designee, necessary to determine benefits on a claim for treatment of
substance abuse the claim will be denied.
(v) Waiver of benefit limits. The specific benefit limits set forth
in paragraphs (e)(4)(ii) of this section may be waived by the Director,
OCHAMPUS in special cases based on a determination that all of the
following criteria are met:
(A) Active treatment has taken place during the period of the
benefit limit and substantial progress has been made according to the
plan of treatment.
[[Page 119]]
(B) Further progress has been delayed due to the complexity of the
illness.
(C) Specific evidence has been presented to explain the factors that
interfered with further treatment progress during the period of the
benefit limit.
(D) The waiver request includes specific time frames and a specific
plan of treatment which will complete the course of treatment.
(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
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
[[Page 120]]
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) Transsexualism or such other conditions as gender dysphoria. All
services and supplies directly or indirectly related to transsexualism
or such other conditions as gender dysphoria are excluded under CHAMPUS.
This exclusion includes, but is not limited to, psychotherapy,
prescription drugs, and intersex surgery that may be provided in
connection with transsexualism or such other conditions as gender
dysphoria. There is only one very limited exception to this general
exclusion, that is, notwithstanding the definition of congenital
anomaly, CHAMPUS benefits may be extended for surgery and related
medically necessary services performed to correct sex gender confusion
(that is, ambiguous genitalia) which has been documented to be present
at birth.
(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 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 the purposes of CHAMPUS, dental
congenital anomalies such as absent tooth buds or malocclusion
specifically are
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excluded. Also excluded are any procedures related to transsexualism or
such other conditions as gender dysphoria, except as provided in
paragraph (e)(7) of this section.
(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.
(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) Any procedures related to transsexualism or such other
conditions as gender dysphoria except as provided in paragraph (e)(7) of
this section.
(Q) Penile implant procedure for psychological impotency,
transsexualism, or such other conditions as gender dysphoria.
(R) Insertion of prosthetic testicles for transsexualism, or such
other conditions as gender dysphoria.
(9) Complications (unfortunate sequelae) resulting from noncovered
initial surgery or treatment. Benefits are available for otherwise
covered services and supplies required in the treatment of complications
resulting from a noncovered incident of treatment (such as nonadjunctive
dental care, transsexual surgery, and 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 procedures related to the
complication that essentially is similar to the initial noncovered 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 or repair of a prolapsed vagina in
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a biological male who had undergone transsexual surgery.
(10) Dental. CHAMPUS does not include a dental 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.
(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, OCHAMPUS, or a
designee, in accordance with paragraph (a)(11) 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
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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 currenty 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 hospital admission
is approved and thus qualifies for institutional benefits, the
professional service related to the nonadjunctive dental care is not
covered.
(11) Drug abuse. Under the Basic Program, benefits may be extended
for medically necessary prescripion drugs required in the treatment of
an illness or injury or in connection with maternity care (refer to
paragraph (d) of this section). However, CHAMPUS benefits cannot be
authorized to support of 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.
(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) Drug maintenance programs excluded. Drug maintenance programs
when one addictive drug is substituted for another on a maintenance
basis (such as methadone substituted for heroin) are not covered. This
exclusion applies even in areas outside the United States where
addictive drugs are dispensed legally by physicians on a maintenance
dosage level.
(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.
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(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, 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) Custodial care. The statute under which CHAMPUS operates
specifically excludes custodial care. Many beneficiaries and sponsors
misunderstand what is meant by custodial care, assuming that because
custodial care is not covered, it implies the custodial care is not
necessary. This is not the case; it only means the care being provided
is not a type of care for which CHAMPUS benefits can be extended.
(i) Kinds of conditions that can result in custodial care. There is
no absolute rule that can be applied. With most conditions, there is a
period of active treatment before custodial care, some much more
prolonged than others. Examples of potential custodial care cases may be
a spinal cord injury resulting in extensive paralysis, a severe cerebral
vascular accident, multiple sclerosis in its latter stages, or presenile
and senile dementia. These conditions do not result necessarily in
custodial care but are indicative of the types of conditions that
sometimes do. It is not the condition itself that is controlling, but
whether the care being rendered falls within the definition of custodial
care (refer to Sec. 199.2 of this part for the definition of
``custodial care'').
(ii) Benefits available in connection with a custodial care case.
CHAMPUS benefits are not available for services related to a custodial
care case, with the following specific exceptions:
(A) Prescription drugs and medicines, medical supplies and durable
medical equipment. Benefits are payable for otherwise covered
prescription drugs and medicines, medical supplies and durable medical
equipment.
(B) Nursing services, limited. Recognizing that even though the care
being received is determined primarily to be custodial, an occasional
specific skilled nursing service may be required. When it is determined
such skilled nursing services are needed, benefits may be extended for
one hour of nursing care per day.
(C) Physician services, limited. Recognizing that even though the
care being received is determined primarily to be custodial, occasional
physician monitoring may be required to maintain the
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patient's condition. When it is determined that a patient is receiving
custodial care, benefits may be extended for up to twelve physician
visits per calendar year for the custodial condition (not to exceed one
per month).
Note: CHAMPUS benefits may be extended for additional physician
visits related to the treatment of a condition other than the condition
for which the patient is receiving custodial care (an example is a
broken leg as a result of a fall).
(D) Payment for prescription drugs, medical supplies, durable
medical equipment and limited skilled nursing and physician services
does not affect custodial care determination. The fact that CHAMPUS
extends benefits for prescription drugs, medical supplies, durable
medical equipment, and limited skilled nursing and physician services in
no way affects the custodial care determination if the case otherwise
falls within the definition of custodial care.
(iii) Exception to custodial care exclusion, admission to a
hospital. CHAMPUS benefits may be extended for otherwise covered
services or supplies directly related to a medically necessary admission
to an acute care general or special hospital (as defined in paragraph
(b)(4)(i), section 199.6 of this part), if the care is at the
appropriate level and meets other requirements of this Regulation.
(iv) Reasonable care for which benefits were authorized or
reimbursed before June 1, 1977. It is recognized that care for which
benefits were authorized or reimbursed before the implementation date of
DoD 6010.8-R may be excluded under the custodial care limitations set
forth in the Regulation. Therefore, an exception to the custodial care
limitations set forth in this part exists whereby reasonable care for
which benefits authorized or reimbursed under the Basic Program before
June 1, 1977, shall continue to be authorized even though the care would
be excluded as a benefit under the custodial care limitations of the DoD
6010.8-R. Continuation of CHAMPUS benefits in such cases is limited as
follows:
(A) Initial authorization or reimbursement before June 1, 1977. The
initial CHAMPUS authorization or reimbursement for the care occurred
before June 1, 1977; and,
(B) Continued care. The care has been continuous since the initial
CHAMPUS authorization or reimbursement; and,
(C) Reasonable care. The care is reasonable. CHAMPUS benefits shall
be continued for reasonable care up to the same level of benefits and
for the same period of eligibility authorized or reimbursed before June
1, 1977. Care that is excessive or otherwise unreasonable will be
reduced or eliminated from the continued care authorized under this
exception.
(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 an alcoholic who is not responsible
enough to care for the child, or because someone in the home has a
contagious disease, are examples of domiciliary care 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-
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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.
(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 CHAMPUS morbid obesity benefit is limited
to the gastric bypass, gastric stapling, or gastroplasty method.
(i) Conditions for coverage. Payment may be extended for the gastric
bypass, gastric stapling, or gastroplasty method only when one of the
following conditions is met:
(A) The patient is 100 pounds over the ideal weight for height and
bone structure and has an associated severe medical condition. These
associated medical conditions are diabetes mellitus, hypertension,
cholecystitis, narcolepsy, pickwickian syndrome (and other severe
respiratory disease), hypothalmic disorders, and severe arthritis of the
weight-bearing joints.
(B) The patient is 200 percent or more of the ideal weight for
height and bone structure. An associated medical condition is not
required for this category.
(C) The patient has had an intestinal bypass or other surgery for
obesity and, because of complications, requires a second surgery (a
takedown). The surgeon in many cases, will do a gastric bypass, gastric
stapling, 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.
(ii) Exclusions. (A) CHAMPUS payment may not be made for nonsurgical
treatment of obesity or morbid obesity, for dietary control, or weight
reduction.
(B) CHAMPUS payment may not be made for surgical procedures other
than the gastric bypass, gastric stapling, or gastroplasty, even if
morbid obesity is present.
(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,
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or a hospital-based outpatient birthing room.
(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.
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Patients diagnosed with chronic stable angina are limited to one
treatment episode (36 sessions) in a calendar year.
(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
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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 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/
episodes of care. The terminally ill beneficiary may elect to receive
hospice benefits for an initial period of 90 days, a subsequent period
of 90 days, a second subsequent period of 30 days, and a final period of
unlimited duration.
(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
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written certifications within two calendar days, it must obtain oral
certifications within two calendar days, and written certifications no
later than 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.
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(C) The beneficiary must waive all rights to other CHAMPUS payments
for the duration of the election period for:
(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) Case management services. As part of case management for
beneficiaries with complex medical or psychological conditions, payment
for services or supplies not otherwise covered by the basic CHAMPUS/
TRICARE program may be authorized when they are provided in accordance
with Sec. 199.4(i). Waiver of benefit limits/exclusions to the basic
CHAMPUS/TRICARE program may be cost shared where it is demonstrated that
the absence of such services would result in the exacerbation of an
existing extraordinary condition, as defined in Sec. 199.2, to the
extent that frequent or extensive services are required; and such
services are a cost effective alternative to the Basic CHAMPUS program.
(21) Home health services. Home health services are covered when
furnished by, or under arrangement with, a home health agency (HHA) that
participates
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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;
(D) Part-time or intermittent services of a home health aide who has
successfully completed a training program approved by the Director TMA;
(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
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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) 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.
(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 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 fiscal 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 fiscal year.
(2) Family Deductible: The total deductible amount for all members
of a family with the same sponsor during one fiscal 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 fiscal year.
(2) Family Deductible: The total deductible amount for all members
of a family with the same sponsor during one fiscal 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 fiscal
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 fiscal 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 famiy fiscal 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 fiscal year deductible being applied. However,
this second deductible may be reimbursed once
[[Page 134]]
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 fiscal year deductible for dependents of a Reserve
Component member who is called or ordered to active duty for a period of
more than 30 days but less than one year or a National guard member who
is called or ordered to full-time federal National guard duty for a
period of more than 30 days but less than one year, 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 as defined in paragraphs (b)(2)(ii)(A) through (F) and
(b)(2)(ii)(H)(1), (2) and (4) of Part 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 of the part), 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
fiscal 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.
(D) Inpatient cost-sharing for mental health services. For care
provided on or after October 1, 1995, the inpatient cost-sharing for
mental health services
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is $20 per day for each day of the inpatient admission. This $20 per day
cost sharing amount applies to admissions to any hospital for mental
health services, any residential treatment facility, any substance abuse
rehabilitation facility, and any partial hospitalization program
providing mental health or substance use disorder rehabilitation
services.
(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 fiscal
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) Psychiatric partial hospitalization services. Institutional and
professional services provided under the psychiatric partial
hospitalization program authorized by paragraph (b)(10) of this section
shall be cost shared as inpatient services.
(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 fiscal year deductible for outpatient services or
supplies. The annual fiscal year deductible for otherwise covered
outpatient services or supplies provided former members and dependents
of former members is the same as the annual fiscal 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. Cost-sharing amounts for inpatient
services shall be as follows:
(A) Services subject to the CHAMPUS DRG-based payment system. The
cost-share shall be the lesser of: an amount calculated by multiplying a
per diem amount by the total number of days in the hospital stay except
the day of discharge; or 25 percent of the hospital's billed charges.
The per diem amount shall be calculated so that, in the aggregate, the
total cost-sharing amounts for these beneficiaries is equivalent to 25
percent of the CHAMPUS-determined allowable costs for covered services
or supplies provided on an inpatient basis by authorized providers. The
per diem amount shall be published annually by OCHAMPUS.
(B) Services subject to the CHAMPUS mental health per diem payment
system. The cost-share is dependent upon whether the hospital is paid a
hospital-specific per diem or a regional per diem under the provisions
of Sec. 199.14(a)(2). With respect to care paid for on the basis of a
hospital specific per diem, the cost-share shall be 25% of the hospital-
specific per diem amount. For care paid for on the basis of a regional
per diem, the cost share shall be the lower of a fixed daily amount or
25% of the hospital's billed charges. The fixed daily amount shall be 25
percent of the per diem adjusted so that total beneficiary cost shares
will equal 25 percent of total payments under the mental health per diem
payment system. These fixed daily amount shall be updated annually and
published in the Federal Register along with the per diems published
pursuant to Sec. 199.14(a)(2)(iv)(B).
(C) Other services. For services exempt from the CHAMPUS DRG-based
payment system and the CHAMPUS mental health per diem payment system and
services provided by institutions other than hospitals, 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 fiscal 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.
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(iv) Psychiatric partial hospitalization services. Institutional and
professional services provided under the psychiatric partial
hospitalization program authorized by paragraph (b)(10) of this section
shall be cost shared as inpatient services.
(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 fiscal 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 fiscal 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 fiscal 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(i),
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-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(i).
(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
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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. Fiscal
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 fiscal year.
(ii) All other beneficiaries. For all other categories of
beneficiary families (including those eligible under CHAMPVA) the fiscal
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 fiscal year, CHAMPUS will pay
allowable amounts for remaining covered services through the end of that
fiscal 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.
(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)
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
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a designee. For cost-sharing provisions refer to Sec. 199.14, paragraph
(f)(3).
(7) Custodial care. Custodial care except as otherwise specifically
provided in paragraphs (e)(12) (ii), (iii), and (iv) of this section.
(8) Domiciliary care. Inpatient stays primarily for domiciliary care
purposes.
(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 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.
(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 can also consider coverage of unlabeled or off-label uses of
drugs that are Food and Drug Administration (FDA) approved drugs that
are used for indications or treatments not included in the approved
labeling. Approval for reimbursement of unlabeled or off-label uses
requires review for medical necessity, and also requires demonstrations
from medical literature, national organizations, or technology
assessment bodies that the unlabeled or off-label use of the drug 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
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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 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.
(iv) Examples of unproven drugs, devices or medical treatments or
procedures. This paragraph (g)(15)(iv) consists of a partial list of
unproven drugs, devices or medical treatment or procedures. These are
excluded from CHAMPUS program benefits. This list is not all inclusive.
Other unproven drugs, devices or medical treatments or procedures, are
similarly excluded, although they do not appear on this partial list.
This partial list will be reviewed and updated periodically as new
information becomes available. With respect to any procedure included on
this partial list, if and when the Director, OCHAMPUS determines that
based on reliable evidence (as defined in section 199.2) such procedure
has proven medical effectiveness, the Director will initiate action to
remove the procedure from this partial list of unproven drugs, devices
or medical treatment or procedures. From the date established by the
Director as the date the procedure has established proven medical
effectiveness until the date the regulatory change is made to remove the
procedures from the partial list of unproven drugs, devices or medical
treatment or procedures the Director, OCHAMPUS will suspend treatment of
the procedure as unproven drugs, devices, or medical treatments or
procedures. Following is the non-inclusive, partial list of unproven
drugs, devices or medical treatment or procedures, all of which are
excluded from CHAMPUS benefits:
(A) Radial keratotomy (refractive keratoplasty).
(B) Cellular therapy.
(C) Histamine therapy.
(D) Stem cell assay, a laboratory procedure which allows a
determination to be made of the type and dose of cancer chemotherapy
drugs to be used, based
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on in vitro analysis of their effects on cancer cells taken from an
individual.
(E) Topical application of oxygen.
(F) Immunotherapy for malignant disease, except when using drugs
approved by the FDA for this purpose.
(G) Prolotherapy, joint sclerotherapy, and ligamentous injections
with sclerosing agents.
(H) Transcervical block silicone plug.
(I) Whole body hyperthermia in the treatment of cancer.
(J) Portable nocturnal hypoglycemia detectors.
(K) Testosterone pellet implants in the treatment of females.
(L) Estradiol pellet implants.
(M) Epikeratophakia for treatment of aphakia and myopia.
(N) Bladder stimulators.
(O) Ligament replacement with absorbable copolymer carbon fiber
scaffold.
(P) Intraoperative radiation therapy.
(Q) Gastric bubble or balloon.
(R) Dorsal root entry zone (DREZ) thermocoagulation or
micorcoagulation neurosurgical procedure.
(S) Brain electrical activity mapping (BEAM).
(T) Topographic brain mapping (TBM) procedure.
(U) Ambulatory blood pressure monitoring.
(V) Bilateral carotoid body resection to relieve pulmonary system.
(W) Intracavitary administration of cisplatin for malignant disease.
(X) Cervicography.
(Y) In-home uterine activity monitoring for the purpose of
preventing preterm labor and/or delivery.
(Z) Sperm evaluation, hamster penetration test.
(AA) Transfer factor (TF).
(BB) Continuous ambulatory esophageal pH monitoring (CAEpHM) is
considered unproven for patients under age 12 for all indications, and
for patients over age 12 for sleep apnea.
(CC) Adrenal-to-brain transplantation for Parkinson's disease.
(DD) Videofluoroscopy evaluation in speech pathology.
(EE) Applied kinesiology.
(FF) Hair analysis to identify mineral deficiencies from the
chemical composition of the hair. Hair analysis testing may be
reimbursed when necessary to determine lead poisoning.
(GG) Iridology (links flaws in eye coloration with disease elsewhere
in the body).
(HH) Small intestinal bypass (jejunoileal bypass) for treatment of
morbid obesity.
(II) Biliopancreatic bypass.
(JJ) Gastric wrapping/gastric banding.
(KK) Calcium EAP/calcium orotate and selenium (also known as Nieper
therapy)--Involves inpatient care and use of calcium compounds and other
non-FDA approved drugs and special diets. Used for cancer, heart
disease, diabetes, and multiple sclerosis.
(LL) Percutaneous balloon valvuloplasty for mitral and tricuspid
valve stenosis.
(MM) Amniocentesis performed for ISO immunization to the ABO blood
antigens.
(NN) Balloon dilatation of the prostate.
(OO) Helium in radiosurgery.
(PP) Electrostimulation of salivary production in the treatment of
xerostomia secondary to Sjogren's syndrome.
(QQ) Intraoperative monitoring of sensory evoked potentials (SEP).
To include visually evoked potentials, brainstem auditory evoked
response, somatosensory evoked potentials during spinal and orthopedic
surgery, and sensory evoked potentials monitoring of the sciatic nerve
during total hip replacement. Recording SEPs in unconscious head injured
patients to assess the status of the somatosensory system. The use of
SEPs to define conceptional or gestational age in preterm infants.
(RR) Autolymphocyte therapy (ALT) (immunotherapy used for treating
metastatic kidney cancer patients).
(SS) Radioimmunoguided surgery in the detection of cancer.
(TT) Gait analysis (also known as a walk study or electrodynogram)
(UU) Use of cerebellar stimulators/pacemakers for the treatment of
neurologic disorders.
(VV) Signal-averaged ECG.
(WW) Peri-urethal Teflon injections to manage urinary incontinence.
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(XX) Extraoperative electrocorticography for stimulation and
recording
(YY) Quantitative computed tomography (QCT) for the detection and
monitoring of osteoporosis.
(ZZ) [Reserved]
(AAA) Percutaneous transluminal angioplasty in the treatment of
obstructive lesions of the carotoid, vertebral and cerebral arteries.
(BBB) Endoscopic third ventriculostomy.
(CCC) Holding therapy--Involves holding the patient in an attempt to
achieve interpersonal contact, and to improve the patient's ability to
concentrate on learning tasks.
(DDD) In utero fetal surgery.
(EEE) Light therapy for seasonal depression (also known as seasonal
affective disorder (SAD)).
(FFF) Dorsal column and deep brain electrical stimulation of
treatment of motor function disorder.
(GGG) Chelation therapy, except with products and for indications
approved by the FDA.
(HHH) All organ transplants except heart, heart-lung, lung, kidney,
some bone marrow, liver, liver-kidney, corneal, heart-valve, and kidney-
pancreas transplants for Type I diabetics with chronic renal failure who
require kidney transplants.
(III) Implantable infusion pumps, except for treatment of
spasticity, chronic intractable pain, and hepatic artery perfusion
chemotherapy for the treatment of primary liver cancer or metastic
colorectal liver cancer.
(JJJ) Services related to the candidiasis hypersensitivity syndrome,
yeast syndrome, or gastrointestinal candidiasis (i.e., allergenic
extracts of Candida albicans for immunotherapy and/or provocation/
neutralization).
(KKK) Treatment of chronic fatigue syndrome.
(LLL) Extracorporeal immunoadsorption using protein A columns for
conditions other than acute idopathic thrombocytopenia purpura.
(MMM) Dynamic posturography (both static and computerized).
(NNN) Laparoscopic myomectomy.
(OOO) Growth factor, including platelet-derived growth factors, for
treating non-healing wounds. This includes Procurene[reg], a platelet-
derived wound-healing formula.
(PPP) High dose chemotherapy with stem cell rescue (HDC/SCR) for any
of the following malignancies:
(1) Breast cancer, except for metastic breast cancer that has
relapsed after responding to a first line treatment.
(2) Ovarian cancer.
(3) Testicular cancer.
(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
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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.
(27) Dental care. Dental care or oral surgery, except as
specifically provided in paragraph (e)(10) of this section.
(28) Obesity, weight reduction. Services and supplies related to
obesity or weight reduction whether surgical or nonsurgical; wiring of
the jaw or any procedure of similar purpose, regardless of the
circumstances under which performed; except that benefits may be
provided for the gastric bypass, gastric stapling, or gastroplasty
procedures in connection with morbid obesity as provided in paragraph
(e)(15) of this section.
(29) Transsexualism or such other conditions as gender dysphoria.
Services and supplies related to transsexualism or such other conditions
as gender dysphoria (including, but not limited, to intersex surgery,
psychotherapy, and prescription drugs), except as specifically provided
in paragraph (e)(7) of this section.
(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. Preventive care, such as routine, annual, or
employment-requested physical examinations; routine screening
procedures; except that the following are not excluded:
(i) Well-child care.
(ii) Immunizations for individuals age six and older, as recommended
by the CDC.
(iii) Rabies shots.
(iv) Tetanus shot following an accidental injury.
(v) Rh immune globulin.
(vi) Genetic tests as specified in paragraph (e)(3)(ii) of this
section.
(vii) Immunizations and physical examinations provided when required
in the case of dependents of active duty military personnel who are
traveling outside the United States as a result of an active duty
member's assignment and such travel is being performed under orders
issued by a Uniformed Service.
(viii) Screening mammography for asymptomatic women 40 years of age
and older, and for high risk women 35 years of age and older, when
provided under the terms and conditions contained in the guidelines
adopted by the
[[Page 143]]
Deputy Assistant Secretary of Defense, Health Services Financing.
(ix) Cancer screening Papanicolaou (PAP) test for women who are at
risk for sexually transmissible diseases, women who have or have had
multiple sexual partners (or if their partner has or has had multiple
sexual partners), women who smoke cigarettes, and women 18 years of age
and older when provided under the terms and conditions contained in the
guidelines adopted by the Deputy Assistant Secretary of Defense, Health
Services Financing.
(x) Other cancer screenings authorized by 10 U.S.C. 1079.
(xi) Health promotion and disease prevention visits (which may
include all of the services provided pursuant to Sec. 199.18(b)(2)) may
be provided in connection with immunizations and cancer screening
examinations authorized by paragraphs (g)(37)(ii) of this section or
(g)(37)(viii) through (x) of this section.
(xii) Physical examinations for beneficiaries ages 5 through 11 that
are required in connection with school enrollment, and that are provided
on or after October 30, 2000.
(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. Counseling services that are not medically
necessary in the treatment of a diagnosed medical condition: For
example, educational counseling, vocational counseling, nutritional
counseling, and counseling for socioeconomic purposes, diabetic self-
education programs, stress management, lifestyle modification, etc.
Services provided by a certified marriage and family therapist, pastoral
or mental health counselor in the treatment of a mental disorder are
covered only as specifically provided in Sec. 199.6. Services provided
by alcoholism rehabilitation counselors are covered 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.
(40) Acupuncture. Acupuncture, whether used as a therapeutic agent
or as an anesthetic.
(41) Hair transplants, wigs, or hairpieces.
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.
(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 devices. Exercise equipment, spas,
whirlpools, hot tubs, swimming pools, health club membership 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.
[[Page 144]]
(45) Audiologist, speech therapist. Services of an audiologist or
speech therapist, except when prescribed by a physician and rendered as
a part of treatment addressed to the physical defect itself and not to
any educational or occupational deficit.
(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) and (c)(3)(xi)
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.
(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
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.
(58) Enuretic. Enuretic conditioning programs, but enuretic alarms
may be cost-shared when determined to be medically necessary in the
treatment of enuresis.
(59) [Reserved]
(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) Noncovered condition, unauthorized provider. All services and
supplies (including inpatient institutional costs) related to a
noncovered condition or treatment, or provided by an unauthorized
provider.
(64) Comfort or convenience. Personal, comfort, or convenience items
such as beauty and barber services, radio, television, and telephone.
[[Page 145]]
(65) ``Stop smoking'' programs. Services and supplies related to
``stop smoking'' regimens.
(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) Inpatient mental health services. Effective for care received
on or after October 1, 1991, services in excess of 30 days in any fiscal
year (or in an admission), in the case of a patient nineteen years of
age or older, 45 days in any fiscal year (or in an admission) in the
case of a patient under 19 years of age, or 150 days in any fiscal year
(or in an admission) in the case of inpatient mental health services
provided as residential treatment care, unless coverage for such
services is granted by a waiver by the Director, OCHAMPUS, or a
designee. In cases involving the day limitations, waivers shall be
handled in accordance with paragraphs (b)(8) or (b)(9) of this section.
For services prior to October 1, 1991, services in excess of 60 days in
any calendar year unless additional coverage is granted by the Director,
OCHAMPUS, or a designee.
(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. The same
reconsideration and appeals procedures that apply to day limit waivers
shall also apply to decisions regarding requested waivers of the
economic interest exclusion. However, a provider may appeal a
reconsidered determination that an economic relationship constitutes an
economic interest within the scope of the exclusion to the same extent
that a provider may appeal determinations under Sec. 199.15(i)(3). This
exclusion does not apply to services under the Program for Persons with
Disabilities (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.
(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.
[[Page 146]]
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.
(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.
[[Page 147]]
(vi) Preadmission authorization was available but not requested, or
concurrent review requirements were not followed.
(i) Case management program. (1) In general. Case management, as it
applies to this program, provides a collaborative process among the case
manager, beneficiary, primary caregiver, professional health care
providers and funding sources to meet the medical needs of an individual
with an extraordinary condition. It is designed to promote quality and
cost-effective outcomes through assessment, planning, implementing,
monitoring and evaluating the options and services required. Payment for
services or supplies limited or not otherwise covered by the basic
TRICARE/CHAMPUS program may be authorized when they are provided in
accordance with paragraph (i) of this section. Waiver of benefit limits/
exclusions may be cost-shared where it is demonstrated that the absence
of such services would result in the exacerbation of an existing
extraordinary condition, as defined in Sec. 199.2, to the extent that
such services are a cost-effective alternative to the basic TRICARE/
CHAMPUS program.
(2) Applicability of case management program. A CHAMPUS eligible
beneficiary may participate in the case management program if he/she has
an extraordinary condition, which is disabling and requires extensive
utilization of TRICARE resources. The medical or psychological condition
must also:
(i) Be contained in the latest revision of the International
Classification of Diseases Clinical Modification, or the Diagnostic and
Statistical Manual of Mental Disorders;
(ii) Meet at least one of the following:
(A) Demonstrate a prior history of high CHAMPUS costs in the year
immediately preceding eligibility for the case management program; or
(B) Require clinically appropriate services or supplies from
multiple providers to address an extraordinary condition; and
(iii) Can be treated more appropriately and cost effectively at a
less intensive level of care.
(3) Prior authorization required. Services or supplies allowable as
a benefit exception under this Section shall be cost-shared only when a
beneficiary's entire treatment has received prior authorization through
an individual case management program.
(4) Cost effective requirement. Treatment must be determined to be
cost effective by comparison to alternative treatment that would
otherwise be required or when compared to existing reimbursement
methodology. Treatment must meet the requirements of appropriate medical
care as defined in Sec. 199.2.
(5) Limited waiver of exclusions and limitations. Limited waivers of
exclusions and limitations normally applicable to the basic program may
be granted for specific services or supplies only when a beneficiary's
entire treatment has received prior authorization through the individual
case management program described in paragraph (i) of this section. The
Director, OCHAMPUS may grant a patient-specific waiver of benefit limits
for services or supplies in the following categories, subject to the
waiver requirements of this section.
(i) Durable equipment. The cost of a device or apparatus which does
not qualify as Durable Medical Equipment (as defined in Sec. 199.2) or
back-up durable medical equipment may be shared when determined by the
Director, OCHAMPUS to be cost-effective and clinically appropriate.
(ii) Custodial care. The cost of services or supplies rendered to a
beneficiary that would otherwise be excluded as custodial care (as
defined in Sec. 199.2) may be cost-shared for a maximum lifetime period
of 365 days when determined by the Director, OCHAMPUS, to be cost
effective and clinically appropriate. To qualify for a waiver of benefit
limits of custodial care, the patient must meet all eligibility
requirements of paragraph (i) of this section, including that the
absence of the waived services would result in the exacerbation of an
existing extraordinary condition. In addition:
(A) The proposed treatment must be cost effective and clinically
appropriate as determined by the individual
[[Page 148]]
case manager. For example, the treatment would be determined to be cost
effective by comparison to alternative care that would otherwise be
required or when compared to existing reimbursement methodology.
(B) For patients receiving care at home, there must be a primary
caregiver or the patient is capable of self-support.
(iii) Domiciliary care. The cost of services or supplies rendered to
be a beneficiary what would otherwise be excluded as domiciliary care
(as defined in Sec. 199.2) may be shared when determined by the
Director, OCHAMPUS to be cost effective and clinically appropriate.
Waivers for domiciliary care are subject to the same requirements as
paragraphs (i)(5)(ii) of this section.
(iv) In home services. The cost of the following in-home services
may be shared when determined by the Director, OCHAMPUS to be cost
effective and clinically appropriate: nursing care, physical,
occupational, speech therapy, medical social services, intermittent or
part-time services of a home health aide, beneficiary transportation
required for treatment plan implementation, and training for the
beneficiary and primary caregiver sufficient to allow them to assume all
feasible responsibility for the care of the beneficiary that will
facilitate movement of the beneficiary to the least resource-intensive,
clinically appropriate setting. (Qualifications for home health aides
shall be based on the standards at 42 CFR 848.36.)
(6) Case management acknowledgment. The beneficiary, or
representative, and the primary caregiver shall sign a case management
acknowledgment as a prerequisite to prior authorization of case
management services. The acknowledgment shall include, in part, all of
the following provisions:
(i) The right to participate fully in the development and ongoing
assessment of the treatment;
(ii) That all health care services for which TRICARE/CHAMPUS cost
sharing is sought shall be authorized by the case manager prior to their
delivery;
(iii) That there are limitations in scope and duration of the
planned case management treatment, including provisions to transition to
other arrangements; and
(iv) The conditions under which case management services are
provided, including the requirement that the services must be cost
effective and clinically appropriate;
(v) That a beneficiary's participation in the case management
program shall be discontinued for any of the following reasons:
(A) The loss of TRICARE/CHAMPUS eligibility;
(B) A determination that the services or supplies provided are not
cost effective or clinically appropriate;
(C) The beneficiary, or representative, and/or primary caregiver,
terminates participation in writing;
(D) The beneficiary and/or primary caregiver's failure to comply
with requirements in this paragraph (i); or
(E) A determination that the beneficiary's condition no longer meets
the requirements of participation as described in paragraph (i) of this
section.
(7) Other administrative requirements. (i) Qualified providers of
services or items not covered under the basic program, or who are not
otherwise eligible for TRICARE/CHAMPUS authorized status, may be
authorized for a time-limited period when such authorization is
essential to implement the planned treatment under case management. Such
providers must not be excluded or suspended as a CHAMPUS provider, must
hold Medicare or state certification or licensure appropriate to the
service, and must agree to participate on all claims related to the case
management treatment.
(ii) Retrospective requests for authorization of waiver of benefit
limits/exclusions will not be considered. Authorization of waiver of
benefit limits/exclusions is allowed only after all other options for
services or supplies have been considered and either appropriately
utilized or determined to be clinically inappropriate and/or not cost-
effective.
(iii) Experimental or investigational treatment or procedures shall
not be cost-shared as an exception to standard benefits under this part.
(iv) TRICARE/CHAMPUS case management services may be provided by
[[Page 149]]
contractors designated by the Director, OCHAMPUS.
[51 FR 24008, July 1, 1986]
Editorial Notes: 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 on GPO Access.
Sec. 199.5 Program for Persons with Disabilities (PFPWD).
(a) General. This PFPWD provides financial assistance for certain
CHAMPUS beneficiaries who are moderately or severely mentally retarded,
or seriously physically disabled. The PFPWD is not intended to be a
stand alone benefit.
(1) Purpose. The primary purpose of the PFPWD is to assist in
reducing the disabling effects of a PFPWD qualifying condition.
(2) Benefit source election. A PFPWD beneficiary (or sponsor or
guardian acting on behalf of the beneficiary) may elect to use the
provisions of either this section, or the provisions of Sec. 199.4, for
a specific service or item which is allowable by both sections.
(i) Election limitation. No amount for authorized, or otherwise
allowed, PFPWD services or items remaining after the maximum PFPWD
benefit dollar amount has been reached in a given month may be cost-
shared through the provisions of Sec. 199.4.
(ii) Election change. A beneficiary (or sponsor or guardian acting
on behalf of the beneficiary) shall have the right to request the
Director, OCHAMPUS, or designee, to allow PFPWD cost-shared services or
items otherwise allowable as a benefit of Sec. 199.4, and which were
rendered after the catastrophic loss protection provision applicable to
Sec. 199.4 was in effect for a given PFPWD beneficiary's sponsor, to be
readjudicated according to the provisions of Sec. 199.4. The Director,
OCHAMPUS, or designee, shall allow readjudication when the sponsor's
family's CHAMPUS benefit year cost-share liability would be reduced by
such readjudication. Such requests are subject to the claims filing
deadline provisions of Sec. 199.7. The determination regarding
readjudication is conclusive and may not be appealed.
(3) Application required. A beneficiary shall establish PFPWD
eligibility as a prerequisite to authorization or payment of any PFPWD
benefits. Subsequent review of the PFPWD qualifying condition to confirm
continued eligibility shall be made in accordance with the prognosis for
a change in severity such that the condition would not likely continue
to be a PFPWD qualifying condition.
(4) Benefit authorization. To establish whether a requested service
or item is a PFPWD benefit, the beneficiary (or sponsor or guardian
acting on the behalf of the beneficiary) shall provide such information
about how the requested benefit will contribute to confirming,
arresting, or reducing the disabling effects of the qualifying condition
as the Director, OCHAMPUS, or designee, determines necessary for benefit
adjudication.
(i) Written authorization. The Director, OCHAMPUS, or designee, may
require written authorization for any PFPWD category or type of service
or item as a prerequisite for adjudication of related claims.
(ii) Format. An authorization issued by the Director, OCHAMPUS, 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 a PFPWD service or item
shall not exceed twelve consecutive months.
(iv) Authorization waiver. The Director, OCHAMPUS, or designee,
shall waive the requirement for a written CHAMPUS authorization for
rendered PFPWD services or items that, except for the absence of the
written CHAMPUS authorization, would be allowable as a PFPWD benefit.
(v) Public facility use. A PFPWD beneficiary residing within a
State, as defined in Sec. 199.2, must demonstrate that a public
facility, as defined in Sec. 199.2, funds, except funds administered
under a State plan for medical assistance under Title XIX of the Social
Security Act (Medicaid) is not available or adequate, as defined in
Sec. 199.2, to meet the qualifying condition related need.
[[Page 150]]
(A) Equipment repair or maintenance for beneficiary owned equipment
shall be considered not available when the equipment is a type allowable
as a benefit.
(B) A beneficiary shall not be required to change the provider of
public facility funded therapy when public facility funding is depleted
during that beneficiary's course of therapy and when such a change is
determined by the Director, OCHAMPUS, or designee, to be clinically
contraindicated. When contraindicated, other public facilities for the
therapy shall not be considered adequate for the beneficiary.
(5) Public facility use certification. Written certification, in
accord with information requirements, formats, and procedures
established by the Director, OCHAMPUS, or designee that requested PFPWD
services or items cannot be obtained from public facilities because the
services or items are not available, or if available, are not adequate,
is a prerequisite for PFPWD benefit payment.
(i) A Military Treatment Facility (MTF) Commander, or designee, may
make such certification for a beneficiary residing within a defined
geographic area.
(ii) An administrator of a public facility, or designee, may make
such certification for a beneficiary residing within the service area of
that public facility.
(iii) 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.
(iv) The Director, OCHAMPUS, or designee, may determine, on a case-
by-case basis, that apparent public facility availability for a
requested type of service or item can not be substantiated for a
specific beneficiary's request for PFPWD benefits and is not available.
(A) A case-specific determination shall be 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, OCHAMPUS, or designee determines to be material to the
determination.
(B) A case-specific determination of public facility availability by
the Director, OCHAMPUS, or designee, is conclusive, and is not
appealable.
(v) The requirements of this paragraph (a)(5) notwithstanding, no
Public Facility Use Certification is required for medical services and
items that are provided under Part C of the Individuals with
Disabilities Education Act in accordance with the Individualized Family
Service Plan and that are otherwise allowable under the CHAMPUS Basic
Program or the PFPWD.
(6) Equipment. (i) An item of equipment shall not be authorized when
such authorization would allow concurrent PFPWD cost-sharing of more
than one item of the same type of equipment for the same beneficiary.
(ii) Reasonable repairs and maintenance shall be allowable for any
beneficiary owned equipment otherwise allowable by this section.
(7) Implementing instructions. The Director, OCHAMPUS, or designee
shall issue policies, instructions, procedures, guidelines, standards,
and criteria necessary to assure the quality and efficiency of services
and items furnished as a PFPWD benefit and to otherwise accomplish the
purpose of the PFPWD.
(i) Other requirements. All provisions of this part, except the
provisions of Sec. 199.4, apply to the PFPWD unless otherwise provided
by this section.
(ii) Continuity of eligibility. A CHAMPUS beneficiary who has an
outstanding Program for the Handicapped (PFTH) benefit authorization
during the 30 calendar day period immediately prior to the effective
date of the Program for Persons with Disabilities (PFPWD) shall be
deemed to have a PFPWD qualifying condition for the duration of the
period during which the beneficiary is otherwise eligible for PFPWD and
the beneficiary continues to meet the applicable PFTH qualifying
condition criteria.
(b) Eligibility--(1) Spouse or child. PFPWD benefits are limited to
a CHAMPUS eligible child or spouse, but not a former spouse, except as
provided
[[Page 151]]
in paragraph (b)(1)(ii) of this section, of:
(i) Active duty sponsor. An active duty member of one of the
Uniformed Services as determined in accordance with the provisions of
Sec. 199.3; or
(ii) Former member sponsor. After November 13, 1986, a former member
of a Uniformed Service, when the qualifying condition is the result of,
or has been exacerbated by, an injury or illness resulting from physical
or emotional abuse; or
(iii) Deceased sponsor. A CHAMPUS beneficiary remains eligible for
benefits under the PFPWD:
(A) For a period of three calendar years from the date an active
duty sponsor dies; or
(B) Through midnight of the beneficiary's twenty-first birthday when
the beneficiary is receiving PFPWD benefits at the time the active duty
sponsor dies and the sponsor was eligible, at the time of death, for
receipt of hostile-fire pay or died as a result of a disease or injury
incurred while eligible for such pay.
(2) Loss of PFPWD eligibility. Eligibility for PFPWD 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) of this section expires; or
(iii) Eligibility based upon the deceased sponsor provisions of
paragraph (b)(1) of this section expires; or
(iv) The Director, OCHAMPUS, or designee, determines that the
beneficiary no longer has a qualifying condition.
(3) Qualifying condition--(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 is a PFPWD qualifying condition.
(ii)Serious physical disability. A serious physical disability as
defined in Sec. 199.2, is a PFPWD qualifying condition.
(iii) Infant/toddler. For CHAMPUS beneficiaries under the age of
three years with a diagnosed neuromuscular developmental condition or
Down syndrome, or other condition that can to a reasonable medical
probability be expected to precede a diagnosis of moderate or severe
mental retardation or be characterized as a serious physical disability
before the age of seven, the Director, OCHAMPUS, or designee, shall
establish criteria for PFPWD eligibility in lieu of the requirements of
paragraph (b)(3)(i) or paragraph (b)(3)(ii) of this section.
(iv) Multiple disabilities. The cumulative disabling effect shall be
used in the adjudication of a qualifying condition determination when an
applicant has two or more disabilities involving separate body systems.
(c) Benefit. Items or services which the Director, OCHAMPUS, or
designee, has determined to be intrinsic to the following benefit
categories and has determined to be capable of confirming, arresting, or
reducing the severity of the disabling effects of a qualifying
condition, generally or in a specific case, and which are not otherwise
excluded by this PFPWD, may be allowed.
(1) Diagnostic procedures to establish a qualifying condition
diagnosis or to measure the extent of functional loss.
(2) Treatment through the use of such medical, habilitative, or
rehabilitative methods, techniques, therapies and equipment which
otherwise meet the requirements of this PFPWD. Treatment includes, but
is not limited to, prosthetic devices, orthopedic braces, and orthopedic
appliances. Otherwise allowable treatment may be rendered in-home, or as
inpatient or outpatient care as appropriate.
(3) Training when required to allow the use of an assistive
technology device or to acquire skills which are expected to assist the
beneficiary to reduce the disabling effects of a qualifying condition
and for parents (or guardian) and siblings of a PFPWD beneficiary when
required as an integral part of the management of the qualifying
condition.
(4) Special education instruction, other than training specifically
designed to
[[Page 152]]
accommodate the disabling effects of a qualifying condition.
(5) Institutional care within a State, as defined in Sec. 199.2,
when the severity of the qualifying condition requires protective
custody or training in a residential environment.
(6) Transportation when required to convey the PFPWD beneficiary to
or from a facility or institution to receive otherwise allowable
services or items. Transportation for a medical attendant may be
approved when medically necessary for the safe transport of the PFPWD
eligible beneficiary.
(7) Adjunct services--(i) Assistive services. Services of a
qualified interpreter or translator for PFPWD beneficiaries who are
deaf, readers for PFPWD beneficiaries who are blind, and personal
assistants for PFPWD beneficiaries with other types of qualifying
conditions, when such services are not directly related to the rendering
or delivery of service or item otherwise an allowable PFPWD benefit.
(ii) Equipment adaptation. The allowable equipment purchase shall
encompass such services and structural modification to the equipment as
necessary to make the equipment serviceable for a particular disability.
(iii) Equipment maintenance. Reasonable repairs and maintenance for
that portion of the useful life of beneficiary owned equipment that is
concurrent with the beneficiary's PFPWD eligibility.
(d) Exclusions--(1) Inpatient acute care for medical or surgical
treatment of an acute illness, or of an acute exacerbation of the
qualifying condition, is excluded.
(2) Structural alterations to living space and permanent fixtures
attached thereto, including alterations necessary to accommodate
installation of equipment, or to facilitate entrance or exit, are
excluded.
(3) Homemaker, sitter, or companion services, except as
institutional care of adjunct services, which predominantly provide
assistance with daily living activities or accomplish household chores
or provide companionship or provide supervision or observation, or any
combination of these functions, are excluded.
(4) Dental care or orthodontic treatment is excluded.
(5) Nondomestic travel which originates or terminates outside of a
State, as defined in Sec. 199.2, is excluded.
(6) Deluxe travel accommodation price differential between the price
for a type of accommodation which provides services or features which
exceed the requirements of the beneficiary's condition for safe
transport and the price for a type of accommodation without those deluxe
features, is excluded.
(7) Equipment. Exclusions for durable medical equipment at Sec.
199.4(d)(3)(ii)(D) apply to all PFPWD allowable equipment.
(8) Medical devices. Prosthetic devices and medical equipment which
do not meet the benefit requirements of Sec. 199.4 are excluded.
(9) No obligation to pay. Services or items for which the
beneficiary or sponsor has no legal obligation to pay, or for which no
charge would be made if the beneficiary was not eligible for the
CHAMPUS, 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, 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).
(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 drugs, devices, and medical treatments or
procedures.Services and items whose safety and efficacy have not been
established as described in Sec. 199.4 are unproven and cannot be cost-
shared by CHAMPUS.
(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 that are not otherwise a legitimate
PFPWD benefit are excluded.
[[Page 153]]
(15) Excursions. Additional or special charges for excursions, other
than otherwise allowable transportation, are excluded even though part
of a program offered by an approved provider.
(16) Drugs and medicines. Drugs and medicines which do not meet the
benefit requirements of Sec. 199.4 are excluded.
(17) Therapeutic absences. Therapeutic absences from an inpatient
facility are excluded.
(e) Cost-share liability--(1) No deductible.PFPWD benefits are not
subject to a deductible amount.
(2)(i) Sponsor cost-share liability. Regardless of the number of
PFPWD eligible family members, the sponsor's cost share for allowed
PFPWD benefits in a given month is according to the following table:
------------------------------------------------------------------------
Monthly
Member's pay grade share
------------------------------------------------------------------------
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 will be applied, up to the amount
given in the table in paragraph (e)(2)(i), to the first allowed charges
in any given month. The government's share will be paid, up to the
maximum amount(s) specified in paragraphs (e)(3) and (e)(4) of this
section for allowed charges after the sponsor's cost-share has been
applied.
(3) Government cost-share liability: member who sponsors one PFPWD
beneficiary. The total government share of the cost of all PFPWD
benefits provided in a given month to a beneficiary who is the sponsor's
only PFPWD eligible family member may not exceed $1,000 after
application of the allowable payment methodology. Any amount remaining
after the Government's maximum share has been reached is the
responsibility of the active duty sponsor.
(4) Government cost-share liability: member who sponsors more than
one PFPWD beneficiary. The total government share of the cost of all
PFPWD allowable benefits provided in a given month to a beneficiarywho
is one of two or more PFPWD eligible family members of the same sponsor
shall be determined as follows:
(i) Maximum benefit limit determination for the first PFPWD eligible
beneficiary. The $1,000 maximum monthly government PFPWD benefit amount
shall apply only to the beneficiary incurring the least amount of
allowable PFPWD expense in a given month, after application of the
allowable payment methodology. If two or more PFPWD eligible
beneficiaries have the same amount of allowable PFPWD expenses in a
given month, the $1,000 maximum benefit in that month shall apply to
only one PFPWD eligible beneficiary.
(ii) Maximum benefit limit determination for the remaining PFPWD
eligible beneficiaries. After application of the Government's cost-share
specified in paragraph (e)(4)(i) of this section, the government shall
cost-share the entire remaining amount for all allowable services and
items received in that month by the remaining PFPWD eligible
beneficiaries.
(f) Benefit payment--(1) Equipment. The allowable amount for
equipment shall be calculated in the same manner as durable medical
equipment allowable through Sec. 199.4.
(2) Transportation. The allowable amount for transportation 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 nonspecialized transport cannot accommodate the beneficiary's
disability related needs, or when specialized transport is more
economical than nonspecialized transport. When transport is by private
vehicle, the allowable amount is limited to the Federal government
employee mileage reimbursement rate in effect on the trip date.
(3) Proration of equipment expense. The PFPWD beneficiary (or
sponsor or guardian acting on the beneficiary's behalf) may, only at the
time of the request for authorization of equipment, specify that the
allowable cost of the
[[Page 154]]
equipment be prorated. Equipment expense proration permits the allowable
cost of an item of PFPWD authorized equipment to be apportioned so that
no portion of the allowable cost exceeds the monthly benefit limit and
allows each apportioned amount to be separately authorized as a benefit
during subsequent contiguous months.
(i) Maximum period. The maximum number of contiguous months during
which a prorated amount may be authorized for cost-share shall be the
lesser of:
(A) The number of months calculated by dividing the initial
allowable cost for the item of equipment by $1,000 and doubling the
resulting quotient; or
(B) The number of months of useful equipment life for the requesting
beneficiary, as determined by the Director, OCHAMPUS, or designee.
(ii) Cost-share. A cost-share is applicable in any month in which a
prorated amount is authorized, subject to the cost-share provisions for
a sponsor with two or more PFPWD eligible beneficiaries.
(iii) Termination. Prorated payments shall be terminated as of the
first day of the month following the death of a beneficiary or as of the
effective date of a beneficiary's loss of PFPWD eligibility for any
other reason.
(4) For-profit institutional care provider. Institutional care
provided by a for-profit entity may be allowed only when the care for a
specific PFPWD beneficiary:
(i) Is contracted for by a public facility, as defined in Sec.
199.2, as a part of a publicly funded long-term inpatient care program;
and
(ii) Is provided based upon the PFPWD 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 CHAMPUS
eligibility; and
(v) Produces a PFPWD beneficiary cost-share liability that does not
exceed the maximum charge by the provider to the public facility for the
contracted level of care.
(g) Implementing instructions. The Director, OCHAMPUS, or a
designee, shall issue CHAMPUS policies, instructions, procedures,
guidelines, standards, and criteria as may be necessary to implement the
intent of this section.
[62 FR 35093, June 30, 1997, as amended at 62 FR 42904, Aug. 11, 1997;
66 FR 9655, Feb. 9, 2001; 67 FR 18827, Apr. 17, 2002]
Sec. 199.6 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
[[Page 155]]
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 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
[[Page 156]]
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 SNR 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 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.
[[Page 157]]
(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 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
[[Page 158]]
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 necesssary to implement the intent of this
section.
(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
[[Page 159]]
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 (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-particpating 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
[[Page 160]]
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 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 the JCAHO Accreditation Manual for Hospitals (AMH)
standards in order for their services to be cost-shared under CHAMPUS.
In the case of those psychiatric hospitals that are not JCAHO-accredited
because they have not been in operation a sufficient period of time to
be eligible to request an accreditation survey by the JCAHO, the
Director, OCHAMPUS, 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 the JCAHO.
(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 the JCAHO
AMH standards, their medical records must be maintained in accordance
with the JCAHO Consolidated Standard Manual for Child, Adolescent, and
Adult Psychiatric, Alcoholism, and Drug Abuse Facilities and Facilities
Serving the Mentally Retarded, along with the requirements set forth in
Sec. 199.7(b)(3). The hospital is responsible for assuring that patient
services and all treatment
[[Page 161]]
are accurately documented and completed in a timely manner.
(v) Hospitals, long-term (tuberculosis, chronic care, or
rehabilitation). To be considered a long-term hospital, an institution
for patients that have tuberculosis or chronic diseases must be an
institution (or distinct part of an institution) primarily engaged in
providing by or under the supervision of a physician appropriate medical
or surgical services for the diagnosis and active treatment of the
illness or condition in which the institution specializes.
(A) In order for the service of long-term hospitals to be covered,
the hospital 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 CHAMPUS, they must be primarily for
the treatment of the presenting illness.
(B) Custodial or domiciliary care is not coverable under CHAMPUS,
even if rendered in an otherwise authorized long-term hospital.
(C) The controlling factor in determining whether a beneficiary's
stay in a long-term hospital is coverable by CHAMPUS 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
CHAMPUS benefits; not the type of provider or condition of the
beneficiary.
(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.
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\8\ Compiled and published by the National Fire Protection
Association, Batterymarch Park, Quincy, Massachusetts 02269.
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(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)).
[[Page 162]]
(vii) Residential treatment centers. This paragraph (b)(4)(vii)
establishes 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. 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 full range of diagnostic and therapeutic services
to establish and implement an effective plan of care which will reverse
life-threatening and/or severely incapacitating symptoms;
(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
chemical abuse or dependence; and
(vi) Facilities providing care for patients with a primary diagnosis
of mental retardation or developmental disability.
(2) Eligibility.
(i) Every RTC must be certified pursuant to CHAMPUS certification
standards. Such standards shall incorporate the basic standards set
forth in paragraphs (b)(4)(vii) (A) through (D) of this section, and
shall include such additional elaborative criteria and standards as the
Director, OCHAMPUS determines are necessary to implement the basic
standards.
(ii) To be eligible for CHAMPUS certification, the facility is
required to be licensed and fully operational for six months (with a
minimum average daily census of 30 percent of total bed capacity) and
operate in substantial compliance with state and federal regulations.
(iii) The facility is currently accredited by the Joint Commission
on Accreditation of Healthcare Organizations (JCAHO) under the current
edition of the Manual for Mental Health, Chemical Dependency, and Mental
Retardation/Developmental Disabilities Services which is available from
JCAHO, P.O. Box 75751, Chicago, IL 60675.
(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, OCHAMPUS.
(3) Governing body.
(i) The RTC shall have a governing body which is responsible for the
policies, bylaws, and activities of the facility. If the RTC is owned by
a partnership or single owner, the partners or single owner are regarded
as the governing body. The facility will provide an up-to-date list of
names, addresses, telephone numbers and titles of the members of the
governing body.
(ii) The governing body ensures appropriate and adequate services
for all patients and oversees continuing development and improvement of
care. Where business relationships exist between the governing body and
facility, appropriate conflict-of-interest policies are in place.
(iii) Board members are fully informed about facility services and
the governing body conducts annual review of its performance in meeting
purposes, responsibilities, goals and objectives.
(4) Chief executive officer. The chief executive officer, appointed
by and
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subject to the direction of the governing body, shall assume overall
administrative responsibility for the operation of the facility
according to governing body policies. The chief executive officer shall
have five years' administrative experience in the field of mental
health. On October 1, 1997, the CEO shall possess a degree in business
administration, public health, hospital administration, nursing, social
work, or psychology, or meeting similar educational requirements as
prescribed by the Director, OCHAMPUS.
(5) Clinical Director. The clinical director, appointed by the
governing body, shall be a psychiatrist or doctoral level psychologist
who meets applicable CHAMPUS requirements for individual professional
providers and is licensed to practice in the state where the residential
treatment center is located. The clinical director shall possess
requisite education and experience, credentials applicable under state
practice and licensing laws appropriate to the professional discipline,
and a minimum of five years' clinical experience in the treatment of
children and adolescents. The clinical director shall be responsible for
planning, development, implementation, and monitoring of all clinical
activities.
(6) Medical director. The medical director, appointed by the
governing body, shall be licensed to practice medicine in the state
where the residential treatment center is located and shall possess
requisite education and experience, including graduation from an
accredited school of medicine or osteopathy, an approved residency in
psychiatry and a minimum of five years clinical experience in the
treatment of children and adolescents. The Medical Director shall be
responsible for the planning, development, implementation, and
monitoring of all activities relating to medical treatment of patients.
If qualified, the Medical Director may also serve as Clinical Director.
(7) Medical or professional staff organization. The governing body
shall establish a medical or professional staff organization to assure
effective implementation of clinical privileging, professional conduct
rules, and other activities directly affecting patient care.
(8) Personnel policies and records. The RTC shall maintain written
personnel policies, updated job descriptions and personnel records to
assure the selection of qualified personnel and successful job
performance of those personnel.
(9) Staff development.The facility shall provide appropriate
training and development programs for administrative, professional
support, and direct care staff.
(10) Fiscal accountability. The RTC shall assure fiscal
accountability to applicable government authorities and patients.
(11) Designated teaching facilities. Students, residents, interns or
fellows providing direct clinical care are under the supervision of a
qualified staff member approved by an accredited university. The
teaching program is approved by the Director, OCHAMPUS.
(12) Emergency reports and records. The facility notifies OCHAMPUS
of any serious occurrence involving CHAMPUS beneficiaries.
(B) Treatment services.
(1) Staff composition.
(i) The RTC shall follow written plans which assure that medical and
clinical patient needs will be appropriately addressed 24 hours a day,
seven days a week by a sufficient number of fully qualified (including
license, registration or certification requirements, educational
attainment, and professional experience) health care professionals and
support staff in the respective disciplines. Clinicians providing
individual, group, and family therapy meet CHAMPUS requirements as
qualified mental health providers and operate within the scope of their
licenses. The ultimate authority for planning, development,
implementation, and monitoring of all clinical activities is vested in a
psychiatrist or doctoral level psychologist. The management of medical
care is vested in a physician.
(ii) The RTC shall ensure adequate coverage by fully qualified staff
during all hours of operation, including physician availability, other
professional staff coverage, and support staff in the respective
disciplines.
(2) Staff qualifications. The RTC will have a sufficient number of
qualified
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mental health providers, administrative, and support staff to address
patients' clinical needs and to coordinate the services provided. RTCs
which 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, provided the individual
works under the clinical supervision of a fully qualified mental health
provider employed by the RTC. All other program services shall be
provided by trained, licensed staff.
(3) Patient rights.
(i) The RTC shall provide adequate protection for all patient
rights, including rights provided by law, privacy, personnel rights,
safety, confidentiality, informed consent, grievances, and personal
dignity.
(ii) The facility has a written policy regarding patient abuse and
neglect.
(iii) Facility marketing and advertising meets professional
standards.
(4) Behavioral management. The RTC shall adhere to a comprehensive,
written plan of behavioral management, developed by the clinical
director and the medical or professional staff and approved by the
governing body, including strictly limited procedures to assure that the
restraint or seclusion are used only in extraordinary circumstances, are
carefully monitored, and are fully documented. Only trained and
clinically privileged RNs or qualified mental health professionals may
be responsible for the implementation of seclusion and restraint
procedures in an emergency situation.
(5) Admission process. The RTC shall maintain written policies and
procedures to ensure that, prior to an admission, a determination is
made, and approved pursuant to CHAMPUS preauthorization requirements,
that the admission is medically and/or psychologically necessary and the
program is appropriate to meet the patient's needs. Medical and/or
psychological necessity determinations shall be rendered by qualified
mental health professionals who meet CHAMPUS requirements for individual
professional providers and who are permitted by law and by the facility
to refer patients for admission.
(6) Assessments. The professional staff of the RTC shall complete a
current multidisciplinary assessment which includes, but is not limited
to physical, psychological, developmental, family, educational, social,
spiritual and skills assessment of each patient admitted. Unless
otherwise specified, all required clinical assessments are completed
prior to development of the multidisciplinary treatment plan.
(7) Clinical formulation. A qualified mental health professional of
the RTC will complete a clinical formulation on all patients. The
clinical formulation will be reviewed and approved by the responsible
individual professional provider and will incorporate significant
findings from each of the multidisciplinary assessments. It will provide
the basis for development of an interdisciplinary treatment plan.
(8) Treatment planning. A qualified mental health professional shall
be responsible for the development, supervision, implementation, and
assessment of a written, individualized, interdisciplinary plan of
treatment, which shall be completed within 10 days of admission and
shall include individual, measurable, and observable goals for
incremental progress and discharge. A preliminary treatment plan is
completed within 24 hours of admission and includes at least an
admission note and orders written by the admitting mental health
professional. The master treatment plan is reviewed and revised at least
every 30 days, or when major changes occur in treatment.
(9) Discharge and transition planning. The RTC shall maintain a
transition planning process to address adequately the anticipated needs
of the patient prior to the time of discharge. The planning involves
determining necessary modifications in the treatment plan, facilitating
the termination of treatment, and identifying resources to maintain
therapeutic stability following discharge.
(10) Clinical documentation. Clinical records shall be maintained on
each patient to plan care and treatment and provide ongoing evaluation
of the patient's progress. All care is documented
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and each clinical record contains at least the following: demographic
data, consent forms, pertinent legal documents, all treatment plans and
patient assessments, consultation and laboratory reports, physician
orders, progress notes, and a discharge summary. All documentation will
adhere to applicable provisions of the JCAHO and requirements set forth
in Sec. 199.7(b)(3). An appropriately qualified records administrator
or technician will supervise and maintain the quality of the records.
These requirements are in addition to other records requirements of this
part, and documentation requirements of the Joint Commission on
Accreditation of Healthcare Organizations.
(11) Progress notes. RTC's shall document the course of treatment
for patients and families using progress notes which provide information
to review, analyze, and modify the treatment plans. Progress notes are
legible, contemporaneous, sequential, signed and dated and adhere to
applicable provisions of the Manual of Mental Health, Chemical
Dependency, and Mental Retardation/Development Disabilities Services and
requirements set forth in Sec. 199.7(b)(3).
(12) Therapeutic services.
(i) Individual, group, and family psychotherapy are provided to all
patients, consistent with each patient's treatment plan, by qualified
mental health providers.
(ii) A range of therapeutic activities, directed and staffed by
qualified personnel, are offered to help patients meet the goals of the
treatment plan.
(iii) Therapeutic educational services are provided or arranged that
are appropriate to the patients educational and therapeutic needs.
(13) Ancillary services. A full range of ancillary services is
provided. Emergency services include policies and procedures for
handling emergencies with qualified personnel and written agreements
with each facility providing the service. Other ancillary services
include physical health, pharmacy and dietary services.
(C) Standards for physical plant and environment.
(1) Physical environment. The buildings and grounds of the RTC shall
be maintained so as to avoid health and safety hazards, be supportive of
the services provided to patients, and promote patient comfort, dignity,
privacy, personal hygiene, and personal safety.
(2) Physical plant safety. The RTC shall be of permanent
construction and maintained in a manner that protects the lives and
ensures the physical safety of patients, staff, and visitors, including
conformity with all applicable building, fire, health, and safety codes.
(3) Disaster planning. The RTC shall maintain and rehearse written
plan for taking care of casualities and handling other consequences
arising from internal and external disasters.
(D) Standards for evaluation system.
(1) Quality assessment and improvement. The RTC shall develop and
implement a comprehensive quality assurance and quality improvement
program that monitors the quality, efficiency, appropriateness, and
effectiveness of the care, treatments, and services it provides for
patients and their families, primarily utilizing explicit clinical
indicators to evaluate all functions of the RTC and contribute to an
ongoing process of program improvement. The clinical director is
responsible for developing and implementing quality assessment and
improvement activities throughout the facility.
(2) Utilization review. The RTC shall implement a utilization review
process, pursuant to a written plan approved by the professional staff,
the administration, and the governing body, that assesses the
appropriateness of admission, continued stay, and timeliness of
discharge as part of an effort to provide quality patient care in a
cost-effective manner. Findings of the utilization review process are
used as a basis for revising the plan of operation, including a review
of staff qualifications and staff composition.
(3) Patient records review. The RTC shall implement a process,
including monthly reviews of a representative sample of patient records,
to determine the completeness and accuracy of the patient records and
the timeliness and pertinence of record entries, particularly with
regard to regular recording of progress/non-progress in treatment.
[[Page 166]]
(4) Drug utilization review. The RTC shall implement a comprehensive
process for the monitoring and evaluating of the prophylactic,
therapeutic, and empiric use of drugs to assure that medications are
provided appropriately, safely, and effectively.
(5) Risk management. The RTC shall implement a comprehensive risk
management program, fully coordinated with other aspects of the quality
assurance and quality improvement program, to prevent and control risks
to patients and staff and costs associated with clinical aspects of
patient care and safety.
(6) Infection control. The RTC shall implement a comprehensive
system for the surveillance, prevention, control, and reporting of
infections acquired or brought into the facility.
(7) Safety. The RTC shall implement an effective program to assure a
safe environment for patients, staff, and visitors, including an
incident report system, a continuous safety surveillance system, and an
active multidisciplinary safety committee.
(8) Facility evaluation. The RTC annually evaluates accomplishment
of the goals and objectives of each clinical program and service of the
RTC and reports findings and recommendations to the governing body.
(E) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(vii), of this section in
order 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. Participation agreements
entered into prior April 6, 1995 must be renewed not later than October
1, 1995. 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 impatient 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, OCHAMPUS;
(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,
OCHAMPUS, 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 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 provisions of
paragraph (b)(4)(vii) of this section establishing standards for
Residential Treatment Centers;
(ii) It has conducted a self assessment of the facility's compliance
with the CHAMPUS Standards for Residential Treatment Centers Serving
Children and Adolescents with Mental Disorders, as issued by the
Director, OCHAMPUS and notified the Director, OCHAMPUS 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
Residential Treatment Centers Serving Children and Adolescents with
Mental Disorders, as issued by the Director,
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OCHAMPUS, except for any such standards regarding which the facility
notifies the Director, OCHAMPUS 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 preauthorization,
concurrent care review, claims processing, beneficiary liability, double
coverage, utilization and quality review and other matters;
(11) Grant the Director, OCHAMPUS, 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 an authorized CHAMPUS RTC provider;
(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 General Accounting Office.
(F) Other requirements applicable to RTCs.
(1) Even though an RTC may qualify as a CHAMPUS-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 paragraph (b)(4) of that section.
(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, OCHAMPUS 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
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health program or health insurance plan is voluntary.
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
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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
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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 govening 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 partial hospitalization programs. Paragraph
(b)(4)(xii) of this section establishes standards and requirements for
psychiatric 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.
(2) Eligibility.
(i) Every psychiatric partial hospitalization program must be
certified pursuant to CHAMPUS certification standards. Such standards
shall incorporate the basic standards set forth in
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paragraphs (b)(4)(xii) (A) through (D) of this section, and shall
include such additional elaborative criteria and standards as the
Director, OCHAMPUS determines are necessary to implement the basic
standards. Each psychiatric partial hospitalization program must be
either a distinct part of an otherwise authorized institutional provider
or a freestanding program.
(ii) To be eligible for CHAMPUS certification, the facility is
required to be licensed and fully operational for a period of at least
six months (with a minimum patient census of at least 30 percent of bed
capacity) and operate in substantial compliance with state and federal
regulations.
(iii) The facility is currently accredited by the Joint Commission
on Accreditation of Healthcare Organizations under the current edition
of the Accreditation Manual for Mental Health, Chemical Dependency, and
Mental Retardation/Developmental Disabilities Services.
(iv) The facility has a written participation agreement with
OCHAMPUS. On October 1, 1995, 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,
OCHAMPUS. Partial hospitalization is capable of providing an
interdisciplinary program of medical and therapeutic services a minimum
of three hours per day, five days per week, and may include full- or
half-day, evening, and weekend treatment programs.
(3) Governing body.
(i) The PHP shall have a governing body which is responsible for the
policies, bylaws, and activities of the facilities. If the PHP is owned
by a partnership or single owner, the partners or single owner are
regarded as the governing body. The facility will provide an up-to-date
list of names, addresses, telephone numbers, and titles of the members
of the governing body.
(ii) The governing body ensures appropriate and adequate services
for all patients and oversees continuing development and improvement of
care. Where business relationships exist between the governing body and
facility, appropriate conflict-of-interest policies are in place.
(iii) Board members are fully informed about facility services and
the governing body conducts annual review of its performance in meeting
purposes, responsibilities, goals and objectives.
(4) Chief executive officer. The Chief Executive Officer, appointed
by and subject to the direction of the governing body, shall assume
overall administrative responsibility for the operation of the facility
according to governing body policies. The chief executive officer shall
have five years' administrative experience in the field of mental
health. On October 1, 1997, the CEO shall possess a degree in business
administration, public health, hospital administration, nursing, social
work, or psychology, or meet similar educational requirements as
prescribed by the Director, OCHAMPUS.
(5) Clinical Director. The clinical director, appointed by the
governing body, shall be a psychiatrist or doctoral level psychologist
who meets applicable CHAMPUS requirements for individual professional
providers and is licensed to practice in the state where the PHP is
located. The clinical director shall possess requisite education and
experience, credentials applicable under state practice and licensing
laws appropriate to the professional discipline, and a minimum of five
years' clinical experience in the treatment of mental disorders specific
to the ages and disabilities of the patients served. The clinical
director shall be responsible for planning, development, implementation,
and monitoring of all clinical activities.
(6) Medical director. The medical director, appointed by the
governing body, shall be licensed to practice medicine in the state
where the residential treatment center is located and shall possess
requisite education and experience, including graduation from an
accredited school of medicine or osteopathy, an approved residency in
psychiatry and a minimum of five years clinical experience in the
treatment of mental disorders specific to the ages and disabilities of
the patients served. The Medical Director shall be responsible for the
planning, development, implementation, and monitoring of all
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activities relating to medical treatment of patients. If qualified, the
Medical Director may also serve as Clinical Director.
(7) Medical or professional staff organization. The governing body
shall establish a medical or professional staff organization to assure
effective implementation of clinical privileging, professional conduct
rules, and other activities directly affecting patient care.
(8) Personnel policies and records. The PHP shall maintain written
personnel policies, updated job descriptions, personnel records to
assure the selection of qualified personnel and successful job
performance of those personnel.
(9) Staff development. The facility shall provide appropriate
training and development programs for administrative, professional
support, and direct care staff.
(10) Fiscal accountability. The PHP shall assure fiscal
accountability to applicable government authorities and patients.
(11) Designated teaching facilities. Students, residents, interns,
or fellows providing direct clinical care are under the supervision of a
qualified staff member approved by an accredited university. The
teaching program is approved by the Director, OCHAMPUS.
(12) Emergency reports and records. The facility notifies OCHAMPUS
of any serious occurrence involving CHAMPUS beneficiaries.
(B) Treatment services.
(1) Staff composition.
(i) The PHP shall ensure that patient care needs will be
appropriately addressed during all hours of operation by a sufficient
number of fully qualified (including license, registration or
certification requirements, educational attainment, and professional
experience) health care professionals. Clinicians providing individual,
group, and family therapy meet CHAMPUS requirements as qualified mental
health providers, and operate within the scope of their licenses. The
ultimate authority for managing care is vested in a psychiatrist or
licensed doctor level psychologist. The management of medical care is
vested in a physician.
(ii) The PHP shall establish and follow written plans to assure
adequate staff coverage during all hours of operation, including
physician availability, other professional staff coverage, and support
staff in the respective disciplines.
(2) Staff qualifications. The PHP will have a sufficient number of
qualified mental health providers, administrative, and support staff to
address patients' clinical needs and to coordinate the services
provided. PHPs which 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, provided the
individual works under the clinical supervision of a fully qualified
mental health provider employed by the PHP. All other program services
shall be provided by trained, licensed staff.
(3) Patient rights.
(i) The PHP shall provide adequate protection for all patient
rights, including rights provided by law, privacy, personal rights,
safety, confidentiality, informed consent, grievances, and personal
dignity.
(ii) The facility has a written policy regarding patient abuse and
neglect.
(iii) Facility marketing and advertising meets professional
standards.
(4) Behavioral management. The PHP shall adhere to a comprehensive,
written plan of behavior management, developed by the clinical director
and the medical or professional staff and approved by the governing
body, including strictly limited procedures to assure that restraint or
seclusion are used only in extraordinary circumstances, are carefully
monitored, and are fully documented. Only trained and clinically
privileged RNs or qualified mental health professionals may be
responsible for implementation of seclusion and restraint procedures in
an emergency situation.
(5) Admission process. The PHP shall maintain written policies and
procedures to ensure that prior to an admission, a determination is
made, and approved pursuant to CHAMPUS preauthorization requirements,
that
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the admission is medically and/or psychologically necessary and the
program is appropriate to meet the patient's needs. Medical and/or
psychological necessity determinations shall be rendered by qualified
mental health professionals who meet CHAMPUS requirements for individual
professional providers and who are permitted by law and by the facility
to refer patients for admission.
(6) Assessments. The professional staff of the PHP shall complete a
multidisciplinary assessment which includes, but is not limited to
physical health, psychological health, physiological, developmental,
family, educational, spiritual, and skills assessment of each patient
admitted. Unless otherwise specified, all required clinical assessment
are completed prior to development of the interdisciplinary treatment
plan.
(7) Clinical formulation. A qualified mental health provider of the
PHP will complete a clinical formulation on all patients. The clinical
formulation will be reviewed and approved by the responsible individual
professional provider and will incorporate significant findings from
each of the multidisciplinary assessments. It will provide the basis for
development of an interdisciplinary treatment plan.
(8) Treatment planning. A qualified mental health professional with
admitting privileges shall be responsible for the development,
supervision, implementation, and assessment of a written,
individualized, interdisciplinary plan of treatment, which shall be
completed by the fifth day following admission to a full-day PHP, or by
the seventh day following admission to a half-day PHP, and shall include
measurable and observable goals for incremental progress and discharge.
The treatment plan shall undergo review at least every two weeks, or
when major changes occur in treatment.
(9) Discharge and transition planning. The PHP shall develop an
individualized transition plan which addresses anticipated needs of the
patient at discharge. The transition plan involves determining necessary
modifications in the treatment plan, facilitating the termination of
treatment, and identifying resources for maintaining therapeutic
stability following discharge.
(10) Clinical documentation. Clinical records shall be maintained on
each patient to plan care and treatment and provide ongoing evaluation
of the patient's progress. All care is documented and each clinical
record contains at least the following: demographic data, consent forms,
pertinent legal documents, all treatment plans and patient assessments,
consultation and laboratory reports, physician orders, progress notes,
and a discharge summary. All documentation will adhere to applicable
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3).
An appropriately qualified records administrator or technician will
supervise and maintain the quality of the records. These requirements
are in addition to other records requirements of this part, and
documentation requirements of the Joint Commission on Accreditation of
Health Care Organization.
(11) Progress notes. PHPs shall document the course of treatment for
patients and families using progress notes which provide information to
review, analyze, and modify the treatment plans. Progress notes are
legible, contemporaneous, sequential, signed and dated and adhere to
applicable provisions of the Manual for Mental Health, Chemical
Dependency, and Mental Retardation/Developmental Disabilities Services
and requirements set forth in section 199.7(b)(3).
(12) Therapeutic services.
(i) Individual, group, and family therapy are provided to all
patients, consistent with each patient's treatment plan by qualified
mental health providers.
(ii) A range of therapeutic activities, directed and staffed by
qualified personnel, are offered to help patients meet the goals of the
treatment plan.
(iii) Educational services are provided or arranged that are
appropriate to the patient's needs.
(13) Ancillary services. A full range of ancillary services are
provided. Emergency services include policies and procedures for
handling emergencies with qualified personnel and written agreements
with each facility providing these services. Other ancillary services
include physical health, pharmacy and dietary services.
[[Page 174]]
(C) Standards for physical plant and environment.
(1) Physical environment. The buildings and grounds of the PHP shall
be maintained so as to avoid health and safety hazards, be supportive of
the services provided to patients, and promote patient comfort, dignity,
privacy, personal hygiene, and personal safety.
(2) Physical plant safety. The PHP shall be of permanent
construction and maintained in a manner that protects the lives and
ensures the physical safety of patients, staff, and visitors, including
conformity with all applicable building, fire, health, and safety codes.
(3) Disaster planning. The PHP shall maintain and rehearse written
plans for taking care of casualities and handling other consequences
arising from internal and external disasters.
(D) Standards for evaluation system.
(1) Quality assessment and improvement. The PHP shall develop and
implement a comprehensive quality assurance and quality improvement
program that monitors the quality, efficiency, appropriateness, and
effectiveness of care, treatments, and services the PHP provides for
patients and their families. Explicit clinical indicators shall be used
to be used to evaluate all functions of the PHP and contribute to an
ongoing process of program improvement. The clinical director is
responsible for developing and implementing quality assessment and
improvement activities throughout the facility.
(2) Utilization review. The PHP shall implement a utilization review
process, pursuant to a written plan approved by the professional staff,
the administration and the governing body, that assesses distribution of
services, clinical necessity of treatment, appropriateness of admission,
continued stay, and timeliness of discharge, as part of an overall
effort to provide quality patient care in a cost-effective manner.
Findings of the utilization review process are used as a basis for
revising the plan of operation, including a review of staff
qualifications and staff composition.
(3) Patient records. The PHP shall implement a process, including
regular monthly reviews of a representative sample of patient records,
to determine completeness, accuracy, timeliness of entries, appropriate
signatures, and pertinence of clinical entries. Conclusions,
recommendations, actions taken, and the results of actions are monitored
and reported.
(4) Drug utilization review. The PHP shall implement a comprehensive
process for the monitoring and evaluating of the prophylactic,
therapeutic, and empiric use of drugs to assure that medications are
provided appropriately, safely, and effectively.
(5) Risk management. The PHP shall implement a comprehensive risk
management program, fully coordinated with other aspects of the quality
assurance and quality improvement program, to prevent and control risks
to patients and staff, and to minimize costs associated with clinical
aspects of patient care and safety.
(6) Infection control. The PHP shall implement a comprehensive
system for the surveillance, prevention, control, and reporting of
infections acquired or brought into the facility.
(7) Safety. The PHP shall implement an effective program to assure a
safe environment for patients, staff, and visitors, including an
incident reporting system, disaster training and safety education, a
continuous safety surveillance system, and an active multidisciplinary
safety committee.
(8) Facility evaluation. The PHP annually evaluates accomplishment
of the goals and objectives of each clinical program component or
facility service of the PHP and reports findings and recommendations to
the governing body.
(E) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(xii) of this section, in
order for the services of a PHP to be authorized, the PHP 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. On October 1, 1995, 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
[[Page 175]]
by the Director, OCHAMPUS. 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, OCHAMPUS;
(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,
OCHAMPUS, 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 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 provisions of
paragraph (b)(4)(xii) of this section establishing standards for
psychiatric partial hospitalization programs;
(ii) It has conducted a self assessment of the facility's compliance
with the CHAMPUS Standards for Psychiatric Partial Hospitalization
Programs, as issued by the Director, OCHAMPUS, and notified the
Director, OCHAMPUS 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
Psychiatric Partial Hospitalization Programs, as issued by the Director,
OCHAMPUS, except for any such standards regarding which the facility
notifies the Director, OCHAMPUS that it is not in compliance.
(8) Designate an individual who will act as liaison for CHAMPUS
inquiries. The PHP shall inform OCHAMPUS 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, OCHAMPUS;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning preauthorization,
concurrent care review, claims processing, beneficiary liability, double
coverage, utilization and quality review and other matters;
(11) Grant the Director, OCHAMPUS, 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 an authorized CHAMPUS 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
[[Page 176]]
staff, contractors, board members, volunteers, and patients, as
required;
(v) Audits conducted by the United States General Account Office.
(F) Other requirements applicable to PHPs.
(1) Even though a PHP may qualify as a CHAMPUS-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 section 199.4 of this
part.
(2) The PHP shall provide patient services to CHAMPUS beneficiaries
in the same manner it provides inpatient services to all other patients.
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, OCHAMPUS 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:
(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.
[[Page 177]]
(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. Paragraph
(b)(4)(xiv) of this section establishes standards and requirements for
substance use order rehabilitation facilities (SUDRF). This includes
both inpatient rehabilitation centers for the treatment of substance use
disorders and partial hospitalization centers for the treatment of
substance use disorders.
(A) Organization and administration.
(1) Definition of inpatient rehabilitation center. An inpatient
rehabilitation center is a 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, medically monitored assessment, treatment, and evaluation.
An inpatient rehabilitation center is appropriate for patients whose
addiction-related symptoms, or concomitant physical and emotional/
behavioral problems reflect persistent dysfunction in several major life
areas. 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
(vi) Facilities that care for patients with the primary diagnosis of
mental retardation or developmental disability.
(2) Definition of partial hospitalization center for the treatment
of substance use disorders. A partial hospitalization center for the
treatment of substance use disorders is an addiction-focused service
that provides active treatment to adolescents between the ages of 13 and
18 or adults aged 18 and over. Partial hospitalization is a generic term
for day, evening, or weekend programs that treat patients with
psychoactive substance use disorders according to a comprehensive,
individualized, integrated schedule of care. A partial hospitalization
center is organized, interdisciplinary, and medically monitored. Partial
hospitalization is appropriate for those whose addiction-related
symptoms or concomitant physical and emotional/behavioral problems can
be managed outside the hospital environment for defined periods of time
with support in one or more of the major life areas.
(3) Eligibility.
(i) Every inpatient rehabilitation center and partial
hospitalization center for the treatment of substance use disorders must
be certified pursuant to CHAMPUS certification standards. Such standards
shall incorporate the basic standards set forth in paragraphs
(b)(4)(xiv) (A) through (D) of this section, and shall include such
additional elaborative criteria and standards as the Director, OCHAMPUS
determines are necessary to implement the basic standards.
(ii) To be eligible for CHAMPUS certification, the SUDRF is required
to be licensed and fully operational (with a minimum patient census of
the lesser of: six patients or 30 percent of bed capacity) for a period
of at least six months and operate in substantial compliance with state
and federal regulations.
(iii) The SUDRF is currently accredited by the Joint Commission on
Accreditation of Healthcare Organizations under the Accreditation Manual
[[Page 178]]
for Mental Health, Chemical Dependency, and Mental Retardation/
Developmental Disabilities Services, or by the Commission on
Accreditation of Rehabilitation Facilities as an alcoholism and other
drug dependency rehabilitation program under the Standards Manual for
Organizations Serving People with Disabilities, or other designated
standards approved by the Director, OCHAMPUS.
(iv) The SUDRF has a written participation agreement with OCHAMPUS.
On October 1, 1995, the SUDRF is not considered 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,
OCHAMPUS.
(4) Governing body.
(i) The SUDRF shall have a governing body which is responsible for
the policies, bylaws, and activities of the facility. If the SUDRF is
owned by a partnership or single owner, the partners or single owner are
regarded as the governing body. The facility will provide an up-to-date
list of names, addresses, telephone numbers and titles of the members of
the governing body.
(ii) The governing body ensures appropriate and adequate services
for all patients and oversees continuing development and improvement of
care. Where business relationships exist between the governing body and
facility, appropriate conflict-of-interest policies are in place.
(iii) Board members are fully informed about facility services and
the governing body conducts annual reviews of its performance in meeting
purposes, responsibilities, goals and objectives.
(5) Chief executive officer. The chief executive officer, appointed
by and subject to the direction of the governing body, shall assume
overall administrative responsibility for the operation of the facility
according to governing body policies. The chief executive officer shall
have five years' administrative experience in the field of mental health
or addictions. On October 1, 1997 the CEO shall possess a degree in
business administration, public health, hospital administration,
nursing, social work, or psychology, or meet similar educational
requirements as prescribed by the Director, OCHAMPUS.
(6) Clinical Director. The clinical director, appointed by the
governing body, shall be a qualified psychiatrist or doctoral level
psychologist who meets applicable CHAMPUS requirements for individual
professional providers and is licensed to practice in the state where
the SUDRF is located. The clinical director shall possess requisite
education and experience, including credentials applicable under state
practice and licensing laws appropriate to the professional discipline.
The clinical director shall satisfy at least one of the following
requirements: certification by the American Society of Addiction
Medicine; one year or 1,000 hours of experience in the treatment of
psychoactive substance use disorders; or is a psychiatrist or doctoral
level psychologist with experience in the treatment of substance use
disorders. The clinical director shall be responsible for planning,
development, implementation, and monitoring of all clinical activities.
(7) Medical director. The medical director, appointed by the
governing body, shall be licensed to practice medicine in the state
where the center is located and shall possess requisite education
including graduation from an accredited school of medicine or
osteopathy. The medical director shall satisfy at least one of the
following requirements: certification by the American Society of
Addiction Medicine; one year or 1,000 hours of experience in the
treatment of psychoactive substance use disorders; or is a psychiatrist
with experience in the treatment of substance use disorders. The medical
director shall be responsible for the planning, development,
implementation, and monitoring of all activities relating to medical
treatment of patients. If qualified, the Medical Director may also serve
as Clinical Director.
(8) Medical or professional staff organization. The governing body
shall establish a medical or professional staff organization to assure
effective implementation of clinical privileging, professional conduct
rules, and other activities directly affecting patient care.
[[Page 179]]
(9) Personnel policies and records. The SUDRF shall maintain written
personnel policies, updated job descriptions, personnel records to
assure the selection of qualified personnel and successful job
performance of those personnel.
(10) Staff development. The SUDRF shall provide appropriate training
and development programs for administrative, support, and direct care
staff.
(11) Fiscal accountability. The SUDRF shall assure fiscal
accountability to applicable government authorities and patients.
(12) Designated teaching facilities. Students, residents, interns,
or fellows providing direct clinical care are under the supervision of a
qualified staff member approved by an accredited university or approved
training program. The teaching program is approved by the Director,
OCHAMPUS.
(13) Emergency reports and records. The facility notifies OCHAMPUS
of any serious occurrence involving CHAMPUS beneficiaries.
(B) Treatment services.
(1) Staff composition.
(i) The SUDRF shall follow written plans which assure that medical
and clinical patient needs will be appropriately addressed during all
hours of operation by a sufficient number of fully qualified (including
license, registration or certification requirements, educational
attainment, and professional experience) health care professionals and
support staff in the respective disciplines. Clinicians providing
individual, group and family therapy meet CHAMPUS requirements as
qualified mental health providers and operate within the scope of their
licenses. The ultimate authority for planning, development,
implementation, and monitoring of all clinical activities is vested in a
psychiatrist or doctoral level clinical psychologist. The management of
medical care is vested in a physician.
(ii) The SUDRF shall establish and follow written plans to assure
adequate staff coverage during all hours of operation of the center,
including physician availability and other professional staff coverage
24 hours per day, seven days per week for an inpatient rehabilitation
center and during all hours of operation for a partial hospitalization
center.
(2) Staff qualifications. Within the scope of its programs and
services, the SUDRF has a sufficient number of professional,
administrative, and support staff to address the medical and clinical
needs of patients and to coordinate the services provided. SUDRFs 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 DRG, provided the individual works under the clinical
supervision of a fully qualified mental health provider employed by the
SUDRF.
(3) Patient rights.
(i) The SUDRF shall provide adequate protection for all patient
rights, safety, confidentiality, informed consent, grievances, and
personal dignity.
(ii) The SUDRF has a written policy regarding patient abuse and
neglect.
(iii) SUDRF marketing and advertising meets professional standards.
(4) Behavioral management. When a SUDRF uses a behavioral management
program, the center shall adhere to a comprehensive, written plan of
behavioral management, developed by the clinical director and the
medical or professional staff and approved by the governing body. It
shall be based on positive reinforcement methods and, except for
infrequent use of temporary physical holds or time outs, does not
include the use of restraint or seclusion. Only trained and clinically
privileged RNs or qualified mental health professionals may be
responsible for the implementation of seclusion and restraint in an
emergency situation.
(5) Admission process. The SUDRF shall maintain written policies and
procedures to ensure that, prior to an admission, a determination is
made, and approved pursuant to CHAMPUS preauthorization requirements,
that the admission is medically and/or psychologically necessary and the
program is appropriate to meet the patient's needs. Medical and/or
psychological necessity determinations shall be rendered by qualified
mental health
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professionals who meet CHAMPUS requirements for individual professional
providers and who are permitted by law and by the facility to refer
patients for admission.
(6) Assessment. The professional staff of the SUDRF shall provide a
complete, multidisciplinary assessment of each patient which includes,
but is not limited to, medical history, physical health, nursing needs,
alcohol and drug history, emotional and behavioral factors, age-
appropriate social circumstances, psychological condition, education
status, and skills. Unless otherwise specified, all required clinical
assessments are completed prior to development of the multidisciplinary
treatment plan.
(7) Clinical formulation. A qualified mental health care
professional of the SUDRF will complete a clinical formulation on all
patients. The clinical formulation will be reviewed and approved by the
responsible individual professional provider and will incorporate
significant findings from each of the multidisciplinary assessments. It
will provide the basis for development of an interdisciplinary treatment
plan.
(8) Treatment planning. A qualified health care professional with
admitting privileges shall be responsible for the development,
supervision, implementation, and assessment of a written,
individualized, and interdisciplinary plan of treatment, which shall be
completed within 10 days of admission to an inpatient rehabilitation
center or by the fifth day following admission to full day partial
hospitalization center, and by the seventh day of treatment for half day
partial hospitalization. The treatment plan shall include individual,
measurable, and observable goals for incremental progress towards the
treatment plan objectives and goals and discharge. A preliminary
treatment plan is completed within 24 hours of admission and includes at
least a physician's admission note and orders. The master treatment plan
is regularly reviewed for effectiveness and revised when major changes
occur in treatment.
(9) Discharge and transition planning. The SUDRF shall maintain a
transition planning process to address adequately the anticipated needs
of the patient prior to the time of discharge.
(10) Clinical documentation. Clinical records shall be maintained on
each patient to plan care and treatment and provide ongoing evaluation
of the patient's progress. All care is documented and each clinical
record contains at least the following: demographic data, consent forms,
pertinent legal documents, all treatment plans and patient assessments,
consultation and laboratory reports, physician orders, progress notes,
and a discharge summary. All documentation will adhere to applicable
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3).
An appropriately qualified records administrator or technician will
supervise and maintain the quality of the records. These requirements
are in addition to other records requirements of this part, and
provisions of the JCAHO Manual for Mental Health, Chemical Dependency,
and Mental Retardation/Developmental Disabilities Services.
(11) Progress notes. Timely and complete progress notes shall be
maintained to document the course of treatment for the patient and
family.
(12) Therapeutic services.
(i) Individual, group, and family psychotherapy and addiction
counseling services are provided to all patients, consistent with each
patient's treatment plan by qualified mental health providers.
(ii) A range of therapeutic activities, directed and staffed by
qualified personnel, are offered to help patients meet the goals of the
treatment plan.
(iii) Therapeutic educational services are provided or arranged that
are appropriate to the patient's educational and therapeutic needs.
(13) Ancillary services. A full range of ancillary services is
provided. Emergency services include policies and procedures for
handling emergencies with qualified personnel and written agreements
with each facility providing the service. Other ancillary services
include physical health, pharmacy and dietary services.
(C) Standards for physical plant and environment.
(1) Physical environment. The buildings and grounds of the SUDRF
shall be maintained so as to avoid health
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and safety hazards, be supportive of the services provided to patients,
and promote patient comfort, dignity, privacy, personal hygiene, and
personal safety.
(2) Physical plant safety. The SUDRF shall be maintained in a manner
that protects the lives and ensures the physical safety of patients,
staff, and visitors, including conformity with all applicable building,
fire, health, and safety codes.
(3) Disaster planning. The SUDRF shall maintain and rehearse written
plans for taking care of casualties and handling other consequences
arising from internal or external disasters.
(D) Standards for evaluation system.
(1) Quality assessment and improvement. The SUDRF develop and
implement a comprehensive quality assurance and quality improvement
program that monitors the quality, efficiency, appropriateness, and
effectiveness of the care, treatments, and services it provides for
patients and their families, utilizing clinical indicators of
effectiveness to contribute to an ongoing process of program
improvement. The clinical director is responsible for developing and
implementing quality assessment and improvement activities throughout
the facility.
(2) Utilization review. The SUDRF shall implement a utilization
review process, pursuant to a written plan approved by the professional
staff, the administration, and the governing body, that assesses the
appropriateness of admissions, continued stay, and timeliness of
discharge as part of an effort to provide quality patient care in a
cost-effective manner. Findings of the utilization review process are
used as a basis for revising the plan of operation, including a review
of staff qualifications and staff composition.
(3) Patient records review. The center shall implement a process,
including monthly reviews of a representative sample of patient records,
to determine the completeness and accuracy of the patient records and
the timeliness and pertinence of record entries, particularly with
regard to regular recording of progress/non-progress in treatment plan.
(4) Drug utilization review. An inpatient rehabilitation center and,
when applicable, a partial hospitalization center, shall implement a
comprehensive process for the monitoring and evaluating of the
prophylactic, therapeutic, and empiric use of drugs to assure that
medications are provided appropriately, safely, and effectively.
(5) Risk management. The SUDRF shall implement a comprehensive risk
management program, fully coordinated with other aspects of the quality
assurance and quality improvement program, to prevent and control risks
to patients and staff and costs associated with clinical aspects of
patient care and safety.
(6) Infection control. The SUDRF shall implement a comprehensive
system for the surveillance, prevention, control, and reporting of
infections acquired or brought into the facility.
(7) Safety. The SUDRF shall implement an effective program to assure
a safe environment for patients, staff, and visitors.
(8) Facility evaluation. The SUDRF annually evaluates accomplishment
of the goals and objectives of each clinical program and service of the
SUDRF and reports findings and recommendations to the governing body.
(E) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(xiv) of this section, in
order for the services of an inpatient rehabilitation center or partial
hospitalization center for the treatment of substance abuse disorders to
be authorized, the center 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. On October 1, 1995, 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, OCHAMPUS. In addition to review of
the SUDRFS application and supporting documentation, an on-site visit by
OCHAMPUS representatives may be part of the authorization process. In
addition, such a Participation Agreement may not be signed until an
SUDRF has been licensed and operational for at least six months. The
Participation Agreement
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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, OCHAMPUS;
(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,
OCHAMPUS, 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, OCHAMPUS;
(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;
(ii) It has conducted a self assessment of the SUDRF'S compliance
with the CHAMPUS Standards for Substance Use Disorder Rehabilitation
Facilities, as issued by the Director, OCHAMPUS, and notified the
Director, OCHAMPUS 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, OCHAMPUS, except for any such standards regarding which the
facility notifies the Director, OCHAMPUS that it is not in compliance.
(8) Grant the Director, OCHAMPUS, 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 CHAMPUS 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 General Accounting Office.
(F) Other requirements applicable to substance use disorder
rehabilitation facilities.
(1) Even though a SUDRF may qualify as a CHAMPUS-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
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and information provided to the Director, OCHAMPUS 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.
(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 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;
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(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.
(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) 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
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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 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. That is, TRICARE shall
accept Medicare certification of providers who have a like class of
providers under TRICARE without further authorization unless that
provider is under sanctions as stated herein. Providers without a like
class (i.e., chiropractors) under TRICARE 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 has 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 physican provides continuing
supervision of the course of care. A lay midwife who is neither a
certified nurse
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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 state offers such
specific licensure or certification; or
(3) Certified as a nurse practitioner (certified nurse) by a
professional organization offering certification in the speciality 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(g)(1)(iii) 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;
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(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;
(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. 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 para-medical providers.
(1) Licensed registered nurses.
(2) Licensed registered physical therapists and occupational
therapists.
(3) Licensed registered physical therapists.
(4) Audiologists.
(5) Speech therapists (speech pathologists).
(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 one
supervisor and should include a continuous process of supervision with
at least three cases; and
[[Page 188]]
(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 methdology, under the following specified conditions:
(i) The CHAMPUS beneficiary must be referred for therapy by a
physician; and
(ii) A physician is providing ongoing oversight and supervision of
the therapy being provided; and
[[Page 189]]
(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) Mental health counselor. For the purposes of CHAMPUS, a mental
health counselor is an individual who meets the following requirements:
(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 3000 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 CHAMPUS 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 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
[[Page 190]]
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.
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\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.
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(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.
(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) Program for Persons with Disabilities 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 the Handicapped (PFTH) provider with CHAMPUS-
authorized status on the effective date for the Program for Persons with
Disabilities (PFPWD) shall be deemed to be a CHAMPUS-authorized PFPWD
provider until all outstanding PFTH benefit authorizations for services
or items being rendered by the provider expire.
(2) PFPWD provider categories.--(i) PFPWD inpatient care provider. A
provider of residential institutional care which is otherwise a PFPWD
benefit shall be:
(A) A not-for-profit entity or a public facility, as defined in
Sec. 199.2; and
(B) Located within a State, as defined in Sec. 199.2; and
[[Page 191]]
(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 CHAMPUS-authorized
Institutional Provider as defined in paragraph (b) of this section, or
be approved by a State educational agency as a training institution.
(ii) PFPWD outpatient care provider. A provider of PFPWD outpatient,
ambulatory, or in-home services shall be:
(A) A CHAMPUS-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 a PFPWD
benefit and not otherwise allowable as a benefit of Sec. 199.4, that
meets all applicable licensing or other regulatory requirements that are
extant in the state, county, municipality, or other political
jurisdiction in which the PFPWD service is rendered.
(iii) PFPWD vendor. A provider of an allowable PFPWD item, supply,
equipment, orthotic, or device shall be deemed to be a CHAMPUS-
authorized vendor for the provision of the specific item, supply,
equipment, orthotic, or device when the vendor supplies such information
as the Director, OCHAMPUS, or designee, determines necessary to
adjudicate a specific claim.
(3) PFPWD provider exclusion or suspension. A provider of PFPWD
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 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;
[[Page 192]]
(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.
(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 Sections Affected, which appears in the Finding
Aids section of the printed volume and on GPO Access.
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
[[Page 193]]
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 Program for Persons with Disabilities (PFPWD) without the
submission of a complete and properly executed appropriate 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 fiscal 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 fiscal 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 fiscal 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 issued. When requried (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. The
ASD(HA) may issue a DoD Instruction to prescribe rules for the issuance
of 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
[[Page 194]]
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, 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
[[Page 195]]
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 PFPWD, it is necessary also to attach a copy
of the preauthorization.
(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 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
[[Page 196]]
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 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;
[[Page 197]]
(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).
(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.
[[Page 198]]
(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 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)
[[Page 199]]
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) Inpatient mental health services. Under most circumstances, the
60-day inpatient mental health limit applies to the first 60 days of
care paid in a calendar year. The patient will be notified when the
first 30 days of inpatient mental health benefits have been paid. The
beneficiary is responsible for assuring that all claims for care are
submitted sequentially and on a regular basis. Once payment has been
made for care determined to be medically appropriate and a program
benefit, the decision will not be reopened solely on the basis that
previous inpatient mental health care had been rendered but not yet
billed during the same calendar year by a different provider.
(3) Claims involving the services of marriage and family counselors,
pastoral counselors, and mental health counselors. CHAMPUS requires that
marriage and family counselors, pastoral counselors, and mental health
counselors make a written report to the referrring physician concerning
the CHAMPUS beneficiary's progress. Therefore, each claim for
reimbursement for services of marriage and family counselors, pastoral
counselors, and 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 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:
[[Page 200]]
(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 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
[[Page 201]]
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, as amended at 52 FR 33007, Sept. 1, 1987; 53
FR 5373, Feb. 24, 1988; 54 FR 25246, June 14, 1989; 56 FR 28487, June
21, 1991; 56 FR 59878, Nov. 26, 1991; 58 FR 35408, July 1, 1993; 58 FR
51238, Oct. 1, 1993; 58 FR 58961, Nov. 5, 1993; 62 FR 35097, June 30,
1997; 63 FR 48446, Sept. 10, 1998; 64 FR 38576, July 19, 1999; 67 FR
42721, June 25, 2002; 68 FR 44881, July 31, 2003]
Sec. 199.8 Double coverage.
(a) Introduction. (1) In enacting TRICARE legislation, Congress
clearly 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,
[[Page 202]]
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.
(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,
[[Page 203]]
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 eligible for both Medicare and
CHAMPUS receives medical or dental care for which payment may be made
under Medicare and CHAMPUS, Medicare is always the primary payer. 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 by CHAMPUS shall be the amount
of the 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 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
[[Page 204]]
retiree, dependent, or survivor beneficiary who is not Medicare
eligible.
(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 fiscal year.
(vi) Effect of enrollment in Medicare+Choice plan. In the case of a
beneficiary enrolled in a Medicare+Choice plan who receives items or
services for which payment may be made under both the Medicare+Choice
plan and CHAMPUS, a claim for the beneficiary's normal out-of-pocket
costs under the Medicare+Choice plan may be submitted for CHAMPUS
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 amount payable
is limited to the amount that would have been paid if the beneficiary
had received care covered by the Medicare+Choice plan.
(vii) 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.
(viii) 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) Program for persons with disabilities (PFPWD). A PFPWD 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, OCHAMPUS, or designee, to be
available and adequate to meet a disability related need for which a
PFPWD 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
[[Page 205]]
available in the adjudication of PFPWD benefits.
(5) The requirements of paragraph (d)(4) of this section
notwithstanding, CHAMPUS is primary payer for services and items that
are provided under Part C of the IDEA that are medically or
psychologically necessary in accordance with the Individualized Family
Service Plan and that are otherwise allowable under the CHAMPUS Basic
Program or the Program for Persons with Disabilities.
(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]
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
[[Page 206]]
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:
(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
[[Page 207]]
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 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
[[Page 208]]
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 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.
[[Page 209]]
(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 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,
[[Page 210]]
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, 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
[[Page 211]]
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 tratment 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.
(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
[[Page 212]]
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 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
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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.
(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.
[[Page 214]]
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:
(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.
[[Page 215]]
(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 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.
[[Page 216]]
(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 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
[[Page 217]]
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.
(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
[[Page 218]]
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 situtation, 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, 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
[[Page 219]]
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 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
[[Page 220]]
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.
(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
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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.)
[54 FR 25246, June 14, 1989, as amended at 63 FR 48445, Sept. 10, 1998]
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 decsion 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
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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 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
[[Page 223]]
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.
(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.
[[Page 224]]
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.
(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
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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,
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
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independent reveiw 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 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
[[Page 227]]
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 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
[[Page 228]]
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 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
[[Page 229]]
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.
(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
[[Page 230]]
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.
(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
[[Page 231]]
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 on the record and the order in which evidence will be recieved.
(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
[[Page 232]]
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.
(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
[[Page 233]]
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]
Sec. 199.11 Overpayments recovery.
(a) General. Actions to recover overpayments arise when the
government has a right to recover money or property from an individual,
partnership, association, corporation, governmental body or other legal
entity, foreign or domestic, except an instrumentality of the United
States because of an erroneous payment of benefits under the Civilian
Health and Medical Program of the Uniformed Services (CHAMPUS). A claim
against several joint debtors arising from a single incident or
transaction is considered to be one claim. 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 benefits payments arising out
of administration of CHAMPUS.
(b) Authority. (1) Federal statutory authority. The Federal Claims
Collection Act provides the basic authority under which claims may be
asserted pursuant to this section. It is implemented by joint
regulations issued by the Department of Justice and the General
Accounting Office, 4 CFR parts 101-105. Thereunder, the heads of federal
agencies or their designees are required to attempt collection of all
claims of the United States for money or property arising out of the
activities of their respective agencies. These officials may, with
respect to claims that do not exceed $20,000, exclusive of interest, and
in conformity with the standards promulgated in the joint regulations,
compromise, suspend, or terminate collection action on such claims.
Section 743 of the National Defense Authorization Act for Fiscal Year
1996 (Public Law 104-106) authorizes the waiver (see paragraph (g)(3) of
this section) of collection of overpayments otherwise due from a person
after the termination of the person's CHAMPUS eligibility, because the
person became eligible for Medicare Part A by reason of disability or
end-stage renal disease.
(2) Other authority. Occasionally, federal claims may arise which
are grounded, at least in part, in authority other than the federal
statute referenced above. These include, but are not limited to, claims
arising under:
(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 governmental policy of avoiding unnecessary
litigation in the collection of claims by the United States for money or
property necessitates aggressive agency collection action. The Director,
OCHAMPUS, or a designee, will insure that CHAMPUS claims asserting
personnel are adequately supported to take timely and effective action.
Claims arising out of any incident which has or probably will generate a
claim in favor of the government will not be compromised nor will
collection action be terminated by any person not authorized to take
final action on the government's claim. By the Act of July 18, 1966 (28
U.S.C. 2415-2418), Congress established a statute of limitation
applicable to the government in areas where previously neither
limitations nor laches were available as a defense. Claims falling
within the provisions of this statute will be processed expeditiously to
the Department of Justice or the General Accounting Office, as
appropriate, without attempting administrative collection action if such
action cannot be accomplished in sufficient time to preclude the running
of the statute of limitations.
[[Page 234]]
(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 the CHAMPUS. 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 CHAMPUS 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 fiscal intermediary may erroneously make payment
for services which are excluded as CHAMPUS benefits because they are
determined to be not medically necessary. In that event recoupment
action will be initiated by the fiscal intermediary at the same time the
fiscal intermediary 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. Obviously, if the appeal is resolved
entirely in favor of the appealing party, that 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, compromise
or to suspend or terminate collection action on claims arising under the
Federal Claims Collection Act has been delegated to the Director,
OCHAMPUS, or a designee.
(f) Recoupment of erroneous payments. (1) Erroneous payments.
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 the CHAMPUS include mathematical errors,
payment for care provided to an ineligible person, payment for care
which is not an authorized benefit, payment for duplicate claims,
inaccurate 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 CHAMPUS claims
or other fraud fall under the direct cognizance of the Department of
Justice. Consequently, the procedures in this section apply to such
claims only when specifically authorized or directed by the Department
of Justice. (See 32 CFR 101.3.)
(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, beneficiary, provider, physician or other supplier of
services under the CHAMPUS. These provisions are adopted pursuant to the
Federal Claims Collection Act (31 U.S.C. 3701 et seq., as amended by the
Debt Collection Act of 1982, Pub. L. 97-365), which requires each agency
of the U.S. Government (pursuant to regulations jointly promulgated by
the Attorney General and the Comptroller General) to attempt collection
of federal claims in favor of the United States arising out of the
activities of the agency, and 5 U.S.C. 5514, which provides for
installment deduction for indebtedness to the United States, implemented
by regulations issued by the Office of Personnel Management, 5 CFR part
550, and the Department of Defense, 32 CFR part 90. Paragraph (f) of
this section also includes government-wide collections by salary offset
under 5 U.S.C. 5514.
(ii) Debtor defined. As used herein, ``debtor'' means a sponsor,
beneficiary, provider, physician, other supplier of services or
supplies, or any other person who has for any reason been erroneously
paid under the CHAMPUS. It includes an individual, partnership,
corporation, professional corporation or association, estate, trust or
any other legal entity.
(iii) Delinquency defined. As used herein, a debt is considered
``delinquent'' if it has not been paid by the
[[Page 235]]
date specified in the initial demand for payment (that is, the initial
written notification) or applicable contractual agreement, unless other
satisfactory payment arrangements have been made by that date. A debt is
also considered delinquent if at any time after entering into a
repayment agreement, the debtor fails to satisfy any obligations under
that agreement.
(3) Other health insurance claims. Claims arising from erroneous
CHAMPUS payments in situations where the beneficiary has entitlement to
insurance, medical service, health and medical plan, 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
under one of the following procedures:
(i) Where the other health insurance plan has not already made
benefit payments to the beneficiary or provider, a claim for direct
reimbursement will be asserted against the plan, pursuant to the fiscal
intermediary's coordination of benefit procedures.
(ii) If the other health insurance plan has made its benefit payment
prior to receiving the CHAMPUS request for reimbursement, the recoupment
procedures set forth in paragraph (f) of this section will be followed.
(4) Claims 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 persons eligible to
receive benefits under CHAMPUS. However, it is the responsibility of the
Uniformed Services to provide eligible CHAMPUS beneficiaries with
accurate and appropriate means of identification. When sources of
civilian medical care exercise reasonable care and precaution in
identifying persons claiming to be eligible CHAMPUS beneficiaries and
furnish otherwise covered services and supplies to such persons in good
faith, CHAMPUS benefits may be paid subject to prior approval by the
Director, OCHAMPUS, 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
as the result of its own careless identification procedures.
(ii) When it is determined that a person was not a CHAMPUS
beneficiary, the CHAMPUS fiscal intermediary and the civilian source of
medical care are expected to make all reasonable efforts to obtain
payment or recoup the amount of the good faith payment from the person
who erroneously claimed to be a CHAMPUS beneficiary. Recoupments of good
faith payments initiated by the CHAMPUS fiscal intermediary 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 CHAMPUS fiscal intermediary normally will be
required to take the initial action to effect recoupment. Such action
will be in accordance with the provisions of this part and the fiscal
intermediary's CHAMPUS contract and will include demands for refund or
an offset against any other CHAMPUS payment becoming due the debtor.
When the efforts of the CHAMPUS fiscal intermediary to effect recoupment
are not successful within a reasonable time, recoupment cases will be
referred to the General Counsel, OCHAMPUS, 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. The CHAMPUS fiscal intermediary and
OCHAMPUS normally shall make a total of at least three progressively
stronger written demands upon the debtor in terms which inform the
debtor of the consequences of his or her
[[Page 236]]
failure to cooperate. The initial written demand shall inform the debtor
of the basis for and the amount of the indebtedness. The initial written
demand shall also inform the debtor of the following: The debtor's right
to inspect and copy all records pertaining to the debt; his or her right
to request an administrative review by the fiscal intermediary; that
interest on the debt at the current rate as determined by the Director,
OCHAMPUS, or a designee, will begin to accrue on the date of the initial
demand notification; that such interest shall be waived on the debt, or
any portion thereof, which is paid within 30 days of the date of the
initial demand notification; that payment of the indebtedness is due
within 30 days of the date of the initial demand notification; and that
administrative costs and penalties will be charged pursuant to 4 CFR
102.13. The debtor also shall be informed that collection by offset
against current or subsequent claims may be taken. All debtors will be
offered an opportunity to enter into a written agreement to repay the
indebtedness. The fiscal intermediary demand letters must be dated the
same day as they are mailed. Two written demands, at 30-day intervals,
normally will be made by the CHAMPUS fiscal intermediary unless a
response to the first demand indicates that further demand would be
futile or unless prompt suit or attachment is required in anticipation
of the departure of the debtor, of his removal or transfer of assets, or
the running of the statute of limitations. There should be no undue time
lag in responding to any communication received from the debtor.
Responses should be made within 30 days whenever feasible. If these
initial efforts at collection are not productive or if immediate legal
action on the claim appears necessary, the claim either will be referred
promptly by the CHAMPUS fiscal intermediary to the General Counsel,
OCHAMPUS, or the CHAMPUS fiscal intermediary will prepare a final notice
informing the debtor that the debt is to be offset in whole or in part.
When a case is referred to OCHAMPUS, the Office of General Counsel will
normally prepare a third written demand unless from the record such
demand appears futile or otherwise inappropriate.
(iii) Collection by administrative offset. Collections by offset
will be undertaken administratively on claims which are liquidated or
certain in amount in every instance in which this is feasible. No
collection by offset may be undertaken unless a demand for payment
containing all of the procedural safeguards described in paragraph
(f)(6)(ii) of this section, has been sent to the debtor. The
determinations of indebtedness made for recoupment of erroneous CHAMPUS
payments rarely involve issues of credibility of veracity. Erroneous
CHAMPUS payments most frequently arise from claims submitted by
individuals ineligible for CHAMPUS benefits; from claims submitted for
services or supplies not covered by CHAMPUS; from claims in which there
have been other insurance payments which reduce the CHAMPUS liability
and from claims from participating providers in which payment is
initially erroneously made to the beneficiary. While these recoupment
claims normally involve the resolution of factual questions, these
resolution nearly always require only reference to the documentary
evidence compiled in the investigation and processing of the claim. The
appeals system described in Sec. 199.10 of this part affords a CHAMPUS
beneficiary or participating provider an opportunity for an
administrative appellate review, including, under certain circumstances,
the right to oral hearing before a hearing officer. Further, there is no
statutory provision for the waiver of indebtedness arising from
erroneous CHAMPUS payments, other than the provisions of the Federal
Claims Collection Act which allow for the compromise of claims or the
termination of collection action under certain circumstances specified
in paragraph (g) of this section. Consequently, the pre-offset oral
hearing requirements of the Federal Claims Collection Standards (4 CFR
102.3) do not apply to the recoupment of erroneous CHAMPUS payments.
CHAMPUS fiscal intermediaries may take administrative action to offset
erroneous payments against other current CHAMPUS payments owing a
debtor. Payments on the claims of a debtor
[[Page 237]]
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 any part
of a debt may be offset depending upon the amount available for offset.
Only the case in which no possibility of offset arises within 60 days of
the initiation of collection action and on which other collection
efforts have been unsuccessful or in which the debtor seeks relief from
the indebtedness will be referred to the General Counsel, OCHAMPUS, by
the CHAMPUS fiscal intermediary. Offset, under the provisions of 31
U.S.C. 3716, is not to be used with respect to debts owed by any state
or local government. Any requests for offset that are received from
other agencies shall be forwarded to the General Counsel, OCHAMPUS, for
processing, as will orders for garnishment issued by courts of competent
jurisdiction.
(iv) Collection of installments. CHAMPUS recoupment claims should be
collected in one lump sum whenever possible. However, if the debtor is
financially unable to pay the debt in one lump sum, payment may be
accepted in regular installments by the CHAMPUS fiscal intermediary or
the General Counsel, OCHAMPUS. Installment payments normally will be
required on at least a monthly basis and their size will bear a
reasonable relation to the size of the debt and the debtor's ability to
pay. A CHAMPUS fiscal intermediary should not enter into installment
agreements which extend beyond 24 months. OCHAMPUS installment
agreements normally should liquidate the government's claim within 3
years. Installment payments of less than $50 per month normally will be
accepted only if justifiable on grounds of financial hardship or some
other reasonable cause. Any installment agreement with a debtor in which
the total amount of the deferred installments will exceed $750 should
normally include an executed promissory note.
(v) Interest, penalties, and administrative costs. Interest shall be
charged on CHAMPUS recoupment debts and debts collected in installments
in accordance with 4 CFR 102.13 and instructions issued by the Director,
OCHAMPUS, or a designee. Interest shall accrue from the date on which
the initial demand 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 (that is, the Treasury tax and loan account rate). 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. 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 began to accrue, shall be
waived. The agency may extend this 30-day period, on a case-by-case
basis, if it reasonably determines that such action is appropriate.
Also, 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,
OCHAMPUS, or a 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 of these charges would be against
equity and good conscience or not in the best interests of the United
States. Some situations in which such a waiver may be appropriate
include:
(A) Waiver of interest consistent with 4 CFR 104.2(c)(2) in
connection with a suspension of collection action pending a CHAMPUS
appeal 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 may be appropriate include: a debt
arising when a CHAMPUS beneficiary, who is unaware of the loss of
eligibility for CHAMPUS because he or she has become eligible for
Medicare, continues to file and be paid for CHAMPUS claims, resulting in
erroneous CHAMPUS payments; a debt
[[Page 238]]
arising when a CHAMPUS beneficiary in good faith files and is paid a
CHAMPUS claim for medical services or supplies which are later
determined not to be benefits of CHAMPUS; and a debt arising when a
CHAMPUS beneficiary is overpaid as the result of a calculation error on
the part of a fiscal intermediary or OCHAMPUS.
(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 any portion of a debt that is
delinquent for more than 90 days. This charge, which need not be
calculated until the 91st day of delinquency, shall accrue from the date
that the debt became delinquent.
(vi) Referral to other federal agencies for administrative offset.
As appropriate and in accordance with 4 CFR part 1023, agencies will be
requested to initiate administrative offset to collect CHAMPUS debts.
When a debtor is employed by the U.S. Government, or is a member or
retired member of the Uniformed Service, and collection by offset
against other CHAMPUS payments due the debtor cannot be accomplished,
and there have been no positive responses to a demand for payment within
60 days, the Director, OCHAMPUS, or a designee, may contact the agency
holding funds payable to the debtor for payment by allotment or
otherwise by salary offset from current disposable pay in accordance
with 37 U.S.C. 1007 or 5 U.S.C. 5514 as implemented by 32 CFR part 90
and 5 CFR part 550. Where applicable, the request for recovery of
erroneous CHAMPUS payments shall be submitted to the debtor's paying
agency in accordance with 5 CFR 550.1106. Before contacting the paying
agency, the Director, OCHAMPUS, or a designee, will provide the debtor
written notification of the agency's intent to collect the debt by means
of salary offset, authorized by 5 U.S.C. 5514. The notification will
include, as a minimum:
(A) The agency's determination that a debt is owed, including the
origin, nature, and the amount of the debt;
(B) The date by which payment is to be made, which will normally be
30 days from the date the demand letter is mailed;
(C) The amount, frequency, proposed beginning date and duration of
the intended deductions, which will be determined in accordance with the
provisions of 5 CFR 550.1104 or 32 CFR part 90, as appropriate.
Ordinarily, the size of installment deductions must bear a reasonable
relationship to the size of the debt and the employee's ability to pay
(4 CFR 102.11). However, the amount deducted for any period must not
exceed 15 percent of the disposable pay from which the deduction is made
unless the debtor has agreed in writing to the deduction of a greater
amount. Debts must be collected in one lump-sum whenever possible.
However, if the employee is financially unable to pay in one lump-sum,
or the amount of the debt exceeds 15 percent of current disposable pay
for an officially established pay interval, collection must be made in
installments. Such installment deductions must be made to effect
collection within the period of anticipated active duty or employment.
If the debtor retires or resigns or if his or her employment or period
of active duty ends before collection of the debt is completed, offset
from subsequent payments of any kind due the employee from the paying
agency as of the date of separation shall be made to
[[Page 239]]
the extent necessary to liquidate the debt pursuant to 31 U.S.C. 3716 as
implemented by 5 CFR part 550 and 32 CFR part 90. If possible, the
installment payments should be sufficient in size and frequency to
liquidate the government's claim in not more than 3 years. Installment
payments of less than $50 per month should be accepted only with
reasonable justification. An employee's involuntary payment of all or
any portion of a debt being collected under 5 U.S.C. 5514 will not be
construed as a waiver of any rights the debtor may have under that
statute or any other provisions of contract or law, unless there are
statutory or contractual provisions to the contrary.
(D) An explanation of interest, penalties, and administrative costs,
including a statement that such assessments must be made unless excused
in accordance with the Federal Claims Collection Standards;
(E) Advice that the debtor may inspect and copy government records
relating to the debt or, if debtor or his or her representative cannot
personally inspect the records, to request and receive a copy of such
records. Requests for copies of the records relating to the debt shall
be made no later than 10 days from the receipt by the debtor of the
notice of indebtedness.
(F) An opportunity for a review by the agency of its determination
regarding the existence or the amount of the debt, or when a repayment
schedule is established other than by written agreement, concerning the
terms of the repayment schedule. The debtor shall be advised that a
challenge to either the existence of the debt, the amount of the debt,
or the repayment schedule, must be made within 30 days of the receipt by
the debtor of the notice of indebtedness or within 45 days after receipt
of the records relating to the debt, if such records are requested by
the debtor. A request for waiver or reconsideration should be
accompanied by supporting documents indicating why the debtor believes
he is not so indebted, or by a financial affidavit supporting his
request for an alternative repayment schedule;
(G) Notice that the timely filing of a petition for review will stay
the commencement of collection proceedings;
(H) Notice that a final decision on the review (if one is requested)
will be issued at the earliest practical date, but not later than 60
days after the filing of the petition requesting the review unless the
employee requests, and the agency grants, a delay in the proceedings;
(I) The opportunity, if it has not been previously provided, to
enter into a written agreement to establish a schedule for repayment of
the debt in lieu of offset. The agreement will be signed by both the
debtor and the agency's representative and will be kept in the agency's
files;
(J) Notice that any knowingly false or frivolous statements,
representations, or evidence may subject the debtor to:
(1) Disciplinary procedures appropriate under chapter 75 of Title 5
U.S. Code, 5 CFR part 752, or any other applicable statutes or
regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or
any other applicable authority, or
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002, or
any other applicable authority;
(K) Where applicable, notice of the debtor's right to appeal, under
Sec. 199.10 of this part;
(L) That amounts paid on or deducted for the debt which are later
waived or found not owed to the United States will promptly be refunded
to the debtor. Refunds do not bear interest unless required or permitted
by law or contract;
(M) The specific address to which all correspondence regarding the
debt shall be directed. Unless otherwise prohibited by law, moneys which
are due and payable to a debtor from the Civil Service Retirement and
Disability Fund may be administratively offset in reasonable amounts in
order to collect in one full payment or a minimal number of payments
debts owed to the United States by the debtor. The General Counsel,
OCHAMPUS, may forward requests for offset of debts arising from the
operation of CHAMPUS to the appropriate officials of the Office of
Personnel Management. These requests shall comply with the provisions of
4 CFR 102.4 and 5 CFR part 550.
[[Page 240]]
(vii) Referral to debt collection agencies. Pursuant to the
provisions of the Federal Claims Collection Standards (4 CFR 102.6), the
Director, OCHAMPUS, or a designee, is authorized to enter into contracts
for collection services, including contracts with private collection
agencies for the purpose of supplementing and strengthening the
collection efforts of the Department of Defense in recouping erroneous
CHAMPUS payments. Such contracts will supplement but not replace the
basic collection program described herein. The authority to resolve
disputes, compromise claims, terminate collection action and initiate
legal action may not be delegated in such contracts but will be retained
by the Director, OCHAMPUS, or a designee. Individuals or firms that
enter into contracts for collection services pursuant to this paragraph
are subject to the Privacy Act of 1974, as amended, 5 U.S.C. 552a,
federal and state laws and regulations pertaining to debt collection
practices, including the Fair Debt Collection Practices Act, 15 U.S.C.
1692. Debt collection contractors shall be required to account strictly
for all amounts collected and must agree to provide any data contained
in their files relating to 4 CFR 105.2(a) (1), (2) and (3). Contracts
for commercial collection services must comply with 32 CFR part 90.
(viii) Referrals to consumer reporting agencies. The Director,
OCHAMPUS, or a designee, is authorized to provide for the reporting of
delinquent debts to consumer reporting agencies. Delinquent debts are
those which are not paid or for which satisfactory payment arrangements
are not made by the due date specified in the initial notification of
indebtedness, or those for which the debtor has entered into a written
payment agreement and installment payments are past due 30 days or
longer. These referrals may be made only after publication of a
``routine use'' for the disclosures involved as required by the Privacy
Act of 1974, as amended, 5 U.S.C. 552a. Procedures developed for such
referrals must also insure that an accounting of the disclosures is kept
which is available to the debtor; that the consumer reporting agencies
are provided with corrections and annotations of disagreements by the
debtor; and that reasonable efforts are made to assure that the
information to be reported is accurate, complete, timely and relevant.
When requested by a consumer reporting agency, verification of
information disclosed will promptly be provided. 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 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 consumer 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.
(ix) Use and disclosure of mailing addresses. In attempting to
locate a debtor in the collection of a debt under this section, the
Director, OCHAMPUS, 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. These requests
will comply with the provisions of 26 U.S.C. 6103(p)(4) and applicable
regulations of the Internal Revenue Service. Disclosure of a mailing
address so obtained may be made pursuant to 4 CFR 102.18(b) and 31
U.S.C. 3711.
(g) Compromise, waiver, 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 the CHAMPUS may be
compromised or collection action
[[Page 241]]
taken thereon may be suspended or terminated in compliance with the
Federal Claims Collection Act, 31 U.S.C. 3711(a)(2) as implemented by
the Federal Claims Collection Standards, 4 CFR parts 101 through 105.
(2) Authority. CHAMPUS fiscal intermediaries are not authorized to
compromise or to suspend or terminate collection action on federal
CHAMPUS claims. Only the Director, OCHAMPUS, or a designee, and
Uniformed Service claims officers acting under the provisions of their
own regulations, are so authorized.
(3) Waiver of collection of erroneous payments due from certain
persons unaware of loss of CHAMPUS eligibility.
(i) The Director, OCHAMPUS may waive collection of payments
otherwise due from certain persons as a result of health benefits
received under this part after the termination of the person's
eligibility for such benefits. Waiver may be granted if collection of
such payments would be against equity and good conscience and not in the
best interest of the United States. These criteria are met by a finding
that there is no indication of fraud, misrepresentation, fault, or lack
of good faith on the part of the person who received the erroneous
payment or any other person having an interest in obtaining such waiver.
(ii) Persons eligible for waiver. The following persons are eligible
for waiver:
(A) A person who:
(1) Is entitled to Medicare Part A by reason of disability or end
stage renal disease;
(2) In the absence of such entitlement, would have been eligible for
CHAMPUS under 10 U.S.C. 1086; and
(3) At the time of the receipt of such benefits, was under age 65.
(B) Any participating provider of care who received direct payment
for care provided to a person described in paragraph (g)(ii)(A) of this
section pursuant to an assignment of benefits from such person.
(iii) The authority to waive collection of payments under this
section shall apply with regard to health benefits provided during the
period beginning January 1, 1967, and ending on the later of: the
termination date of any special enrollment period for Medicare Part B
provided specifically for such persons; or July 1, 1996.
(4) Basis for compromise. 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 debtor refuses to pay the claim in full and the government
is unable to enforce collection of the full amount within a reasonable
time by enforced collection proceedings;
(iii) There is real doubt concerning the government's ability to
prove its case in court for the full amount claimed either because of
the legal issues involved or a bona fide dispute as to the facts; or
(iv) The cost of collecting the claim does not justify enforced
collection of the full amount.
(5) Basis for suspension. Collection action may be suspended for
either of the following reasons if future collection action may be
sufficiently productive to justify periodic review and action on the
claim giving consideration to its size and the amount which may be
realized thereon:
(i) The debtor cannot be located; or
(ii) 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 collection action can be effected by offset,
notwithstanding the statute of limitations with due regard to the 10-
year limitation prescribed by 31 U.S.C. 3716(c)(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 to fully
pay the principal amount of the debt with interest at a later date.
(iii) Consideration may be given by the Director, OCHAMPUS, or a
designee, to suspend collection action
[[Page 242]]
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 CHAMPUS claim or claims directly involved in
the government's claim against the debtor. Suspension under this
paragraph will be based upon appropriate consideration, 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.
(6) Basis for termination. Collection action may be terminated for
one or more of the following reasons:
(i) The United States cannot collect or enforce collection of any
significant sum from the debtor having due regard to 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:
(A) There is no security remaining to be liquidated, or
(B) The applicable statute of limitations has run and the prospects
of collecting by offset, notwithstanding the bar of the statute of
limitations, are too remote to justify retention of the claim;
(iii) The cost of further collection action is likely to exceed any
recovery;
(iv) It is determined that the claim is legally without merit; or
(v) Evidence necessary to prove the claim cannot be produced or the
necessary witnesses are unavailable and efforts to induce voluntary
payment are unavailing.
(7) Factors considered. In determining whether a claim will be
compromised, or collection action terminated or suspended, the
responsible CHAMPUS collection authority will consider the following
factors:
(i) Age and health of the debtor, present and potential income,
inheritance prospects, possible concealment or improper transfer of
assets and the availability of assets or income which may be realized
upon 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 forced sale; or
(iv) The probability of proving the claim in court, the probability
of full or partial recovery, the availability of necessary evidence and
related pragmatic considerations.
(8) Amount of compromise. The amount acceptable in compromise will
be reasonable in relation to the amount that can be recovered by
enforced collection proceedings. Consideration shall be given to the
following:
(i) The exemptions available to the debtor under state and federal
law;
(ii) The time necessary to collect the debt;
(iii) The litigative probabilities involved; and
(iv) The administrative and litigative costs of collection where the
cost of collecting the claim is a basis for compromise.
(9) Payment of compromised claims. (i) Time and manner. Compromised
claims are to be paid in one lump sum if possible. However, if payment
of a compromise is necessary, a legally enforceable compromise agreement
must be obtained. Payment of the amount that CHAMPUS has agreed to
accept as a compromise in full settlement of a CHAMPUS claim must be
made within the time and in the manner prescribed in the compromise
agreement. Any such compromised claim is not settled until the full
payment of the compromised amount has been made within the time and the
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
[[Page 243]]
original claim, less any amounts paid prior to the default.
(10) Effect of compromise, waiver, suspension or termination of
collection action. Pursuant to the Internal Revenue Code, 26 U.S.C.
6041, compromises and terminations of undisputed debts not discharged in
a Title 11 bankruptcy case and totaling $600 or more for the year will
be reported to the Internal Revenue Service in the manner prescribed for
inclusion 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 purposes
of the appeal procedures Sec. 199.10.
(h) Referrals for collection. (1) Prompt referral. Federal claims of
$600 or more on which collection action has been taken in accordance
with the provisions of this section and which cannot be collected or
compromised or on which collection action cannot be suspended or
terminated, as provided herein, will be promptly referred by the
Director, OCHAMPUS, or a designee, to the Department of Justice for
litigation in accordance with 4 CFR part 105. Such referrals will be
made as early as possible consistent with aggressive collection action
by CHAMPUS fiscal intermediaries and OCHAMPUS and well within the period
for bringing a timely suit against the debtor. Ordinarily referrals will
be made within one year of the OCHAMPUS final determination of the fact
and the amount of the debt.
(2) Report of prior collection actions. The Director, OCHAMPUS, or a
designee, will prepare a Claims Collection Litigation Report (CCLR) for
each case referred for collection under the provisions of this section.
The CCLR shall also be used when a claim is referred to the Department
of Justice in order to obtain approval of that Department with respect
to compromise, suspension, or termination when such approval is required
by 4 CFR 103.1(b) and 104.1(b). The CCLR will include, as a minimum, the
following:
(i) A checklist or brief summary of the actions previously taken to
collect or compromise the claim. If any of the required administrative
collection actions have been omitted, the reason for its omission must
be provided.
(ii) The current address or the debtor, or the same and address of
the agent for a corporation upon whom service may be made. Reasonable
and appropriate steps will be taken to locate missing parties in all
cases. Referrals to the Department of Justice for the institution of
foreclosure or other proceedings, in which the current address of any
party is unknown, will be accompanied by a listing of the prior known
addresses of such party and a statement of the steps taken to locate
that party.
(iii) Reasonably current credit data indicating that there is a
reasonable prospect of effecting enforced collection from the debtor,
having due regard for the exemptions available to the debtor under state
and federal law and the judicial remedies available to the government.
Such credit data may take the form of a commercial credit report; an
agency investigative report showing the debtor's assets, liabilities,
income, and expenses; the individual debtor's own financial statement
executed under penalty of perjury reflecting the debtor's assets,
liabilities, income, and expenses; or an audited balance sheet of a
corporate debtor. Such credit data may be omitted if a surety bond is
available in an amount sufficient to satisfy the claim in full; the
forced sale value of any security available for application to the
government's claim is sufficient to satisfy the claim in full; the
debtor is in bankruptcy or receivership; the debtor's liability to the
government is fully covered by insurance, in which case such information
as can be developed concerning the identity and address of the insurer
and the type and amount of insurance coverage will be furnished; or the
nature of the debtor is such that credit data is not normally available
or cannot reasonably be obtained, for example, a unit of state or local
government.
(3) Preservation of evidence. The Director, OCHAMPUS, 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.
[[Page 244]]
(i) Claims Involving Indications of Fraud, Filing of False Claims or
Misrepresentation.
Any case in which there is an indication of fraud, filing of false
claims or misrepresentation will be promptly referred to the Director,
OCHAMPUS, or a designee, for processing. The Director, OCHAMPUS, or a
designee, will investigate and evaluate the case and either refer the
case to the appropriate investigative law enforcement agency or return
the claim for other appropriate administrative action, including
collection action under this section. Payment on all CHAMPUS beneficiary
or provider claims in which fraud, filing false claims or
misrepresentation is suspected will be suspended until payment or denial
of the claim is authorized by the Director, OCHAMPUS, or a designee.
Collection action on all federal 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, OCHAMPUS, or a designee. Only the Department of Justice has
authority to compromise or terminate collection action on such claims.
[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 63
FR 27678, May 20, 1998]
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 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
[[Page 245]]
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 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
[[Page 246]]
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) Reponsibility 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 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.
[[Page 247]]
(3) Ascertaining total potential liability. It is essential that the
appropriate claims responsible for asserting the claim against the
third-party payer recive 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 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
[[Page 248]]
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, and services incidental to noncovered
services, 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
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.
(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,
[[Page 249]]
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 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.
[[Page 250]]
(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 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;
[[Page 251]]
(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 a beneficiary,
his or her estate, or responsible family member to pay for the costs of
dental care or treatment received. Specifically, for the purposes of
services and supplies covered by the TDP, beneficiary liability includes
cost-sharing amounts or any amount above the prevailing fee
determination by the insurer 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, beneficiaries may have
to pay the nonparticipating provider in full at the time of treatment
and seek reimbursement directly from the insurer for all or a portion of
the nonparticipating provider's fee. Beneficiary liability also includes
any expenses for services and supplies not covered by the TDP, less any
available discount provided as a part of the insurer's agreement with an
approved alternative delivery system.
(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.
[[Page 252]]
(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 or to accept the insurer's fee allowances and applicable
cost-share as the total charge for the services. 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.
(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 accept the insurer's reasonable fee allowances or other fee
arrangements 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 further defined in paragraph (e) of this section.
[[Page 253]]
(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.
(24) Sealants. A material designed for application on specified
teeth to seal the surface irregularities to prevent ingress of oral
fluids, food, and debris in order to prevent tooth decay.
(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 the
requirements set forth in Sec. Sec. 199.3(b)(2)(iv)(A) and
199.3(b)(2)(iv)(C).
(B) A member of the Selected Reserve of the Ready Reserve (as
specified in 10 U.S.C. 10143).
(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
[[Page 254]]
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.
(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
[[Page 255]]
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.
(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
[[Page 256]]
Selected Reserve or Individual Ready Reserve member lose 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 thirty-
one (31) days or more without a break in service, the member loses their
eligibility and is disenrolled, if they were 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. When the
previously enrolled active duty member is transferred back to the
Selected Reserve or Individual Ready Reserve without a break in service,
the member regains eligibility and is reenrolled; 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. 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 time as the
active duty, Selected Reserve or Individual Ready Reserve member's
discharge is executed.
(2) Continuation of eligibility for dependents of service members
who die while on active duty or while a member of the Selected Reserve
or Individual Ready Reserve. Eligible dependents of active duty members
while on active duty for a period of thirty-one (31) days or more and
eligible dependents of Selected Reserve or Individual Ready Reserve
members, as specified in 10 U.S.C. 10143 and 10144(b) respectively, if
on the date of the death of the member, the dependent is enrolled in the
TDP, or if not enrolled by reason of a discontinuance of a former
enrollment under paragraphs (c)(4)(ii) and (c)(4)(iii) of this section
shall be eligible for continued enrollment in the TDP for up to three
(3) years from the date of the member's death. This 3-year period of
continued enrollment also applies to dependents of active duty members
who died within the year prior to the beginning of the TDP while the
dependents were enrolled in the TFMDP. This continued enrollment is not
contingent on the Selected Reserve or Individual Ready Reserve member's
own enrollment in the TDP. During the three-year period of continuous
enrollment, the government will pay both the Government and the
beneficiary's portion of the premium share.
(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
[[Page 257]]
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 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
[[Page 258]]
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 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.
(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
[[Page 259]]
year, by the percent equal to the lesser of:
(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
[[Page 260]]
members enrolling themselves or their eligible dependents.
(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 defined as traditional prophylaxis (i.e., scaling
deposits from teeth, polishing teeth, and topical application of
fluoride to teeth) 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).
(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 261]]
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 262]]
(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
Sealants...................................... 20 20
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 Maxilllofacial 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 263]]
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 for all TDP beneficiaries and accept the fee or charge
determinations as established and made known to the provider by the
dental plan contractor. The fee or charge determinations are binding
upon the provider in accordance with the dental plan contractor's
procedures for participation. The authorized provider may not
participate on a claim-by-claim basis. The participating provider 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 lower of the actual charge or the
dental plan contractor's determination of the allowable charge; however,
payments to participating providers shall be in accordance with the
methodology specified in paragraph (g)(2)(ii) of this section. Payment
is made directly to the participating provider, and the participating
provider may only charge the beneficiary the 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.
[[Page 264]]
(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 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 equivalent of not less than the 50th
percentile of prevailing charges made for similar services in the same
locality (region) or state, or the provider's actual charge, 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.
(ii) Participating providers shall be reimbursed at the equivalent
of a percentile of prevailing charges sufficiently above the 50th
percentile of prevailing charges made for similar services in the same
locality (region) or state as to constitute a significant financial
incentive for participation, or the provider's actual charge, whichever
is lower, 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'',
[[Page 265]]
``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 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)
[[Page 266]]
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 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).
[66 FR 12860, Mar. 1, 2001; 66 FR 16400, Mar. 26, 2001, as amended at 68
FR 65174, Nov. 19, 2003]
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 education costs. Additional payments
will be made for capital costs, direct medical education costs, and
outlier cases.
[[Page 267]]
(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) Claims priced as of date of admission. Except for interim claims
submitted for qualifying outlier cases, all claims 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.
(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.
(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:
[[Page 268]]
(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, OCHAMPUS. The
effective date of these items and numbers shall correspond to that under
the Medicare PPS except where distinctions are made in this part.
(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)(3) 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 (g) of this section.
(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
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otherwise be paid under DRG 103 and 480, respectively.
(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) Rehabilitation hospitals. A rehabilitation hospital which is
exempt from the Medicare Prospective Payment System is also exempt from
the CHAMPUS DRG-based payment system. In order for a rehabilitation
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.
(3) Psychiatric and rehabilitation units (distinct parts). A
psychiatric or rehabilitation unit which is exempt from the Medicare
prospective payment system is also exempt from the CHAMPUS DRG-based
payment system. In order for a distinct unit 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.
(4) Long-term hospitals. A long-term hospital which is exempt from
the Medicare prospective payment system is also exempt from the CHAMPUS
DRG-based payment system. In order for a long-term 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 Sec. 412.23 of
Title 42 CFR.
(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. Any hospital which has qualified for
special
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treatment under the Medicare prospective payment system as a sole
community hospital and has not given up that classification is exempt
from the CHAMPUS DRG-based payment system. (See subpart G of 42 CFR part
412.)
(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.
(E) Hospitals which do not participate in Medicare. It is not
required that a hospital be a Medicare-participating provider in order
to be an authorized CHAMPUS provider. However, 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 HCFA-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 OCHAMPUS. 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 OCHAMPUS will not be
authorized to provide services to CHAMPUS 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 469 and 470. Records from DRGs 469 and 470 shall be
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.
(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
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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 differnces, 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 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
[[Page 272]]
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)
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
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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.
(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
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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 benficiaries 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.
(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
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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 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
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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 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
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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 hosptial.
(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 update factor for hospitals and units exempt
from the Medicare prospective payment system.
(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 amounts of each regional per
diem that will apply in any Federal fiscal year shall be published in
the Federal Register at approximately the start of that fiscal year.
(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
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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 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
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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. Any hospital which has qualified for
special treatment under the Medicare prospective payment system as a
sole community hospital 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) Per diem payment for psychiatric and substance use disorder
rehabilitation partial hospitalization services--(A) In general.
Psychiatric and substance use disorder rehabilitation partial
hospitalization services authorized by Sec. 199.4 (b)(10) and (e)(4)
and provided by institutional providers authorized under Sec. 199.6
(b)(4)(xii) and (b)(4)(xiv), are reimbursed on the basis of
prospectively determined, all-inclusive per diem rates. The per diem
payment amount must be accepted as payment in full for all institutional
services provided, including board, routine nursing services, ancillary
services (includes art, music, dance, occupational and other such
therapies), psychological testing and assessments, overhead and any
other services for which the customary practice among similar providers
is included as part of the institutional charges.
(B) Services which may be billed separately. The following services
are not considered as included within the per diem payment amount and
may be separately billed when provided by an authorized independent
professional provider:
(1) Psychotherapy sessions not included. Professional services
provided by an authorized professional provider (who is not employed by
or under contract with the partial hospitalization program) for purposes
of providing clinical patient care to a patient in the partial
hospitalization program are not included in the per diem rate. They may
be separately billed. Professional mental health benefits are limited to
a maximum of one session (60 minutes individual, 90 minutes family,
etc.) per authorized treatment day not to exceed five sessions in any
calendar week.
(2) Non-mental health related medical services. Those services not
normally included in the evaluation and assessment of a partial
hospitalization program, non-mental health related medical services, may
be separately billed when provided by an authorized independent
professional provider. This includes ambulance services when medically
necessary for emergency transport.
(C) Per diem rate. 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
CHAMPUS mental health per diem reimbursement system for both high and
low volume psychiatric hospitals and units (as defined in Sec.
199.14(a)(2)) for the fiscal year. A partial hospitalization program of
less than 6 hours (with a minimum of three hours) will be paid a per
diem rate of 75 percent of the rate for a full-day program.
(D) Other requirements. No payment is due for leave days, for days
in which treatment is not provided, or for days in which the duration of
the program services was less than three hours.
(3) Billed charges and set rates. The allowable costs for authorized
care in all hospitals not subject to the CHAMPUS DRG-based payment
system or the CHAMPUS mental health per diem payment system shall be
determined on the basis of billed charges or set rates. Under this
procedure the allowable costs may not exceed the lower of:
(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
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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.
(4) CHAMPUS discount rates. The CHAMPUS-determined allowable cost
for authorized care in any hospital may be based on discount rates
established under paragraph (i) of this section.
(5) Hospital outpatient services. This paragraph (a)(5) establishes
payment methods for certain outpatient services, including emergency
services, provided by hospitals.
(i) Clinical laboratory services. Services provided on an outpatient
basis by hospital-based clinical laboratories are paid on the same basis
as services covered by the allowable charge method under paragraph
(h)(1)(viii) of this section.
(ii) 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 (h)(1) of this section.
(iii) 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 (h)(1)
of this section. Routine venipuncture services provided on an outpatient
basis by institutional providers other than hospitals are also paid on
this basis.
(iv) Radiology services. TRICARE payments for hospital outpatient
radiology services are based on the allowable charge method under
paragraph (h)(1) of the section in the case of radiology services for
which the CMAC rates establish under that paragraph provide a payment
rate for the technical component of the radiology services provided.
Hospital charges for an outpatient radiology service are reimbursed
using the CMAC technical component rate.
(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,
OCHAMPUS, or a designee, shall establish such other methods of
determining
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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. This payment method is similar to that used by the
Medicare program for ambulatory surgery. This paragraph applies to
payment for institutional charges for ambulatory surgery provided in
hospitals and 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 this paragraph shall be
published periodically by the Director, OCHAMPUS. 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 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
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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 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
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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.
(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
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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 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.
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(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 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
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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 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
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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 for
children under age ten and 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. 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.
(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 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.
(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
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generating excessively high treatment costs. The outlier payment is a
proportion of the imputed costs beyond the outlier threshold for each
case-mix (HHRG) group.
(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
non-institutional, non-professional provers. 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
[[Page 289]]
national appropriate charge level. The national CMAC will then be
adjusted for localities in accordance with paragraph (g)(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 (h)(1)(i)(B)
of this section plus any balance billing amount up to the balance
billing limit as referred to in paragraph (h)(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).
(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
(g)(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 (g)(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.
(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 (g)(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,
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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 (h)(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 (h)(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 (g)(1)(iv)(B)(1) of this section 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 (g)(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 (g)(1)(iii) and (g)(1)(iv) of this section may be waived
pursuant to paragraph (g)(1)(iii)(C) of this section.
(1) Waiver based on balanced billing rates. Except as provided in
paragraph (g)(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 (g)(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
(g)(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
[[Page 291]]
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 (h)(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
(h)(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 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 (h)(1) of this section;
(ii) A prevailing charge may be calculated, by applying the
prevailing charge methodology of paragraph (h)(1)(ii) of this section to
a specific locality (which need not be the same as the localities used
for purposes of paragraph (h)(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 (h)(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
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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 (h)(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 (h)(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;
(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 (h)(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 (g)(1)(v) of this section.
(B) Appropriate charge levels will be established for each locality
for which a 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 (g)(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 (g)(i)(v), ``appropriate charge
levels'' in
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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 (g)(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
(g)(1)(v) of this section for 1991.
(B) The adjustment to calendar year 1991 of the product of paragraph
(g)(1)(vi)(A) of this section shall be as follows:
(1) For procedures other than those described in paragraph
(g)(1)(vi)(B)(2) of this section, the adjustment to 1991 shall be on the
same basis as that provided under paragraph (g)(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
(g)(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 (g)(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 (g)(1)(iii) and
(g)(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 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 (g)(1)(i) through
(g)(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 (g)(1)(viii) of this section as the
``base period'').
(B) For purposes of comparison to Medicare allowable payment amounts
pursuant to paragraph (g)(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 (g)(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 (g)(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.
[[Page 294]]
(ix) The allowable charge for physician assistant services other
than assistant-at-surgery may not exceed 85 percent 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 may not exceed 65 percent 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.
(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 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
[[Page 295]]
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 (g) of this section.
(l) 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.
(m) 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.
(n) 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, as amended at 55 FR 31180, Aug. 1, 1990; 55
FR 42562, Oct. 22, 1990; 55 FR 43342, Oct. 29, 1990; 56 FR 44006, Sept.
6, 1991; 56 FR 50273, Oct. 4, 1991; 58 FR 35408, July 1, 1993; 58 FR
51239, Oct. 1, 1993; 58 FR 58961, Nov. 5, 1993; 60 FR 6019, Feb. 1,
1995; 60 FR 12437, Mar. 7, 1995; 60 FR 52094, Oct. 5, 1995; 63 FR 7287,
Feb. 13, 1998; 63 FR 48446, Sept. 10, 1998; 63 FR 56082, Oct. 21, 1998;
64 FR 60671, Nov. 8, 1999; 65 FR 41003, July 3, 2000; 67 FR 45172,
Aug.28, 2001; 67 FR 18115, Apr. 15, 2002; 67 FR 40604, June 13, 2002]
Editorial Note: The following text, appearing at 63 FR 48445, Sept.
10, 1998, could not be incorporated into Sec. 199.14 because it was not
mentioned in the amendatory instruction. For the convenience of the
user, the text is set forth as follows:
Sec. 199.14 Provider reimbursement methods.
(a) * * *
(1) * * *
* * * * *
(iii) * * *
(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.
* * * * *
(D) * * *
(1) Differentiate large urban and other area charges. All charges in
the database shall be sorted into large urban and other area
[[Page 296]]
groups (using the same definitions for these categories used in the
Medicare program. * * *
* * * * *
(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.
* * * * *
(E) * * *
(1) * * *
(i) * * *
(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 outliner. 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) * * *
(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
Sec. 199.14(a)(1)(iii)(D)(4) 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 and 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 Sec.
199.14(a)(1)(iii)(D)(4) (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
[[Page 297]]
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.
* * * * *
(G) * * *
(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.
* * * * *
(d) * * *
(3) * * *
(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.
* * * * *
(h) Reimbursement of individual health care professionals and other
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.
* * * * *
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
specifically provided in this section or elsewhere in this part.
[[Page 298]]
(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, such as inpatient mental health services in excess
of 30 days in any year.
(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 299]]
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 required 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 also 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 TRICARE contractors shall determine, based upon best-business
practice, utility and cost-savings, the categories of other health care
services which are best served by medical necessity prior (or pre)
authorization and may request a waiver from the Director, TRICARE
Management Activity, or designee,
[[Page 300]]
from compliance with previously established requirements for medical
necessity prior (or pre) authorization.
(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
[[Page 301]]
necessary, was delivered in the most appropriate setting and met
acceptable standards of quality. This review may 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
[[Page 302]]
apply in connection with the DRG validation process set forth in
paragraph (d)(2) of this section.
(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
[[Page 303]]
shall be provided. The second reconsideration will be provided by
OCHAMPUS or another contractor 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 pargraph (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
[[Page 304]]
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 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]
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
[[Page 305]]
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 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 procedures. 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
[[Page 306]]
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.
(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]
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 management improvements
primarily through 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. Implementation of these management
improvements includes adoption of special rules and procedures not
ordinarily followed
[[Page 307]]
under CHAMPUS or MTF requirements. This section establishes those
special rules and procedures.
(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. 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
of the uniformed services. Its geographical applicability is all 50
states and the District of Columbia, In addition, if authorized by the
Assistant Secretary of Defense (Health Affairs), the TRICARE program may
be implemented in areas outside the 50 states and the District of
Columbia. In such cases, 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) MTF 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.
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 areas where it is potentially
applicable. Therefore, provisions of this section are not automatically
implemented, Rather, implementation of the TRICARE program and this
section requires an official action by an authorized individual, such as
a military medical treatment facility commander, a Surgeon General, the
Assistant Secretary of Defense (Health Affairs), or other person
authorized by the Assistant Secretary. Public notice of the initiation
of the TRICARE program will be achieved through appropriate
communication and media methods and by way of an official announcement
by the Director, OCHAMPUS, 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) Comprehensive enrollment system. Under the TRICARE program, all
health care beneficiaries become classified into one of four categories:
(A) Active duty members, all of whom are automatically enrolled in
TRICARE Prime;
(B) TRICARE Prime enrollees;
(C) TRICARE Standard participants, who are all CHAMPUS eligible
beneficiaries who are not enrolled in TRICARE Prime;
(D) Non-CHAMPUS beneficiaries, who are beneficiaries eligible for
health care services in military treatment facilities, but not eligible
for CHAMPUS;
(ii) Establishment of a triple option benefit. A second major
feature of TRICARE is the establishment of three options for receiving
health care:
(A) ``TRICARE Prime,'' which is a health maintenance organization
(HMO)-like program. It generally features use of military treatment
facilities and substantially reduced out-of-pocket costs for CHAMPUS
care. Beneficiaries generally agree to use military treatment facilities
and designated civilian provider networks and to follow certain managed
care rules and procedures.
(B) ``TRICARE Extra,'' which is a preferred provider organization
(PPO) program. It allows TRICARE Standard beneficiaries to use the
TRICARE provider network, including both military facilities and the
civilian network, with reduced out-of-pocket costs. These beneficiaries
also continue to be
[[Page 308]]
eligible for military medical treatment facility care on a space-
available basis.
(C) ``TRICARE Standard'' which is the basic CHAMPUS program. All
eligible beneficiaries are automatically included in Standard unless
they have enrolled in Prime. It preserves broad freedom of choice of
civilian providers, but does not offer reduced out-of-pocket costs.
These beneficiaries continue to be eligible to receive care in military
medical treatment facilities on a space available basis.
(iii) Coordination between military and civilian health care
delivery systems. A third major feature of the TRICARE program is a
series of activities affecting all beneficiary enrollment categories,
designed to coordinate care between military and civilian health care
systems. These activities include:
(A) Resource sharing agreements, under which a TRICARE contractor
provides to a military medical treatment facility, personnel and other
resources to increase the availability of services in the facility. All
beneficiary enrollment categories may benefit from this increase.
(B) Health care finder, an administrative activity that facilitates
referrals to appropriate health care services in the military facility
and civilian provider network. All beneficiary enrollment categories may
use the health care finder.
(C) Integrated quality and utilization management services,
potentially standardizing reviews for military and civilian sector
providers. All beneficiary categories may benefit from these services.
(iv) Consolidated schedule of charges. A fourth major feature of
TRICARE is a consolidated schedule of charges, incorporating revisions
that reduce differences in charges between military and civilian
services. In general, the TRICARE program reduces out-of-pocket costs
for civilian sector care.
(7) Preemption of State laws. (i) Pursuant to 10 U.S.C. 1103 and
section 8025 (fourth proviso) of the Department of Defense
Appropriations Act, 1994, 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. 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).
[[Page 309]]
(b) Triple option benefit in general. Where the TRICARE program is
fully implemented, eligible beneficiaries are given the option of
enrolling in TRICARE Prime (also referred to as ``Prime'') or remaining
in TRICARE Standard (also referred to as ``Standard''). In the absence
of an enrollment in Prime, coverage under Standard is automatic.
(1) Choice voluntary. With the exception of active duty members, the
choice of whether to enroll in Prime is voluntary for all eligible
beneficiaries. For dependents who are minors, the choice will be
exercised by a parent or guardian.
(2) Active duty members. For active duty members located in areas
where the TRICARE program is implemented, enrollment in Prime is
mandatory.
(3) Automatic enrollment of 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 consistent with
procedures established under paragraph (o)(7) of this section. The
enrollment of a dependent of the member may be terminated by the member,
dependent or other responsible individual at any time.
(c) Eligibility for enrollment. Where the TRICARE program is fully
implemented, all CHAMPUS-eligible beneficiaries who are not Medicare
eligible on the basis of age are eligible to enroll in Prime or to
remain covered under Standard. CHAMPUS beneficiaries who are eligible
for Medicare on basis of age (and are enrolled in Medicare Part B) are
automatically covered under TRICARE Standard. Further, some rules and
procedures are different for dependents of active duty members and
retirees, dependents, and survivors. In addition, where the TRICARE
program is implemented, a military medical treatment facility commander
or other authorized individual may establish priorities, consistent with
paragraph (c) of this section, based on availability or other
operational requirements, for when and whether to offer enrollment in
Prime.
(1) Active duty members. Active duty members are required to enroll
in Prime when it is offered. Active duty members shall have first
priority for enrollment in Prime. Because active duty members are not
CHAMPUS eligible, when active duty members obtain care from civilian
providers outside the military medical treatment facility, the
supplemental care program and its requirements (including Sec. 199.16)
will apply.
(2) Dependents of active duty members.
(i) Dependents of active duty members are eligible to enroll in
Prime. After all active duty members are enrolled, those dependents of
active duty members in the grade of E-1 to E-4 will have second priority
and all other dependents of active duty members will have third
priority.
(ii) If all dependents of active duty members within the area
concerned cannot be accepted for enrollment in Prime at the same time,
the MTF Commander (or other authorized individual) may establish
priorities within this beneficiary group category. The priorities may be
based on first-come, first-served, or alternatively, be based on rank of
sponsor, beginning with the lowest pay grade.
(3) Retired members, dependents of retired members, and
survivors.(i) Where TRICARE is fully implemented, all CHAMPUS-eligible
retired members, dependents of retired members, and survivors who are
not eligible for Medicare on the basis of age are eligible to enroll in
Prime. After all active duty members are enrolled and availability of
enrollment is assured for all active duty dependents wishing to enroll,
this category of beneficiaries will have third priority for enrollment.
(ii) If all eligible retired members, dependents of retired members,
and survivors within the area concerned cannot be accepted for
enrollment in Prime at the same time, the MTF Commander (or other
authorized individual) may allow enrollment within this beneficiary
group category on a first come, first served basis.
(4) Coverage under Standard. All CHAMPUS-eligible beneficiaries who
do not enroll in Prime will remain in Standard.
(d) Health benefits under Prime. Health benefits under Prime, set
forth in paragraph (d) of this section, differ from
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those under Extra and Standard, set forth in paragraphs (e) and (f) of
this section.
(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 service
members who died on active duty, 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 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) Benefits covered for CHAMPUS eligible beneficiaries for civilian
sector care. The provisions of Sec. 199.18 regarding the Uniform HMO
Benefit apply to TRICARE Prime enrollees.
(e) Health benefits under the TRICARE extra plan. Beneficiaries not
enrolled in Prime, although not in general required to use the Prime
civilian preferred provider network, are eligible to use the network on
a case-by-case basis under Extra. The health benefits under Extra are
identical to those under Standard, set forth in paragraph (f) of this
section, except that the CHAMPUS cost sharing percentages are lower than
usual CHAMPUS cost sharing. The lower requirements are set forth in the
consolidated schedule of charges in paragraph (m) of this section.
(f) Health benefits under the TRICARE standard plan. Where the
TRICARE program is implemented, health benefits under Prime, set forth
under paragraph (d) of this section, and Extra, set forth under
paragraph (e) of this section, are different than health benefits under
Standard, set forth in this paragraph (f).
(1) Military treatment facility (MTF) care. All nonenrollees
(including beneficiaries not eligible to enroll) continue to be eligible
to receive care in military treatment facilities on a space available
basis.
(2) Freedom of choice of civilian provider. Except as stated in
Sec. 199.4(a) in connection with nonavailability statement
requirements, CHAMPUS-eligible participants in Standard maintain their
freedom of choice of civilian provider under CHAMPUS. All
nonavailability statement requirements of Sec. 199.4(a) apply to
Standard participants.
[[Page 311]]
(3) CHAMPUS benefits apply. The benefits, rules and procedures of
the CHAMPUS basis program as set forth in this part, shall apply to
CHAMPUS-eligible participants in Standard.
(4) Preferred provider network option for standard participants.
Standard participants, although not generally required to use the
TRICARE program preferred provider network are eligible to use the
network on a case-by-case basis, under Extra.
(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, TRICARE Management Activity 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: spouse,
child, or unmarried child placed in the legal custody of the active duty
member as a result of an order of a court of competent jurisdiction for
a period of at least 12 consecutive months.
(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 either (g)(3)(i)(A) and (B), or (g)(3)(i)(C):
(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,
TRICARE Management Activity 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 designed by the Director, TRICARE Management
Activity, that the Director determines is more than 50 miles, or
approximately one hour driving time, from the nearest military medical
treatment facility that is 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
(g)(3)(i)(A), 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.
(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, TRICARE Management Activity, 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 Executive Director, TRICARE
Management Activity.
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(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 Executive Director, TRICARE Management Activity
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 Executive Director, TRICARE Management
Activity 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 section
(n) under TRICARE Prime. In the case of pharmacy services under Sec.
199.21, where the Director, TRICARE Management Activity 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 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.
(i) Health care finder. The Health Care Finder is an administrative
activity that assists beneficiaries in being referred to appropriate
health care providers, especially the MTF and preferred providers.
Health Care Finder services are available to all beneficiaries. In the
case of TRICARE Prime enrollees, the Health Care Finder will facilitate
referrals in accordance with Prime rules and procedures. For Standard
participants, the Finder will provide assistance for use of Extra. For
Medicare-eligible beneficiaries, the Finder will facilitate referrals to
TRICARE network providers, generally required to be Medicare
participating providers. For participants in other managed care
programs, the Finder will assist in referrals pursuant to the
arrangements made with the other
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managed care program. For all beneficiary enrollment categories, the
finder will assist in obtaining access to available services in the
medical treatment facility.
(j) General quality assurance, utilization review, and
preauthorization requirements under TRICARE program. All quality
assurance, utilization review, and preauthorization requirements for the
basic CHAMPUS program, as set forth in this part 199 (see especially
applicable provisions of Sec. Sec. 199.4 and 199.15), are applicable to
Prime, Extra and Standard under the TRICARE program. Under all three
options, some methods and procedures for implementing and enforcing
these requirements may differ from the methods and procedures followed
under the basic CHAMPUS program in areas in which the TRICARE program
has not been implemented. 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.
(k) Pharmacy services. Pharmacy services under Prime are as provided
in the Pharmacy benefits Program (see Sec. 199.21).
(l) PRIMUS and NAVCARE clinics--(1) Description and authority.
PRIMUS and NAVCARE clinics are contractor owned, staffed, and operated
clinics that exclusively serve uniformed services beneficiaries. They
are authorized as transitional entities during the phase-in of TRICARE.
This authority to operate a PRIMUS or NAVCARE clinic will cease upon
implementation of TRICARE in the clinic's location, or on October 1,
1997, whichever is later.
(2) Eligible beneficiaries. All TRICARE beneficiary categories are
eligible for care in PRIMUS and NAVCARE Clinics. This includes active
duty members, Medicare-eligible beneficiaries and other MHSS-eligible
persons not eligible for CHAMPUS.
(3) Services and charges. For care provided PRIMUS and NAVCARE
Clinics, CHAMPUS rules regarding program benefits, deductibles and cost
sharing requirements do not apply. Services offered and charges will be
based on those applicable to care provided in military medical treatment
facilities.
(4) Priority access. Access to care in PRIMUS and NAVCARE Clinics
shall be based on the same order of priority as is established for
military treatment facilities care under paragraph (d)(1) of this
section.
(m) Consolidated schedule of beneficiary charges. The following
consolidated schedule of beneficiary charges is applicable to health
care services provided under TRICARE for Prime enrollees, Standard
enrollees and Medicare-eligible beneficiaries. (There are no charges to
active duty members. Charges for participants in other managed health
care programs affiliated with TRICARE will be specified in the
applicable affiliation agreements.)
(1) Cost sharing for services from TRICARE network providers. (i)
For Prime enrollees, cost sharing is as specified in the Uniform HMO
Benefit in Sec. 199.18, except that for care not authorized by the
primary care manager or Health Care Finder, rules applicable to the
TRICARE point of service option (see paragraph (n)(3) of this section)
are applicable. For such unauthorized care, the deductible is $300 per
person and $600 per family. The beneficiary cost share is 50 percent of
the allowable charges for inpatient and outpatient care, after the
deductible.
(ii) For Standard participants, TRICARE Extra cost sharing applies.
The deductible is the same as standard CHAMPUS. Cost shares are as
follows:
(A) For outpatient professional services, cost sharing will be
reduced from 20 percent to 15 percent for dependents of active duty
members.
(B) For most services for retired members, dependents of retired
members, and survivors, cost sharing is reduced from 25 percent to 20
percent.
(C) In fiscal year 1996, the per diem inpatient hospital copayment
for retirees, dependents of retirees, and survivors when they use a
preferred provider network hospital is $250 per day, or 25 percent of
total charges, whichever is less. There is a nominal copayment for
active duty dependents, which
[[Page 314]]
is the same as under the CHAMPUS program (see Sec. 199.4). The per diem
amount may be updated for subsequent years based on changes in the
standard CHAMPUS per diem.
(iii) For Medicare-eligible beneficiaries, cost sharing will
generally be as applicable to Medicare participating providers.
(2) Cost sharing for non-network providers. (i) For TRICARE Prime
enrollees, rules applicable to the TRICARE point of service option (see
paragraph (n)(3) of this section) are applicable. The deductible is $300
per person and $600 per family. The beneficiary cost share is 50 percent
of the allowable charges, after the deductible.
(ii) For Standard participants, cost sharing is as specified for the
basic CHAMPUS program.
(3) Cost sharing under internal resource sharing agreements. (i) For
Prime enrollees, cost sharing is as provided in military treatment
facilities.
(ii) For Standard participants, cost sharing is as provided in
military treatment facilities.
(iii) For Medicare eligible beneficiaries, where made applicable by
the commander of the military medical treatment facility concerned, cost
sharing will be as provided in military treatment facilities.
(4) Cost sharing under external resource sharing. (i) For Prime
enrollees, cost sharing applicable to services provided by military
facility personnel shall be as applicable to services in military
treatment facilities; that applicable to institutional and related
ancillary charges shall be as applicable to services provided under
TRICARE Prime.
(ii) For TRICARE Standard participants, cost sharing applicable to
services provided by military facility personnel shall be as applicable
to services in military treatment facilities; that applicable to non-
military providers, including institutional and related ancillary
charges, shall be as applicable to services provided under TRICARE
Extra.
(5) Prescription drugs. Cost sharing for prescription drugs is as
provided under the Pharmacy Benefits Program in Sec. 199.21.
(6) Cost share for outpatient services in military treatment
facilities. (i) For dependents of active duty members in all enrollment
categories, there is no charge for outpatient visits provided in
military medical treatment facilities.
(ii) For retirees, their dependents, and survivors in all enrollment
categories, there is no charge for outpatient visits provided in
military medical treatment facilities.
(7) Cost sharing for additional beneficiaries under the TRICARE
Prime Remote Program. (i) Active duty family members, defined as the
lawful husband or wife of a member, and children, as defined in Sec.
199.3(b)(2)(ii)(A) through (b)(2)(ii)(F) and (b)(2)(ii)(H)(1),
(b)(2)(ii)(H)(2), and (b)(2)(ii)(H)(4), residing with their Active Duty
Service Member Sponsor who is TRICARE Prime Remote eligible will have
cost-shares, co-payments, and deductibles waived for services provided
on or after October 30, 2000. Pharmacy Benefits Program cost-shares
established under Sec. 199.21 apply to services provided on or after
April 1, 2001. Active Duty Service Member Sponsors who are TRICARE Prime
Remote eligible are those who receive a remote permanent duty
assignment, and pursuant to the assignment, reside at a location that is
more than 50 miles, or approximately one hour of driving time from the
nearest military medical treatment facility adequate to provide the
needed care. Remote permanent duty assignments include permanent duty as
a recruiter; permanent duty at an educational institution to instruct,
administer a program of instruction, or provide administrative services
in support of a program of instruction for the Reserves Officers'
Training Corps; permanent duty as a full-time adviser to a unit of a
reserve component; or any other permanent duty designated by the
Secretary. This waiver applies to TRICARE covered benefits only. Claims
processed with a date of service beginning on or after October 30, 2000
will waive the cost-share, copayment, and deductible. Active Duty Family
Members residing with TPR eligible Active Duty Service Member (ADSM)
have copayments, cost-shares, and deductibles for CHAMPUS covered
benefits except pharmacy benefits waived until the implementation of
TRICARE Prime Remote for Family Members or
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October 30, 2001, whichever is later. The claims processor will pay the
waived portion of the claim to the eligible family member or to the
provider, as appropriate.
(ii) Eligible family members will be able to access their provider
without preauthorization. To obtain the waiver of charges, eligible
family members are required to use network providers, where available
and within the TRICARE access standards. Failure to do so will result in
claims being processed under TRICARE Standard rules. For beneficiaries
who are enrolled in TRICARE Prime, existing specialty care
preauthorization requirements and Point of Service rules remain in
effect.
(iii) To the greatest extent possible, contractors will assist
eligible members in finding a TRICARE network, participating, or
authorized provider. If a network provider cannot be identified within
the access standards established under TRICARE, the eligible family
member shall use an authorized provider to be eligible for the waiver.
(n) Additional health care management requirements under TRICARE
prime. Prime has additional, special health care management requirements
not applicable under Extra, Standard or the CHAMPUS basic program. Such
requirements must be approved by the Assistant Secretary of Defense
(Health Affairs). In TRICARE, all care may be subject to review for
medical necessity and appropriateness of level of care, regardless of
whether the care is provided in a military medical treatment facility or
in a civilian setting. Adverse determinations regarding care in military
facilities will be appealable in accordance with established military
medical department procedures, and adverse determinations regarding
civilian care will be appealable in accordance with Sec. 199.15.
(1) Primary care manager. (i) All active duty members and Prime
enrollees will be assigned or allowed to select a primary care manager
pursuant to a system established by the MTF Commander or other
authorized official, 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 MTF Commander. This preference will be
entered on a TRICARE Prime enrollment form or similar document.
Preference requests will be honored subject to availability, under the
MTF beneficiary category priority system and other operational
requirements established by the commander and other authorized person.
MTF PCM nonavailability may be a condition of assignment to a civilian
provider network PCM.
(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) Restrictions on the use of providers. The requirements of this
paragraph (n)(2) shall be applicable to health care utilization under
TRICARE Prime, except in cases of emergency care and under the point-of-
service option (see paragraph (n)(3) 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 an authorized Health Care
Finder.
(ii) For any necessary specialty care and nonemergent inpatient
care, the primary care manager or the Health Care Finder will assist in
making an appropriate referral.
(A) For healthcare services provided under managed care support
contracts entered into by the Department of Defense before October 30,
2000, all such nonemergency specialty care and inpatient care must be
preauthorized by the primary care manager or the Health Care Finder.
(B) For healthcare services provided under TRICARE contracts entered
into by the Department of Defense on or after October 30, 2000, referral
requests (consultation requests) for specialty care consultation
appointment services for TRICARE Prime beneficiaries must
[[Page 316]]
be submitted by primary care managers. Such referrals will be authorized
by Health Care Finders (authorizations numbers will be assigned so as to
facilitate claims processing) but medical necessity preauthorization
will not be required by referral consultation appointment services
within the TRICARE contractor's network. Some health care services
subsequent to consultation appointments (invasive procedures,
nonemergent admissions and other health care services as determined by
the Director, TRICARE Management Activity, or a designee) will require
medical necessity preauthorization. Though referrals for specialty care
are generally the responsibility of the primary care managers, subject
to discretion exercised by the regional Lead Agents, 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 or subject to medical
necessity preauthorization.
(iii) The following procedures will apply to health care referrals
and preauthorizations in catchment areas 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)(2)(iii)
(A) through (D) of this section, the enrollee will receive authorization
to obtain services from a CHAMPUS-authorized civilian provider(s) of the
enrollee's choice not affiliated with the civilian preferred provider
network.
(iv) When Prime is operating in noncatchment areas, the requirements
in paragraphs (n)(2)(iii) (B) through (E) of this section shall apply.
(v) Any health care services obtained by a Prime enrollee, but not
obtained in accordance with the utilization management rules and
procedures of Prime will not be paid for under Prime rules, but may be
covered by the point-of-service option (see paragraph (n)(3) 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.
(vi) In accordance with guidelines issued by the Assistant Secretary
of Defense for 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 received on or after October 30, 2000.
Such guidelines shall be consistent with appropriate provisions of
generally applicable Department of Defense rules and procedures
governing travel expenses.
(3) Point-of-service option. TRICARE Prime enrollees retain the
freedom to
[[Page 317]]
obtain services from civilian providers on a point-of-service basis. In
such cases, all requirements applicable to standard CHAMPUS shall apply,
except that there shall be higher deductible and cost sharing
requirements (as set forth in paragraphs (m)(1)(i) and (m)(2)(i) of this
section).
(o) TRICARE program enrollment procedures. There are certain
requirements pertaining to procedures for enrollment in Prime and
TRICARE Prime Remote for Active Duty Family Members. (These procedures
do not apply to active duty members, whose enrollment is mandatory).
(1) Open enrollment. Beneficiaries will be offered the opportunity
to enroll in Prime on a continuing basis.
(2) Enrollment period. The following provisions apply to enrollment
periods on or after March 10, 2003.
(i) Beneficiaries who select the TRICARE Prime option or the TRICARE
Prime Remote for Active Duty Family Members option remain enrolled for
12 months increments until: they take action to disenroll; they are no
longer eligible for enrollment in TRICARE Prime or TRICARE Prime Remote
for Active Duty Family Members; or they are disenrolled for failure to
pay required enrollment fees if applicable. For those who remain
eligible for TRICARE Prime enrollment, no later than 15 days before the
expiration date of an enrollment, the sponsor will be sent a written
notification of the pending expiration and renewal of the TRICARE Prime
enrollment. TRICARE Prime enrollments shall be automatically renewed
upon the expiration of the enrollment unless the renewal is declined by
the sponsor. Termination of enrollment for failure to pay enrollment
fees is addressed in paragraph (o)(3) of this section.
(ii) Exceptions to the 12-month enrollment period.
(A) Beneficiaries who are eligible to enroll in TRICARE Prime but
have less than one year of TRICARE eligibility remaining.
(B) The dependents of a reservist who is called or ordered to active
duty or of a member of the National Guard who is called or ordered to
full-time federal National Guard duty for a period of more than 30 days.
(3) Installment payments of enrollment fee. The enrollment fee
required by Sec. 199.18(c) may be paid in monthly or quarterly
installments. Monthly fees may be payable by an allotment from retired
or retainer pay, or paid from a financial institution through an
electronic transfer of funds. For beneficiaries paying enrollment fees
on an installment basis, failure to make a required installment payment
on a timely basis [including a grace period, as determined by the
Assistant Secretary of Defense (Health Affairs)] will result in
termination of the beneficiary's enrollment in Prime and
disqualification from future enrollment in Prime for a period of one
year.
(4) Voluntary disenrollment. Any non-active duty beneficiary may
disenroll at any time. Disenrollment will take effect in accordance with
administrative procedures established by the Assistant Secretary of
Defense (Health Affairs). Beneficiaries who disenroll prior to their
annual enrollment renewal date will not be eligible to reenroll in Prime
for a one-year period from the effective date of the disenrollment. This
one-year exclusion may be waived by the Assistant Secretary of Defense
(Health Affairs) based on extraordinary circumstances. This one-year
period does not apply to any dependent whose sponsor is in the grade of
E-1 to E-4.
(5) Period revision. Periodically, certain features, rules or
procedures of Prime, Extra and/or Standard may be revised. If such
revisions will have a significant effect on participants' costs or
access to care, beneficiaries will be given the opportunity to change
their enrollment status coincident with the revisions.
(6) Effects of failure to enroll. Beneficiaries offered the
opportunity to enroll in Prime, who do not enroll, will remain in
Standard and will be eligible to participate in Extra on a case-by-case
basis.
(7) Special procedures for certain dependents of active duty members
in pay grades E-1 to E-4. As an exception to other procedures in
paragraph (o) of this section, dependents of active duty members in pay
grades E-1 to E-4, if such dependents reside in a catchment
[[Page 318]]
area of a military hospital, are automatically enrolled in TRICARE
Prime. The applicable military hospital shall provide written notice of
the automatic enrollment to the member and the affected dependents. The
effective date of such automatic enrollment shall be the date of the
written notice, unless an earlier effective date is requested by the
member or affected dependents, so long as the affected dependents were
as of the effective date dependents of an active duty member in pay
grades E-1 to E-4 and residents in a catchment area of a military
hospital. Dependents who are automatically enrolled under this paragraph
may disenroll at any time. Such disenrollment shall remain in effect
until such dependents take specific action to reenroll which such
dependents may do at any time.
(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. Rather, they are independent contractors of
the government (or other independent entities having business
arrangements with the 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. Each preferred provider must have adequate
professional liability insurance, as required by the Federal Acquisition
Regulation, and must agree to indemnify the United States Government for
any liability that may be assessed against the United States Government
that is attributable to any action or omission of the provider.
(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 or provider agreement.
(4) Provider qualifications. All preferred providers must meet the
following qualifications:
(i) They must be CHAMPUS authorized providers and CHAMPUS
participating providers.
(ii) All physicians in the preferred provider network must have
staff privileges in a hospital accredited by the Joint Commission on
Accreditation of Health Care Organizations (JCAHO). 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 JCAHO 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 MTF Commander (or
other authorized official).
(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 not eligible to be
participating providers under Medicare.
(v) The provider must be available to Extra participants.
[[Page 319]]
(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, Extra
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.
(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,
can adequately address the health care needs of the enrollees. Before
offering enrollment in Prime to a beneficiary group, the MTF Commander
(or other authorized person) will assure that the capabilities of the
MTF plus preferred provider network will meet the following access
standards with respect to the needs of the expected number of enrollees
from the beneficiary group being offered enrollment:
(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, OCHAMPUS, 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.
(7) Methods for establishing preferred provider networks. There are
several methods under which the MTF Commander (or other authorized
official) may establish a preferred provider network. These include the
following:
(i) There may be an acquisition under the Federal Acquisition
Regulation, either conducted locally for that catchment area, in a
larger area in concert with other MTF Commanders, regionally as part of
a CHAMPUS acquisition, or on some other basis.
(ii) To the extent allowed by law, there may be a modification by
the Director, OCHAMPUS, of an existing CHAMPUS fiscal intermediary
contract to add TRICARE program functions to the existing
responsibilities of the fiscal intermediary contractor.
(iii) The MTF Commander (or other authorized official) may follow
the ``any qualified provider'' method set forth in paragraph (q) of this
section.
(iv) Any other method authorized by law may be used.
[[Page 320]]
(q) Preferred provider network establishment under any qualified
provider method. The any qualified provider method may be used to
establish a civilian preferred provider network. Under this method, any
CHAMPUS-authorized provider within the geographical area involved that
meets the qualification standards established by the MTF Commander (or
other authorized official) 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 meets all applicable
qualification standards may not be excluded from the preferred provider
network. Qualifications include:
(1) The provider must meet all applicable requirements in paragraph
(p)(4) of this section.
(2) The provider must agree to follow all quality assurance and
utilization management procedures established pursuant to this section.
(3) The provider must be a Participating Provider under CHAMPUS for
all claims.
(4) The provider must meet all other qualification requirements, and
agree to all other rules and procedures, that are established, publicly
announced, and uniformly applied by the commander (or other authorized
official).
(5) 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 MTF Commander (or other authorized official) upon appropriate
notice to the other party. The Director, OCHAMPUS shall establish an
agreement model or other guidelines to promote uniformity in the
agreements.
(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
199 (see especially applicable provisions of Sec. 199.9) are applicable
to the TRICARE program. Some methods and procedures for implementing and
enforcing these requirements may differ from the methods and procedures
followed under the basic CHAMPUS program in areas in which the TRICARE
program has not been implemented.
(s) Partial implementation. The Assistant Secretary of Defense
(Health Affairs) may authorize the partial implementation of the TRICARE
program. The following are examples of partial implementation:
(1) The TRICARE Extra Plan and the TRICARE Standard Plan may be
offered without the TRICARE Prime Plan.
(2) In remote sites, where complete implementation of TRICARE is
impracticable, TRICARE Prime may be offered to a limited group of
beneficiaries. In such cases, normal requirements of TRICARE Prime which
the Assistant Secretary of Defense (Health Affairs) determines are
impracticable may be waived.
(3) The TRICARE program may be limited to particular services, such
as mental health services.
(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,
OCHAMPUS, or designated TRICARE contractor.
(u) Care provided outside the United States to dependents of active
duty members. The Assistant Secretary of Defense (Health Affairs) may,
in conjunction with implementation of the TRICARE program, authorize a
special CHAMPUS program for dependents of active duty members who
accompany the members in their assignments in foreign countries. Under
this special program, a preferred provider network will be established
through contracts or agreements with selected health care providers.
Under the network, CHAMPUS covered services will be provided to the
covered dependents with all CHAMPUS requirements for deductibles and
copayments waived. The use of this authority by the Assistant Secretary
of Defense (Health Affairs) for any particular geographical area will be
announced in the Federal Register. The announcement will include a
description of the preferred
[[Page 321]]
provider network program and other pertinent information.
(v) Administrative procedures. The Assistant Secretary of Defense
(Health Affairs), the Director, TRICARE Management Activity, 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.
[60 FR 52095, Oct. 5, 1995, as amended at 63 FR 9142, Feb. 24, 1998; 63
FR 48447, Sept. 10, 1998; 64 FR 13913, Mar. 23, 1999; 65 FR 39805, June
28, 2000; 65 FR 45425, July 21, 2000; 66 FR 9655, Feb. 9, 2001; 66 FR
40608, Aug. 3, 2001; 67 FR 5479, Feb. 6, 2002; 67 FR 6409, Feb. 12,
2002; 68 FR 23033, Apr. 30, 2003; 68 FR 32363, May 30, 2003; 68 FR
44881, 44883, July 31, 2003]
Sec. 199.18 Uniform HMO Benefit.
(a) In general. There is established a Uniform HMO Benefit. The
purpose of the Uniform HMO benefit is to establish a health benefit
option modeled on health maintenance organization plans. This benefit is
intended to be uniform wherever offered throughout the United States and
to be included in all managed care programs under the MHSS. Most care
purchased from civilian health care providers (outside an MTF) will be
under the rules of the Uniform HMO Benefit or the Basic CHAMPUS Program
(see Sec. 199.4). The Uniform HMO Benefit shall apply only as specified
in this section or other sections of this part, and shall be subject to
any special applications indicated in such other sections.
(b) Services covered under the uniform HMO benefit option. (1)
Except as specifically provided or authorized by this section, all
CHAMPUS benefits provided, and benefit limitations established, pursuant
to this part, shall apply to the Uniform HMO Benefit.
(2) Certain preventive care services not normally provided as part
of basic program benefits under CHAMPUS are covered benefits when
provided to Prime enrollees by providers in the civilian provider
network. 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:
(i) Laboratory and x-ray tests, including blood lead, rubella,
cholesterol, fecal occult blood testing, and mammography;
(ii) Pap smears;
(iii) Eye exams;
(iv) Immunizations;
(v) Periodic health promotion and disease prevention exams;
(vi) Blood pressure screening;
(vii) Hearing exams;
(viii) Sigmoidoscopy or colonoscopy;
(ix) Serologic screening; and
(x) Appropriate education and counseling services. The exact
services offered shall be established under uniform standards
established by the Assistant Secretary of Defense (Health Affairs).
(3) In addition to preventive care services provided pursuant to
paragraph (b)(2) 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 include the Uniform HMO
Benefit. Any such other enhancements or changes must be approved by the
Assistant Secretary of Defense (Health Affairs) based on uniform
standards.
(c) Enrollment fee under the uniform HMO benefit. (1) The CHAMPUS
annual deductible amount (see Sec. 199.4(f)) is waived under the
Uniform HMO Benefit during the period of enrollment. In lieu of a
deductible amount, an annual enrollment fee is applicable. The specific
enrollment fee requirements shall be published annually by the Assistant
Secretary of Defense (Health Affairs), and shall be uniform within the
following groups: dependents of active duty members in pay grades of E-4
and below; active duty dependents of sponsors in pay grades E-5 and
above; and retirees and their dependents.
(2) Amount of enrollment fees. In fiscal year 2001, the annual
enrollment fee for retirees and their dependents is $230 individual,
$460 family.
(3) Waiver of enrollment fee for certain beneficiaries. The
Assistant Secretary of Defense (Health Affairs) may waive the enrollment
fee requirements of this section for Medicare-eligible beneficiaries.
[[Page 322]]
(d) Outpatient cost sharing requirements under the uniform HMO
benefit--(1) In general. In lieu of usual CHAMPUS cost sharing
requirements (see Sec. 199.4(f)), special reduced cost sharing
percentages or per service specific dollar amounts are required. The
specific requirements shall be uniform and shall be published
periodically by the Assistant Secretary of Defense (Health Affairs). For
care provided on or after April 1, 2001, no copayment shall be charged
for care provided under TRICARE Prime to a dependent of an active duty
member, except for the copayments charged under the Pharmacy Benefits
Program (see Sec. 199.21) and under the point of service option of
TRICARE Prime (see Sec. 199.17(n)(4)).
(2) Structure of outpatient cost sharing. The special cost sharing
requirements for outpatient services include the following specific
structural provisions:
(i) For most physician office visits and other routine services,
there is a per visit fee for retirees and their dependents. This fee
applies to primary care and specialty care visits, except as provided
elsewhere in this paragraph (d)(2) of this section. It also applies to
family health services, home health care visits, eye examinations, and
immunizations. It does not apply to ancillary health services or to
preventive health services described in paragraph (b)(2) of this
section, or to maternity services under Sec. 199.4(e)(16).
(ii) There is a copayment for outpatient mental health visits. It is
a per visit fee for retirees and their dependents for individual visits.
For group visits, there is a lower per visit fee for retirees and their
dependents.
(iii) There is a cost share of durable medical equipment, prosthetic
devices, and other authorized supplies for retirees and their
dependents.
(iv) For emergency room services, there is a per visit fee for
retirees and their dependents.
(v) For ambulatory surgery services, there is a per service fee for
retirees and their dependents.
(vi) There is a copayment for prescription drugs per prescription,
including medical supplies necessary for administration, for dependents
of active duty members and for retirees and their dependents under the
Pharmacy Benefits Program (see Sec. 199.17(m)(5)).
(vii) There is a copayment for ambulance services for retirees and
their dependents.
(3) Amount of outpatient cost sharing requirements. In fiscal year
2001, the outpatient cost sharing requirements are as follows:
(i) For most physician office visits and other routine services, as
described in paragraph (d)(2)(i) of this section, the per visit fee for
retirees and their dependents is $12.
(ii) For outpatient mental health visits, the per visit fee for
retirees and their dependents is $25. For group outpatient mental health
visits, there is a lower per visit fee for retirees and their dependents
of $17.
(iii) The cost share for durable medical equipment, prosthetic
devices, and other authorized supplies for retirees and their dependents
is 20 percent of the negotiated fee.
(iv) For emergency room services, the per visit fee for retirees and
their dependents is $30.
(v) For primary surgeon services in ambulatory surgery, the per
service fee for retirees and their dependents is $25.
(vi) The copayments for prescription drugs are established under the
Pharmacy Benefits Program (see Sec. 199.21).
(vii) The copayment for ambulance services for retirees and their
dependents is $20.
(e) Inpatient cost sharing requirements under the uniform HMO
benefit--(1) In general. In lieu of usual CHAMPUS cost sharing
requirements (see Sec. 199.4(f)), special cost sharing amounts are
required. The specific requirements shall be uniform and shall be
published periodically by the Assistant Secretary of Defense (Health
Affairs). For services provided on or after April 1, 2001, no co-payment
shall be charged for inpatient care provided under TRICARE Prime to a
dependent of an active duty member except under the point of service
option of TRICARE Prime (see Sec. 199.17(n)(4)). In addition, for
services provided on or after April 1, 2001, no copayment shall be
charged for inpatient care provided under TRICARE Prime to a dependent
of an active duty member in military medical treatment facilities.
[[Page 323]]
(2) Structure of cost sharing. For services other than mental
illness or substance use treatment, there is a nominal copayment for
retired members, dependents of retired members, and survivors. For
inpatient mental health and substance use treatment, a separate per day
charge is established. For services provided on or after April 1, 2001,
no inpatient copayment shall be charged an active duty dependent
enrolled in TRICARE Prime. This elimination of inpatient copayments
applies to active duty dependents enrolled in TRICARE Prime who are
admitted to a civilian or military inpatient facility.
(3) Amount of inpatient cost sharing requirements. In fiscal year
2001, the inpatient cost sharing requirements for retirees and their
dependents for acute care admissions and other non-mental health/
substance use treatment admissions is a per diem charge of $11, with a
minimum charge of $25 per admission. For mental health/substance use
treatment admissions, and for partial hospitalization services, the per
diem charge for retirees and their dependents is $40.
(f) Limit on out-of-pocket costs under the uniform HMO benefit. (1)
Total out-of-pocket costs per family of dependents of active duty
members under the Uniform HMO Benefit may not exceed $1,000 during the
one-year enrollment period. Total out-of-pocket costs per family of
retired members, dependents of retired members and survivors under the
Uniform HMO Benefit may not exceed $3,000 during the one-year enrollment
period. For this purpose, out-of-pocket costs means all payments
required of beneficiaries under paragraphs (c), (d), and (e) of this
section. In any case in which a family reaches this limit, all remaining
payments that would have been required of the beneficiary under
paragraphs (c), (d), and (e) of this section will be made by the program
in which the Uniform HMO Benefit is in effect.
(2) The limits established by paragraph (f)(1) of this section do
not apply to out-of-pocket costs incurred pursuant to paragraph
(m)(1)(i) or (m)(2)(i) of Sec. 199.17 under the point-of-service option
of TRICARE Prime.
(g) Updates. The enrollment fees for fiscal year 2001 set under
paragraph (c) of this section and the per service specific dollar
amounts for fiscal year 2001 set under paragraphs (d) and (e) of this
section may be updated for subsequent years to the extent necessary to
maintain compliance with statutory requirements pertaining to government
costs. This updating does not apply to cost sharing that is expressed as
a percentage of allowable charges; these percentages will remain
unchanged.
[60 FR 52101, Oct. 5, 1995, as amended at 63 FR 9143, Feb. 24, 1998; 63
FR 48448, Sept. 10, 1998; 66 FR 9656, Feb. 9, 2001; 66 FR 16400, Mar.
26, 2001]
Sec. 199.20 Continued Health Care Benefit Program (CHCBP).
(a) Purpose. The CHCBP is a premium based temporary health care
coverage program that will be available to qualified beneficiaries (set
forth in paragraph (d)(1) of this section). Medical coverage under this
program will mirror the benefits offered via the basic CHAMPUS program.
Premium costs for this coverage are payable by enrollees to a Third
Party Administrator. The CHCBP is not part of the CHAMPUS program.
However, as set forth in this section, it functions under most of the
rules and procedures of CHAMPUS. Because the purpose of the CHCBP is to
provide a continuation health care benefit for the Department of Defense
and the other Uniformed Services (e.g., NOAA, PHS, and the Coast Guard)
health care beneficiaries losing eligibility, it will be administered so
that it appears, to the maximum extent possible, to be part of CHAMPUS.
(b) General provisions. Except for any provisions the Director,
OCHAMPUS may exclude, the general provisions of Sec. 199.1 shall apply
to the CHCBP as they do to CHAMPUS.
(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 CHAMPUS.
(d) Eligibility and enrollment--(1) Eligibility. Enrollment in the
CHCBP is open to the following individuals:
(i) Members of Uniformed Services, who:
[[Page 324]]
(A) Are discharged or released from active duty (or full time
National Guard duty), whether voluntarily or involuntarily, under other
than adverse conditions;
(B) Immediately preceding that discharge or release, were entitled
to medical and dental care under 10 U.S.C. 1074(a) (except in the case
of a member discharged or released from full-time National Guard duty);
and,
(C) After that discharge or release and any period of transitional
health care provided under 10 U.S.C. 1145(a) would not otherwise be
eligible for any benefit under 10 U.S.C. chapter 55.
(ii) A person who:
(A) Ceases to meet requirements for being considered an unmarried
dependent child of a member or former member of the armed forces under
10 U.S.C. 1072(2)(D);
(B) On the day before ceasing to meet those requirements, was
covered under a health benefits plan under 10 U.S.C. chapter 55, or
transitional health care under 10 U.S.C. 1145(a) as a dependent of the
member or former member; and,
(C) Would not otherwise be eligible for any benefits under 10 U.S.C.
chapter 55.
(iii) A person who:
(A) Is an unremarried former spouse of a member or former member of
the armed forces;
(B) On the day before the date of the final decree of divorce,
dissolution, or annulment was covered under a health benefits plan under
10 U.S.C. chapter 55, or transitional health care under 10 U.S.C.
1145(a) as a dependent of the member or former member; and,
(C) Is not a dependent of the member or former member under 10
U.S.C. 1072(2)(F) or (G) or ends a one-year period of dependency under
10 U.S.C. 1072(2)(H).
(iv) An unmarried person who:
(A) Is placed in the legal custody of a member or former member by a
court or who is placed in the home of a member or former member by a
recognized placement agency in anticipation of the legal adoption of the
child; and
(B) Either:
(1) Has not attained the age of 21 if not in school or age 23 if
enrolled in a full time course of study at an institution of higher
learning; or
(2) Is incapable of self-support because of a mental or physical
incapacity which occurred while the person was considered a dependent of
the member or former member; and
(C) Is dependent on the member or former member for over one-half of
the person's support; and
(D) 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; and
(E) Is not a dependent of a member or former member as described in
Sec. 199.3(b)(2).
(2) Effective date. Except for the special transitional provisions
in paragraph (r) of this section, eligibility in the CHCBP is limited to
individuals who lost their entitlement to regular military health
services system benefits on or after October 1, 1994.
(3) Notification of eligibility. (i) The Department of Defense and
the other Uniformed Services (National Oceanic and Atmospheric
Administration (NOAA), Public Health Service (PHS), Coast Guard) will
notify persons eligible to receive health benefits under the CHCBP.
(ii) 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.
(iii) In the case of a child of a member or former member who
becomes eligible for continued coverage:
(A) The member or former member may submit to the Third Party
Administrator a notice of the child's change in status (including the
child's name, address, and such other information needed); and
(B) The Third Party Administrator, within 14 days after receiving
such information, will inform the child of the child's rights under 10
U.S.C. 1142.
(iv) In the case of a former spouse of a member or former member who
becomes eligible for continued coverage, the Third Party Administrator
will notify the individual of eligibility for CHCBP when he or she
declares the change in marital status to a military personnel office.
[[Page 325]]
(4) Election of coverage. (i) In order to obtain continued coverage,
written election by eligible beneficiary must be made, within a
prescribed time period. In the case of a member discharged or released
from active duty (or full time National Guard duty), whether voluntarily
or involuntarily; an unremarried spouse of a member or former member; or
a child emancipated from a member or former member, the written election
shall be submitted to the Third Party Administrator before the end of
the 60-day period beginning on the later of:
(A) The date of the discharge or release of the member from active
duty or full-time National Guard duty;
(B) The date on which the period of transitional health care
applicable to the member under 10 U.S.C. 1145(a) ends;
(C) In the case of an unremarried former spouse of a member or
former member, the date the one-year extension of dependency under 10
U.S.C. 1072(2)(H) expires; or
(D) The date the member receives the notification of eligibility.
(ii) A member of the armed forces who is eligible for enrollment
under paragraph (d)(1)(i) 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.
(5) Enrollment. Enrollment in the Continued Health Care Benefit
Program will be accomplished by submission of an application to a Third
Party Administrator (TPA). Upon submittal of an application to the Third
Party Administrator, the enrollee must submit proof of eligibility. One
of the following types of evidence will validate eligibility for care:
(i) A Defense Enrollment Eligibility Reporting System (DEERS)
printout which indicates the appropriate sponsor status and the
sponsor's and dependent's eligibility dates;
(ii) A copy of a verified and approved DD Form 1172, ``Application
for Uniformed Services Identification and Privilege Card'';
(iii) A front and back copy of a DD Form 1173, ``Uniformed Services
Identification and Privilege Card'' overstamped ``TA'' for Transition
Assistance Management Program; or
(iv) A copy of a DD Form 214--``Certificate of Release or Discharge
from Active Duty''.
(6) Period of coverage. CHCBP coverage may not extend beyond:
(i) For a member discharged or released from active duty (or full
time National Guard duty), whether voluntarily or involuntarily, the
date which is 18 months after the date the member ceases to be entitled
to care under 10 U.S.C. 1074(a) and any transitional care under 10
U.S.C. 1145.
(ii) In the case of an unmarried dependent 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).
(iii) In the case of an unremarried former spouse of a member or
former member, the date which is 36 months after the later of:
(A) The date on which the final decree of divorce, dissolution, or
annulment occurs; or
(B) If applicable, the date the one-year extension of dependency
under 10 U.S.C. 1072(2)(H) expires.
(iv) In the case of an unremarried former spouse of a member or
former member, whose divorce occurred prior to the end of transitional
coverage, the period of coverage under the CHCBP is unlimited, if:
(A) Has not remarried before the age of 55; and
(B) Was enrolled in the CHCBP as the dependent of an involuntarily
separated member during the 18-month period before the date of the
divorce, dissolution, or annulment; and
(C) 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
(D) Has a court order for payment of any portion of the retired or
retainer pay; or
(E) Has a written agreement (whether voluntary or pursuant to a
court order) which provides for an election by the member or former
member to provide an annuity to the former spouse.
(v) For the beneficiary who becomes eligible for the Continued
Health Care Benefit Program by ceasing to meet
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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).
(vi) Though beneficiaries have sixty-days (60) to elect coverage
under the CHCBP, upon enrolling, the period of coverage must begin the
day after entitlement to a military health care plan (including
transitional health care under 10 U.S.C. 1145(a)) ends.
(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 CHAMPUS.
(2) Exceptions. The following provisions of Sec. 199.4 are not
applicable to the CHCBP:
(i) Paragraph (a)(2) of this section concerning eligibility:
(ii) All provisions regarding nonavailability statements or
requirements to use facilities of the Uniformed Services.
(3) Beneficiary liability. For purposes of CHAMPUS deductible and
cost sharing requirements and catastrophic cap limits, amounts
applicable to the categories of beneficiaries to which the CHCBP
enrollee last belonged shall continue to apply, except that for
separating active duty members, amounts applicable to dependents of
active duty members shall apply.
(f) Authorized providers. The provisions of Sec. 199.6 shall apply
to the CHCBP as they do to CHAMPUS.
(g) Claims submission, review, and payment. The provisions of Sec.
199.7 shall apply to the CHCBP as they do to CHAMPUS, except that 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 CHAMPUS.
(i) Fraud, abuse, and conflict of interest. Administrative remedies
for fraud, abuse and conflict of interest. The provisions of Sec. 199.9
shall apply to the CHCBP as they do to CHAMPUS.
(j) Appeal and hearing procedures. The provisions of Sec. 199.10
shall apply to the CHCBP as they do to CHAMPUS.
(k) Overpayment recovery. The provisions of Sec. 199.11 shall apply
to the CHCBP as they do to CHAMPUS.
(l) Third Party recoveries. The provisions of Sec. 199.12 shall
apply to the CHCBP as they do to CHAMPUS.
(m) Provider reimbursement methods. The provisions of Sec. 199.14
shall apply to the CHCBP as they do to CHAMPUS.
(n) Peer Review Organization Program. The provisions of Sec. 199.15
shall apply to the CHCBP as they do to CHAMPUS.
(o) Preferred provider organization programs available. Any
preferred provider organization program under this part that provides
for reduced cost sharing for using designated providers, such as the
``TRICARE Extra'' option under Sec. 199.17, shall be available to
participants in the CHCBP as it is to CHAMPUS beneficiaries.
(p) Special programs not applicable--(1) In general. Special
programs established under this part that are not part of the basic
CHAMPUS program established pursuant to 10 U.S.C. 1079 and 1086 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:
(i) The Program for Persons with Disabilities under Sec. 199.5;
(ii) The Active Duty Dependents Dental Plan under Sec. 199.13;
(iii) The Supplemental Health Care Program under Sec. 199.16; and
(iv) The TRICARE Enrollment Program under Sec. 199.17, except for
TRICARE Extra program under that section.
(3) Exemptions to the restriction. In addition to the provision to
make TRICARE Extra available to CHCBP beneficiaries, the following two
demonstration projects are also available to CHCBP enrollees:
(i) Home Health Care Demonstration; and
(ii) Home Health Care-Case Management Demonstration.
(q) Premiums--(1) Rates. Premium rates will be established by the
Assistant Secretary of Defense (Health Affairs) for two rate groups--
individual
[[Page 327]]
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 Employee Health Benefit Program employee and agency
contributions required for a comparable health benefits plan, plus 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 annually for each fiscal year.
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 which are late 30 days or more past the start of the
quarter for which payment is due will result in the ending 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 day (90)
period for which a premium payment was received. Enrollees will be held
liable for medical costs incurred after losing eligibility.
(r) Transitional provisions. (1) There will be a sixty-day period of
enrollment for all eligible beneficiaries (outlined in paragraph (d)(1)
of this section) whose entitlement to regular military health services
system coverage ended on or after August 2, 1994, but prior to the CHCBP
implementation on October 1, 1994.
(2) Enrollment in the U.S. VIP program may continue up to October 1,
1994. Policies written prior to October 1, 1994, will remain in effect
until the end of the policy life.
(3) On or after the October 1, 1994, implementation of the Continued
Health Care Benefit Program, beneficiaries who enrolled in the U.S. VIP
program prior to October 1, 1994, may elect to cancel their U.S. VIP
policy and enroll in the CHCBP.
(4) With the exception of persons enrolled in the U.S. VIP program
who may convert to the CHCBP, individuals who lost their entitlement to
regular military health services system coverage prior to August 2,
1994, are not eligible for the CHCBP.
(s) Procedures. The Director, OCHAMPUS, may establish other rules
and procedures for the administration of the Continued Health Care
Benefit Program.
[59 FR 49818, Sept. 30, 1994, as amended at 62 FR 35097, June 30, 1997;
64 FR 46141, Aug. 24, 1999]
Sec. 199.21 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. The pharmacy benefits program, which
includes the uniform formulary and its associated tiered co-payment
structure, is applicable to all of the uniformed services. Its
geographical applicability is 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), the
TRICARE 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 Assistant Secretary of Defense (Health Affairs) may also
authorize modifications to the pharmacy benefits program rules as may be
appropriate to the areas involved.
(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.
[[Page 328]]
(ii) As required by 10 U.S.C. 1074g(a)(2) and implemented under the
procedures established by paragraphs (e) and (f) of this seciton,
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 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 inculsion 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.
(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.
[[Page 329]]
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 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;
[[Page 330]]
(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.
(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 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.
(h) Obtaining pharmacy services under the 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).
[[Page 331]]
(2) Availability of formulary pharmaceutical agents--(i) General.
Subject to paragraph (h)(2)(ii) of this section, formulary
pharmaceutical agents are available under the Pharmacy Benefits Program
from all of the points of service identified in paragraph (h)(1) of this
section.
(ii) Availability of formulary pharmaceutical agents at military
treatment facilities. Pharmaceutical agents included on the uniform
formulary are available through MTFs, consistent with the scope of
health care services offered in such facilities. The Basic Core
Formulary (BCF) is a subset of the uniform formulary and is a mandatory
component of all MTF pharmacy formularies. The BCF contains the minimum
set of pharmaceutical agents that each MTF pharmacy must have on its
formulary to support the primary care scope of practice for Primary Care
Manager enrollment sites. Additions to individual MTF formularies are
determined by local Pharmacy and Therapeutics Committees based on the
scope of health care services provided at the respective MTFs. All
pharmaceutical agents on the local MTF formulary must be available to
all categories of beneficiaries.
(3) Availability of non-formulary pharmaceutical agents--(i)
General. Non-formulary pharmaceutical agents are generally available
under the pharmacy benefits program from the retail network pharmacies,
retail non-network pharmacies, and the TRICARE Mail Order Pharmacy
(TMOP) at the non-formulary cost-share.
(ii) Availability of non-formulary pharmaceutical agents at military
treatment facilities. Although not a beneficiary entitlement, non-
formulary pharmaceutical agents may be made available to eligible
covered beneficiaries through the MTF pharmacies for prescriptions
approved through the non-formulary special order process that validates
the 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.
(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
[[Page 332]]
not pay cost-shares. For other categories of beneficiaries, cost-sharing
amounts are as follows:
(i) For pharmaceutical agents obtained from a military treatment
facility, there is no co-payment.
(ii) For pharmaceutical agents obtained from a retail network
pharmacy there is a:
(A) $9.00 co-payment per prescription required for up to a 30-day
supply of a formularly pharmaceutical agent.
(B) $3.00 co-payment per prescription for up to a 30-day supply of a
generic pharmaceutical agent.
(C) $22.00 co-payment per prescription for up to a 30-day supply of
a non-formulary pharmaceutical agent.
(iii) For formulary and generic pharmaceutical agents obtained from
a retail non-network pharmacy there is a 20 percent or $9.00 co-payment
(whichever is greater) per prescription for up to a 30-day supply of the
pharmaceutical agent.
(iv) For non-formulary pharmaceutical agents obtained at a retail
non-network pharmacy there is a 20 percent or $22.00 co-payment
(whichever is greater) per prescription for up to a 30-day supply of the
pharmaceutical agent.
(v) For pharmaceutical agents obtained under the TMOP program there
is a:
(A) $9.00 co-payment per prescription for up to a 90-day supply of a
formulary pharmaceutical agent.
(B) $3.00 co-payment for up to a 90-day supply of a generic
pharmaceutical agent.
(C) $22.00 co-payment for up to a 90-day supply of a non-formulary
pharmaceutical agent.
(vi) For TRICARE Prime beneficiaries who obtain prescriptions from
retail non-network pharmacies, the enrollment year deductible for
outpatient claims is $300 per individual; $600 per family; and a point
of service cost-share of 50 percent thereafter applies in lieu of the 20
percent co-payment.
(vii) Except as provided in paragraph (h)(2)(viii) of this section,
for pharmaceutical agents acquired by TRICARE Standard beneficiaries
from retail non-network pharmacies, beneficiaries are subject to the
$150.00 per individual or $300.00 maximum per family annual fiscal year
deductible.
(viii) Under TRICARE Standard, dependents of members of the
uniformed services whose pay grade is E-4 or below are subject to the
$50.00 per indiviudal or $100.00 maximum per family annual fiscal year
deductible.
(ix) The TRICARE catastrophic cap limits apply to pharmacy benefits
program cost-sharing.
(x) The per prescription co-payments established in this paragraph
(i)(2) of this section may be adjusted periodically based on experience
with the uniform formulary, changes in economic circumstances, and other
appropriate factors. Any such adjustment may be made upon the
recommendation of the Pharmacy and Therapeutics Committee and approved
by the Assistant Secretary of Defense (Health Affairs). Any such
adjusted amount will maintain compliance with the requirements of 10
U.S.C. 1074g(a)(6).
(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
[[Page 333]]
(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 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.
(k) Preauthorization of certain pharmaceutical agents. (1) Selected
pharmaceutical agents may be subject to prior
[[Page 334]]
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
Sec. 199.8 of this part are applicable to services provided under the
pharmacy benefits program. For this purpose, to the extent they provide
a prescription drug benefit, Medicare supplemental insurance plans or
Medicare HMO plans are double coverage plans and will be the primary
payor. Beneficiaries who elect to use this 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 section. Preemption, however,
does not apply to taxes, fees, or other payments
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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.
[69 FR 17048, Apr. 1, 2004]
Sec. 199.22 TRICARE Retiree Dental Program (TRDP).
(a) Purpose. The TRDP is a premium based indemnity dental insurance
coverage program that will be available to retired members of the
Uniformed Services, their dependents, and certain other beneficiaries,
as specified in paragraph (d) of this section. The TRDP is authorized by
10 U.S.C. 1076c.
(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, OCHAMPUS, or
designee.
(2) Premium costs for this coverage will be paid by the enrollee.
(3) The program 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.
(4) Except as otherwise provided in this section or by the Assistant
Secretary of Defense (Human Affairs) or designee, the TRDP is
administered in a manner similar to the Active Duty Dependents Dental
Plan under Sec. 199.13 of this part.
(5) The TRDP shall be administered through a contract.
(c) Definitions. Except as may be specifically provided in this
section, to the extent terms defined in Sec. Sec. 199.2 and 199.13(b)
of this part are relevant to the administration of the TRICARE Retiree
Dental Program, the definitions contained in Sec. Sec. 199.2 and
199.13(b) of this part shall apply tothe TRDP as they do to CHAMPUS and
the TRICARE Active Duty Dependents Dental Plan.
(d) Eligibility and enrollment.--(1) Eligibility. Enrollment in the
TRICARE Retiree Dental Programis 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, month-to-month 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.
[[Page 336]]
(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 eligible for the Active Duty Dependents Dental
Plan.
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, OCHAMPUS, or
designee, when such coverage is offered, 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 periods of up to 12 months as long as the
enrollee chooses to continue enrollment and remains eligible. An
enrollee's disenrollment from the TRDP during an enrollment period for
any reason, including termination for failure to pay premiums, is
subject to a lockout period of 12 months. This lockout provision does
not apply to disenrollment during an enrollment grace period as defined
in paragraph (d)(5)(ii) of this section or following
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completion of an initial or renewal enrollment period. Eligible
individuals who elect to reenroll following a lockout period or a
disenrollment after completion of an enrollment period are subject to a
new initial enrollment period.
(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. Regardless of the reason, TRDP coverage
shall be canceled, or otherwise terminated, upon written request from an
enrollee if the request is received by the TRDP contractor within thirty
(30) calendar days following the enrollment effective date and there has
been no use of TRDP benefits by the enrolled member, enrolled spouse, or
enrolled dependents 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 voluntary disenrollment before
the end of the initial enrollment period will not be honored, and
premiums will not be refunded.
(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
monthly renewal premium payments will result in the enrollee's
disenrollment from the TRDP and subject to a lock-out period of 12
months. Following this period of time, persons eligible will be able to
reenroll if they so choose.
(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, OCHAMPUS, 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, 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 TRDP.
(1) Basic benefits. The minimum TRDP benefit is basic dental care to
include diagnostic services, preventive services, basic restorative
services (including endodontics), oral surgery services, and emergency
services. The following is the minimum TRDP covered dental benefit
(using the American Dental Association's The Council on Dental Care
Program's Code on Dental Procedures and Nomenclature):
(i) Diagnostic Periodic oral evaluation (00120); Comprehensive oral
evaluation (limited to one exam per year in the same dental office)
(00150), Intraoral-complete series (including bitewings) (00210);
Intraoral-periapical-first film (00220); Intraoral-periapical-each
additional film (00230); Intraoral-occlusal film (00240); Bitewings-
single film (00270); Bitewings-two films (00272); Bitewings-four films
(00274); Panoramic film (00330); Caries susceptibility tests, by report
(00425); Pulp vitality tests (00460).
(ii) Preventive: Prophaylaxis-adult (limit-once per year) (01110);
Prophylaxis-child (01120); Topical application
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of fluoride (excluding prophylaxis)-child (01203); Topical application
of fluoride (excluding prophylaxis)-adult, by report, once per year
(01204); Sealant-per tooth (01351); Space maintainer-fixed-unilateral
(01510); Space maintainer-fixed-bilateral (01515); Space maintainer-
removable-unilateral (01520); Space maintainer-removable-bilateral
(01525); Recementation of space maintainer (01550).
(iii) Restorative: Amalgam-one surface, primary (02110); Amalgam-two
surfaces, primary (02120); Amalgam-three surfaces, primary (02130);
Amalgam-four or more surfaces, primary (02131); Amalgam-one surface,
permanent (02140); Amalgam-two surfaces, permanent (02150); Amalgam-
three surfaces, permanent (02160); Amalgam-four or more surfaces,
permanent (02161); Resin-one surface, anterior (02330); Resin-two
surfaces, anterior (02331); Resin-three surfaces, anterior (02332);
Resin-four or more surfaces or involving incisal angle (anterior)
(02335); Recement inlay (02910); Recement crown (02920); Prefabricated
stainless steel crown-primary tooth (02930); Prefabricated stainless
crown-permanent tooth (02931); Prefabricated resin crown (02932);
Prefabricated stainless steel crown with resin window (02933); Pin
retention-per tooth, in addition to restoration (02951); Temporary crown
(fractured tooth) (02970).
(iv) Endodontic: Pulp cap-indirect (excluding final restoration)
(03120); Therapeutic pulpotomy (excluding final restoration) (03220);
Pulpal therapy (resorbable filling)-anterior, primary tooth (excluded
final restoration) (03230); Pulpal therapy (resorbable filling)-
posterior, primary tooth (excluded final restoration) (03240); Anterior
root canal (excluding final restoration) (03310); Bicuspid root canal
(excluding final restoration) (03320); Molar root canal (excluding final
restoration) (03330); Retreatment-anterior, by report (03346);
Retreatment-bicuspid, by report (03347); Retreatment-molar, by report
(03348); Apexification/recalcification-initial visit (apical closure/
calcific repair of perforations, root resorption, etc.) (03351);
Apexification/recalcification-interim medication replacement (apical
closure/calcific repair of perforations, root resorption, etc.) (03352);
Apexification/recalcification-final visit (includes completed root canal
therapy-apical closure/calcific repair of perforations, root resorption,
etc.) (03353); Apicoectomy/Periradicular surgery-anterior (03410);
Apicoectomy/Periradicular surgery-bicuspid (first root) (03421);
Apicoectomy/Periradicular surgery-molar (first root) (03425);
Apicoectomy/Periradicular surgery (each additional root) (03426);
Retrograde filling-per root (03430); Root amputation-per root (03450);
Hemisection (including any root removal), not including root canal
therapy (03920).
(v) Periodontic: Gingivectomy or gingivoplasty-per quadrant (04210);
Gingivectomy or gingivoplasty-per tooth (04211); Gingival curettage,
surgical, per quadrant, by report (04220); Gingival flap procedure,
including root planing-per quadrant (04240); Mucogingival surgery-per
quadrant (04250); Osseous surgery (including flap entry and closure)-per
quadrant (04260); Bone replacement graft-single site (including flap
entry and closure) (04263); Bone replacement graft-multiple sites
(including flap entry and closure) (04264); Guided tissue regeneration--
resorbable barrier (04266); Guided tissue regeneration--nonresorbable
barrier (04267); Pedicle soft tissue graft procedure (04270); Free soft
tissue graft procedure (including donor site) (04271); Periodontal
scaling and root planing-per quadrant (04341); Periodontal maintenance
procedures (following active therapy) (04910); Unscheduled dressing
change (by someone other than treating dentist) (04920).
(vi) Oral Surgery: Single tooth (07110); Each additional tooth
(07120); Root removal-exposed roots (07130) Surgical removal or erupted
tooth requiring elevation of mucoperiosteal flap and removal of bone
and/or section of tooth (07210); Removal of impacted tooth-soft tissue
(07220); Removal of impacted tooth-partially bony (07230); Removal of
impacted tooth-completely bony (07240); Surgical removal of residual
tooth roots (cutting procudure) (07250); Oral antral fistula closure
(07260); Tooth reimplantation and/or stabilization of accidentially
evulsed or displaced tooth and/or alveolus (07270); Surgical exposure of
impacted
[[Page 339]]
or unerupted tooth to aid eruption (07281); Biopsy of oral tissue-hard
(07285); Biopsy of oral tissue-soft (07286); Surgical repositioning of
teeth (074290); Alveoloplasty in conjunction with extractions-per
quadrant (07310); Suture of recent small wounds up to 5 cm (07910);
Complicated suture-up to 5 cm (07911); Complicated suture-greater than 5
cm (07912); Excision of pericoronal gingiva (07971).
(vii) Emergency: Limited oral evaluation--problem focused (00140);
Palliative (emergency) treatment of dental pain-minor procedures
(09110).
(viii) Drugs: Therapeutic drug injection, by report (09610); Other
drugs and/or medications, by report (09630).
(ix) Postsurgical: Treatment of complications (post-surgical)
unusual circumstances, by report (09930).
(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, 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 TRDP enrollee
select a more expensive service, procedure, or course of treatment than
is 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, OCHAMPUS, 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.
(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 and hearing procedures. All levels of appeals and
grievances established by the Contractor for internal
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review shall be exhausted prior to forwarding to OCHAMPUS for a final
review. Procedures comparable to those established under Sec. 199.13(h)
of this part shall apply.
(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]
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
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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 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
[[Page 342]]
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 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
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(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, 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.
[[Page 344]]
(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 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
[[Page 345]]
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]
Appendix A to Part 199--Acronyms
AFR--Air Force Regulation
AR--Army Regulation
ASD (HA)--Assistant Secretary of Defense (Health Affairs)
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)
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
[[Page 346]]
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
PFPWD--Program for Persons with Disabilities
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]
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 authorityof 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
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
[[Page 347]]
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.
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
[[Page 348]]
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 andtesting, 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.
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
[[Page 349]]
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 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
[[Page 350]]
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 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
[[Page 351]]
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 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
[[Page 352]]
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.
(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
[[Page 353]]
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, 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
[[Page 354]]
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 355]]
Appendix A to Part 203--Technical Assistance for Public Participation
Request Form
[GRAPHIC] [TIFF OMITTED] TR02FE98.006
[[Page 356]]
[GRAPHIC] [TIFF OMITTED] TR02FE98.007
PART 204_USER CHARGES--Table of Contents
Sec.
204.1 Reissuance and purpose.
204.2 Applicability.
204.3 Definitions.
204.4 Policy.
204.5 Responsibilities.
[[Page 357]]
204.6 Charges and fees.
204.7 Collections.
204.8 Legislative proposals.
204.9 Examples of benefits not to be charged under provisions of Sec.
204.4(c)(4) of this part.
204.10 Schedule of fees and rates.
Authority: 31 U.S.C. 483a.
Source: 51 FR 16024, Apr. 23, 1986, unless otherwise noted.
Redesignated at 56 FR 64482, Dec. 10, 1991.
Sec. 204.1 Reissuance and purpose.
This part reissues 32 CFR part 204 and implements the DoD program
under 31 U.S.C. 9701, and OMB Circular A-25 for establishing appropriate
charges for authorized services provided by DoD organizations.
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991]
Sec. 204.2 Applicability.
This part applies 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 (hereafter
referred to collectively as ``DoD Components''). None of the provisions
in this part should be construed as providing 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.
The user charge policy is applicable except when other statutes or
directives specifically direct other practices or procedures.
Sec. 204.3 Definitions.
Recipient. One who requests or receives the benefits of the
service(s) provided.
Sec. 204.4 Policy.
(a) General. It is DoD policy not to compete with available
commercial facilities (see 32 CFR part 169a) 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 sale
is made that conveys special benefits to recipients, above and beyond
those accruing to the public at large, a reasonable charge shall be made
to each identifiable recipient, except as otherwise authorized by the
Secretary of Defense. A special benefit will be considered to accrue,
and a charge shall be imposed when the service rendered:
(1) Enables the recipient to obtain more immediate or substantial
gain or values (which may or may not be measureable in monetary terms)
than those which accrue to the general public; or
(2) Is performed at the request of the recipient and is above and
beyond the services regularly received by or available without charge to
the general public.
(b) Costing. (1) A charge shall be imposed to recover the full cost
to the Federal Government of rendering a service or the fair market
value of such service, whichever is higher. Fair market value shall be
determined in accordance with commercial rates in the local geographical
area. In the absence of a known market value, charges shall be made
based on recovery of full costs to the Federal Government.
(2) When federally owned resources or property are leased or sold, a
fair market value shall be obtained. Fair market value shall be
determined by the application of sound business management principles
and, so far as practicable and feasible, in accordance with comparable
commercial practices. Charges based on fair market value need not be
limited to the recovery of costs; they may produce net revenues to the
Government.
(c) Exclusions and exceptions. (1) The provisions of this part do
not apply when other statutes or directives 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 in accordance with Sec. 204.9.
(ii) Sale or disposal of surplus property under approved programs
(See DoD Instruction 7310.1 \1\).
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(iii) Services furnished the general public relating to, or in
furtherance of, the U.S. Armed Forces recruiting program.
[[Page 358]]
(iv) Services furnished to representatives of the public information
media in the interest of public understanding of the U.S. Armed Forces.
(v) U.S. Armed Forces participation in public events. Charges for
such participation are governed by the provisions of 32 CFR part 238.
(vi) Records made available to the public, under the Freedom of
Information Act, pursuant to 32 CFR part 286. Charges for such record
searches and copies of records are governed by Sec. 286.61.
(vii) Services furnished to non-Federal audio-visual media Charges
for such services are governed by the provisions of DoD Instruction
5410.15.\2\
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\2\,3,4 See footnote 1 to Sec. 204.4(c)(1)(ii).
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(viii) Government-developed computer programs released to non-
Federal customers. Charges for software packages are governed by DoD
Instruction 7930.2.\3\
(ix) Pricing of performance by industrial fund activities which
shall be in accordance with DoD Directive 7410.4.\4\
(2) Charges may be waived or reduced when:
(i) The recipient of the benefits is engaged in nonprofit activity
designed for public safety, health, or welfare.
(ii) Payment of the full fee by a state, local government, or
nonprofit group would not be in the interest of the program.
(iii) Furnishing of the service without charge is an appropriate
courtesy to a foreign country or international organization, or
comparable fees are set on a reciprocal basis with a foreign country.
(iv) The incremental cost of collecting the fees would be an unduly
large part of the receipts from the activity.
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991; 63 FR 33248, June 18, 1998; 63 FR 36992, July 8, 1998]
Sec. 204.5 Responsibilities.
Head of DoD Components, or designees, shall:
(a) Identify each service or activity covered by this part.
(b) Determine the extent of the special benefit provided.
(c) Determine applicable cost and fair market value.
(d) Establish appropriate charges and collect from recipients of
special services.
(e) Grant cost waivers or reductions consistent with guidance in
this part.
(f) Recommend to the Comptroller of the Department of Defense
necessary additions and revisions to Sec. 204.10.
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991]
Sec. 204.6 Charges and fees.
(a) General. (1) All charges and fees shall be based on total cost
to the U.S. Government or fair market value, whichever is higher. Total
cost shall be based on actual cost or replacement cost when property is
to be replaced and expense data accumulated in accordance with DoD
7220.9-M.\5\ Estimates from the best available records may be used if
actual cost or expense data is not available.
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\5--8\ See footnote 1 to Sec. 204.4(c)(1)(ii).
---------------------------------------------------------------------------
(2) Cost accounting systems shall not be established solely for the
purpose of determining charges, but the results of existing cost
accounting systems shall be used. Total cost shall include all direct
and indirect costs (see Chapter 71, DoD 7220.9-M).
(3) Charges and fees established in advance must be projected to the
midpoint of the future period. Projected amounts shall be reviewed
annually or whenever significant changes in cost or value occur.
(4) Internal management controls (see DoD Directive 5010.38 \6\ must
be established to ensure that charges and fees are developed and
adjusted, using current, accurate, and complete data, to provide
reimbursement conforming to statutory requirements. Such controls also
must ensure compliance with cash management and debt collection policies
(see DoD Directive 7045.13\7\).
(b) Services--(1) Basic requirements. The maximum charge for a
special service shall be governed by its total cost or fair market
value, whichever is higher, and not by the value of the service, to the
recipient. The cost computation shall include the direct and indirect
costs to the Government of
[[Page 359]]
carrying out the activity. Typically, a service may involve the
following:
(i) Civilian salaries or wages, including the full cost of benefits,
such as leave, retirement, and medical and life insurance.
(ii) The full cost of military personnel services, including
retirement, other personnel support, leave, and permanent change of
station factors.
(iii) The cost of materials, supplies, travel expenses,
communications, utilities, equipment and property rental, and
maintenance of property and equipment.
(iv) Depreciation expense and interest of investment (currently at a
10 percent annual rate) (OMB Circular No. A-94) in DoD-owned, fixed
assets.
(v) Other operational, administrative, and accessorial (DoD
Instruction 7510.4 \8\ costs incurred by the activity while estabishing
standards and regulations and research in support of the service
performed, for example.
(2) Fees and rates. Fees and rates shall be based on actual costs.
The charges for services provided by data processing activities shall be
determined by using the costs accumulated pursuant to OMB Circular No.
A-121 and Federal Government accounting Pamphlet No. 4 requirements.
Fees and rates for recurring services shall be established in advance,
when feasible. Recurring services include, but are not limited to,
copying, certifying, and researching records, except when those services
are excluded or exempted from charges under Sec. 204.4(c) or Sec.
204.9.
(3) DoD-wide fees and rates. Section 204.10 provides a schedule of
fees and rates for certain services for use throughout the Department of
Defense. Recommendations for additions and revisions to the schedule
will be made to the Comptroller of the Department of Defense.
(c) Lease or sale of property. Charges for lease or sale of property
shall be based on a determination of fair market value.
(1) In cases involving the lease or rental of military equipment,
when there is no commercial counterpart, fair market value will be based
on the computation of an annual rent which will be the sum of the annual
depreciation plus interest on investment. The amount of interest on
investment is determined by applying the interest rate to the net book
value; that is, acquisition cost plus additions less depreciation. The
current interest rate in OMB Circular No. A-94 shall be used. Support,
if furnished, and applicable general administration expenses will be
extra. 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.
(2) In cases involving the sale of property when there is no known
fair market value, costs shall be based on the total of the standard
price of the item carried in inventory, or the reduced price when so
authorized for sale within the Department of Defense and the accessorial
and administrative costs computed under DoD Instruction 7510.4.
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991; 63 FR 33248, June 18, 1998; 63 FR 36992, July 8, 1998]
Sec. 204.7 Collections.
(a) Collections of charges and fees shall be made in advance of
rendering the service, except when preservation of life or property is
involved, performance is authorized by law without advance payment, or
advance payment is impractical because multiple requests for services
are received on a continuing basis from a reliable requester (i.e.,
consistently prompt payments for services received). When an advance
collection exception is approved, an accounts receivable will be
established to control collections. The policies in DoD 7220.9-M, DoD
Directive 5010.38, and DoD Directive 7045.13 shall be used in
accounting, controlling, and managing cash and debt collections.
(1) Collections of fees and charges normally will be deposited to
Miscellanous Receipts of the Treasury unless otherwise authorized by law
or regulation.
(2) Collections for utilities and services in connection with the
lease of property will be deposited to the appropriation or fund
responsible for financing the operations of the equipment or facility.
[[Page 360]]
Sec. 204.8 Legislative proposals.
In cases where collections of fees and charges for services or
property are limited or restricted by provisions of existing law, the
DoD Component(s) concerned will submit appropriate remedial legislative
proposals under applicable legislative procedures. (See DoD Instruction
5500.4.\9\
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\9\ See footnote 1 to Sec. 204.4(c)(1)(ii).
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991; 63 FR 33248, June 18, 1998; 63 FR 36992, July 8, 1998]
Sec. 204.9 Examples of benefits not to be charged under provisions of
Sec. 204.4(c)(4) of this part.
(a) Services requested by members of the U.S. Armed Forces in their
capacity as Service members.
(b) Services requested by members of the U.S. Armed Forces who are
in a casualty status, or requested by their next of kin or legal
representative, or requested by any source, when it relates to a
casualty.
(c) The address of record of a member or former member of the U.S.
Armed Forces when the address is available readily through a directory
(locator) service, and when the address is requested by a member of the
U.S. Armed Forces or by a relative or a legal representative of a member
of the U.S. 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 U.S. Armed Forces.
(d) Services requested by or on behalf of a member or former member
of the U.S. Armed Forces or, if deceased, his or her next of kin or
legal representative that pertain to the following:
(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
provided in paragraphs (1) and (2) of this section.
(3) Information relating to a decoration or award or required for
memorilization purposes.
(4) 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.
(e) Services that are furnished free in accordance with statutes or
executive orders.
(f) 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 and requests for such data
are (1) submitted by an accredited medical facility, physician, or
dentist; or (2) requested by the patient, his or her next of kin, or
legal representative.
(g) Services involving confirmation of employment, disciplinary or
other records, and salaries of active or separated civilian or military
personnel, when requested by prospective employers or recognized sources
of inquiry for credit or financial purposes.
(h) Services requested by and furnished to a Member of Congress for
official use.
(i) Services requested by state, territorial, county, or municipal
government, or an agency thereof, that is performing a function related
to or furthering of a DoD objective.
(j) Services requested by a court, when the service will serve as a
substitute for personal court appearance of a military or civilian
employee of the Department of Defense.
(k) Services requested by a nonprofit organization that is
performing a function related to or furthering an objective of the
Federal Government or that is in the interest of public health and
welfare, including education.
(l) Services requested by an individual or corporation that is
performing a function related to or furthering an objective of the
Federal Government, when the cost of such services would be chargeable
to a Federal Government contract or grant held by the individual or
corporation.
(m) Services requested by donors with respect to their gifts.
(n) Requests for occasional and incidental services (including
requests from residents of foreign countries), that are not requested
often, when it is
[[Page 361]]
determined administratively that a fee would be inappropriate for the
occasional and incidental services.
(o) Requests from Federal employees for the completion of claims for
reimbursement under the Federal Employees Health Benefit Act of 1959.
(p) Administrative services provided by reference or reading rooms
to inspect public records, excluding copies of records or documents
furnished.
(q) Requests for military locator service by financial organizations
that are located on DoD installations.
(r) Requests for military locator service by financial organizations
that are engaged in the direct deposit program and that are not located
on DoD installations. Requests for an address of record shall include
the following:
(1) A statement that the financial organization is listed as a
direct deposit recipient in the current U.S. Treasury Bureau of
Accounts, ``Financial Organizations Directory.''
(2) A statement that the individual, whose address is being
requested, has his or her pay forwarded as a direct deposit by a DoD
disbursing officer.
(3) The individual's financial organization's account number.
(s) Services rendered in response to requests for classification
review of DoD classified records, submitted under Executive Order 12065
and implemented by 32 CFR part 159. 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.
(t) Services of a humanitarian nature performed in such emergency
situations as life-saving transportation for non-U.S. 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 should not be
negotiated. Rather, it means the recipient or beneficiary will not be
assessed a ``user charge.''
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991]
Sec. 204.10 Schedule of fees and rates.
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 subsection D.3. of the basic Instruction, or Sec. 204.9.
Except as provided in special cases prescribed below, a minimum fee of
$3.50 will be levied for processing any chargeable case. Normally only
one copy of any record or document will be provided.
Requests Involving
(a) Training and education (copies of documents required for other
than official purposes):
Fee
(1) Transcripts:
First copy............................................... $3.50
Each additional copy (includes requests for transcripts .45
of graduation from military academies and schools)......
(2) Certificates:
First copy............................................... 3.50
Each additional copy (includes all requests for .45
certificates, verification of attendance, and course
completion from service schools and other facilities....
(b) Medical and dental records of patients and former patients (when
requested for purposes other than further medical treatment). Covers
requests for information from or copies of medical records, including
clinical records (inpatient records of military and non-military
patients), health records (military outpatient records), outpatient
records (non-Military outpatient records), dental records, and loan of
x-rays.
(1) Searching and processing (per hour)...........................$13.25
Minimum charge.....................................................8.30
(2) Each typewritten page...........................................3.50
(3) Office copy reproductions (per image)...........................0.10
(4) Copy or loan of each x-ray......................................8.50
(c) Military membership and record (excluding medical and dental
records).
(1) Address of record, each........................................$3.50
(2) Copies of releasable military personnel records (e.g.,
effectiveness reports for officers and enlisted personnel) reproduced
for the personal use
[[Page 362]]
of active, retired, and former members, next of kin of missing-in-action
or deceased members of the Armed Forces.
Minimum charge (up to six reproduced images).......................$3.50
Each additional image.................................................10
Statement of verification of Service or report of separation for
individusls with other than honorable discharges....................5.20
(d) Photography--(1) Still pictorial or documentary photographic
prints. Unlisted standard sizes of prints may be furnished, if
available, at prevailing contract or activity rates.
------------------------------------------------------------------------
Price per print (quantity)
-----------------------------------
10 to 21 to
1 to 9 20 50 50+
------------------------------------------------------------------------
Single weight (RC type) paper:
8x10...... $4.50 $3.25 $2.50 $1.75
11x14..... 9.00 7.00 5.00 4.00
16x20..... 19.00 15.00 12.00 9.50
20x24..... 30.00 25.00 20.00 15.00
Single weight color paper:
8x10...... 11.00 7.50 3.50 3.00
11x14..... 17.00 9.00 6.50 5.50
16x20..... 35.00 25.00 14.00 11.50
35mm color transparency slide made 5.00 3.50 3.00 3.00
from color negative................
35mm duplicate from 35mm slide...... 1.00 .60 .50 .45
Print mounted on 16x20 cardboard + unit price of
print..............................
Print mounted on 20x24 cardboard + unit price of
print..............................
Color transparencies (first); 16.00
each additional:
8x10...... 20.00 ....... ....... .......
4x5....... 4.50 ....... ....... .......
4x5 B&W 2.00 ....... ....... .......
negative.......................
70mm color negative............. 7.50 ....... ....... .......
------------------------------------------------------------------------
Note: Prices may vary by 20% of these average charges based on local
inhouse labor, equipment, and supply (raw stock) costs.
(2) Motion Picture:
------------------------------------------------------------------------
Price per
foot
contact
------------------------------------------------------------------------
Color:
16mm work print (positive work print from an original $0.20
negative).............................................
16mm reversal work print............................... .20
16mm color master (``A'' roll)......................... .60
16mm duplicate negative (from master positive)......... .60
16mm reversal duplicate negative....................... .85
16mm internegative (from reversal original)............ .70
16mm short rolls (under 100 ft) + basic price.......... .10
16mm tab-to-tab printing + basic price................. .20
Black and white:
16mm work print (negative/positive).................... .10
16mm master positive (fine grain)...................... .25
16mm duplicate negative................................ .25
16mm short rolls (under 200 ft) + basic price.......... .10
16mm tab-to-tab printing + basic price................. .10
------------------------------------------------------------------------
(3) Miscellaneous:
Magnetic tape--dub from 16mm film + raw stock.....................$65.00
Searching (per hour or fraction thereof)...........................18.00
Minimum charge per film order (including search)...................35.00
16mm film to videotape (broadcast quality tape format per hour) + raw
stock.............................................................275.00
Minimum charge for film to videotape transfer + raw stock.........140.00
Aerial photographic print processing prices will be determined by the
local DoD-operated lab due to limited availability.
35mm film processing for motion pictures is not done in-house by the
DoD. Charges for this type of processing will be at prevailing contract
rates on a case-by-case basis.
(e) Construction and engineering information. Copies of aerial
photograph maps, specifications, permits, charts, blueprints, and other
technical engineering documents.
(1) Searching, per hour or fraction thereof (including overhead costs)
$13.25
(2) First print.....................................................2.50
(3) Each additional print of same document..........................0.85
(f) Copies of medical articles and illustrations. Standards
contained in the basic Instruction will be utilized in computing costs.
(g) Claims, litigation. Copies of documents required for other than
official purposes. (Includes court-martial records furnishing
information from Report of Claims Investigations; e.g., automobile
collision investigations and safety reports.) Requests pertaining to
private litigation and to cases in which the United States is a party
and where court rules provide for reproduction of records without cost
to the Government (if not covered in 2. or 3., above).
[[Page 363]]
(1) Searching and processing (per hour)...........................$13.25
Minimum charge......................................................8.30
Note: Charges for professional search or research will be made in
accordance with 10.b., below.
(2) Office copy reproduction (minimum for six pages or less).......$3.50
(3) Each additional image...........................................0.10
(4) Certification and validation with seal, each....................5.20
(h) Publications and forms. A search and/or processing fees, as
described in 10.a., below, will be made for requests requiring extensive
time (one hour or more).
(1) Shelf stock. (Requesters may be furnished more than one copy of
publication or form if it does not deplete stock levels below projected
planned usage.)
(i) Minimum fee per request (six pages or less)....................$3.50
Plus:
(A) Form, per copy..................................................$.10
(B) Publications, per printed page....................................02
(C) Microfiche, per fiche.............................................10
(ii) (Examples: Cost of 20 forms, $5.50; cost of a publication with
100 pages, $5.50; cost of microfiche publication consisting of 10
fiches, $4.50)
(2) Office copy reproduction (when shelf stock is not available):
(i) Minimum fee per request (six pages or less)....................$3.50
(ii) Each additional page.............................................10
(iii) Minimum charge first fiche....................................8.70
(iv) Each additional fiche............................................20
(i) Engineering data (microfilm)--(1) Aperture cards.
(i) Silver duplicate negative, per card............................$0.75
When keypunched and verified, per card................................85
(ii) Diazo duplicate negative, per card...............................65
When keypunched and verified, per card................................75
(2) 35mm roll film, per frame.......................................0.50
(3) 16mm roll film, per frame.......................................0.45
(4) Paper prints (engineering drawings), each.......................1.50
(5) Paper reprints of microfilm indices, each.......................0.10
(j) General. Charges for any additional services not specifically
provided above, consistent with the provisions of the basic Instruction,
will be made by the respective DoD Components at the following rates:
(1) Clerical search and processing, per hour......................$13.25
Minimum charge......................................................8.30
(2) Professional search or researching (To be established at actual
hourly rate prior to search. A minimum charge will be established at \1/
2\-hourly rates.).......................................................
(3) Minimum charge for office copy reproduction (up to six images)
3.50
(4) Each additional image...........................................0.10
(5) Each typewritten page...........................................3.50
(6) Certification and validation with seal, each....................5.20
(7) Hand-drawn plots and sketches, each hour or fraction thereof...12.00
[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991]
PART 205_END USE CERTIFICATES (EUCs)--Table of Contents
Sec.
205.1 Purpose.
205.2 Applicability.
205.3 Definitions.
205.4 Background and policy.
205.5 Responsibilities.
205.6 Procedures.
Authority: 10 U.S.C. 131.
Source: 56 FR 64194, Dec. 9, 1991, unless otherwise noted.
Sec. 205.1 Purpose.
This part:
(a) Supersedes the Deputy Secretary of Defense Memorandum, ``End Use
Certificates,'' April 9, 1991.
(b) Establishes policies, assigns responsibilities, and prescribes
procedures for signing EUCs on foreign defense items.
Sec. 205.2 Applicability.
This part applies to the Office of the Secretary of Defense; the
Military Departments; the Chairman of the Joint Chiefs of Staff and the
Joint Staff; the Unified and Specified Commands; the Office of the
Inspector General, Department of Defense; the Defense Agencies; and the
DoD Field Activities (hereafter referred to collectively as ``DoD
Components'').
[[Page 364]]
Sec. 205.3 Definitions.
(a) End Use Certificate (EUC). For the purposes of this part, a
written agreement in connection with the transfer of military equipment
or technical data to the United States that restricts the use or
transfer of that item by the United States.
(b) Use for defense purposes. Includes direct use by or for the U.S.
Government in any part of the world and transfer by means of grant aid,
International Military Education and Training (IMET) programs, Foreign
Military Sales (FMS), and other security assistance and armaments
cooperation authorities.
Sec. 205.4 Background and policy.
This part is intended to authorize the execution of EUCs when such a
certificate is necessary to facilitate purchases of foreign products
when the purchase of such products is in the best interest of the United
States.
(a) The Military Departments and other DoD Components purchase
products produced by allies and friendly countries and participate in
cooperative development programs to promote interoperability,
standardization, and an expanded procurement base, and to obtain
products that best meet U.S. needs at the lowest cost.
(b) U.S. worldwide security responsibilities are extensive and
recognition of these special circumstances has resulted in long-time
acceptance in international agreements, by allies and friends, of the
need for flexibility in the authorized uses or transfer of purchased or
co-developed articles and data. In various circumstances, international
agreements have recognized that permissible use of an item or data for
U.S. ``defense purposes'' as defined in Sec. 205.3(b).
(c) Consistent with paragraphs (a) and (b) of this section, DoD
Components may sign EUCs, in accordance with the policy and procedures
outlined below. While most EUCs requested by foreign governments use
general language, their effects may be divided into three categories, as
described in the following paragraphs. Authority to approve their
execution is limited as follows:
(1) Category I. Secretaries of the Military Departments and
Directors of Defense Agencies may authorize EUCs:
(i) For acquisition of items classified for security purposes by a
foreign government.
(ii) For the acquisition of items covered by the nonproliferation
agreements to which the United States is a party, such as missile
technology, or
(iii) That permit the item to be ``used for defense purposes'' as
defined in Sec. 205.3(b), by the United States.
(2) Category II. EUCs that are not Category I or III are Category
II. Secretaries of the Military Departments and Directors of Defense
Agencies may authorize Category II EUCs only after a determination is
made through the coordination procedures set forth in Sec. 205.6(a)(1)
that, notwithstanding the use or transfer limitations, the purchase is
in the U.S. national interest. The least restrictive provisions possible
should be negotiated.
(3) Category III. Secretaries of Military Departments and Directors
of Defense Agencies may not authorize the signature of EUCs which limit
the right:
(i) For use by or for the U.S. Government in any part of the world,
or
(ii) To provide the item to allies engaged together with the United
States in armed conflict with a common enemy. Waivers to this
prohibition may be granted by the Under Secretary of Defense
(Acquisition) (USD(A)). Procedures for requesting such waivers are at
Sec. 205.6(a)(1).
Sec. 205.5 Responsibilities.
(a) The Under Secretary of Defense (Acquisition) shall:
(1) Monitor compliance with this part.
(2) Develop procedures to ensure timely review of Category II and
III items with the Under Secretary of Defense for Policy (USD(P)).
(3) Upon obtaining the concurrence of the USD(P), waive the
restrictions in Sec. 205.4(c)(3) when purchase of the item is in the
national interest.
(4) When requested, and in coordination with the USD(P), assist the
Military Departments and Defense Agencies in negotiating the elimination
or
[[Page 365]]
amelioration of an EUC's restrictive language.
(b) The Under Secretary of Defense for Policy shall:
(1) Consult with the USD(A) on waivers authorized by this part and,
if appropriate, coordinate with the Department of State.
(2) When requested, and in coordination with the USD(A), assist the
Military Departments and Defense Agencies in negotiating the elimination
or amelioration of the EUC's restrictive language.
(3) Develop procedures for coordination and review of EUC's
internally and with the Department of State.
(4) Establish, with the concurrence of the USD(A), specific
acceptable end use restrictions in addition to those set forth in
Category I, which shall be added immediately to Category I and a
corresponding administrative change made to Sec. 205.4(c)(1).
(c) The Secretaries of the Military Departments and the Directors of
the Defense Agencies shall:
(1) Authorize the execution of Category I and II EUCs in accordance
with the procedures outlined in Sec. 205.6. This responsibility may not
be delegated by the Directors of Defense Agencies; it may be delegated
by Secretaries of the Military Departments to civilian officers of their
respective departments appointed by the President with the advice and
consent of the Senate. Once EUC execution is authorized, the Director of
a Defense Agency, or Military Department civilian official who has been
delegated authorization authority may delegate the authority to sign
individual EUCs.
(2) Establish procedures to ensure compliance with this part. These
procedures should ensure compliance, for the life of the purchased item,
with the transfer or use restrictions agreed to in signing an EUC. They
should also ensure 21-calendar day notification to USD(A) before
authorizing the execution of a Category II EUC.
Sec. 205.6 Procedures.
(a) Procedures for the three categories of EUCs established in Sec.
205.4(c) are:
(1) Category I. Secretaries of the Military Departments and
Directors of Defense Agencies may authorize Category I EUCs.
(2) Category II. Not less than 21 calendar days before authorizing
the execution of a Category II EUC, Military Departments and Defense
Agencies shall provide notification to the USD(A). The notification will
contain a description of the item and the limitations to be imposed by
the exporting government. The USD(A) shall coordinate with the USD(P),
providing at least 14 days for review. If appropriate, the USD(P) shall
coordinate with the Department of State. The USD(A) shall notify the
submitting DoD Component of any further action required before final
authorization of the EUC; otherwise, concurrence may be assumed after
expiration of the 21-day period.
(3) Category III. To acquire an item requiring a Category III EUC,
the Secretary of a Military Department or Director of a Defense Agency
must request a waiver from the USD(A). Requests for waivers should
specify:
(i) Why it is in the interest of the U.S. Government to procure the
item.
(ii) The limitations to be imposed by the exporting government and a
justification for acceptance of those limitations by the U.S.
Government.
(iii) A statement that no satisfactory alternative to the item,
considering cost, schedule, or operational requirements, is available
from domestic or foreign sources without equivalent limitations.
The USD(A) shall coordinate the waiver with the USD(P), who, if
appropriate, shall then coordinate with the Department of State. USD(A)
shall notify the submitting DoD Component of the results.
(b) Copies of signed EUCs of all three categories shall be provided
promptly to USD(A).
(c) A record of any waivers or modifications of this policy shall be
maintained by the USD(A).
PART 206_NATIONAL SECURITY EDUCATION PROGRAM (NSEP) GRANTS TO INSTITUTIONS
OF HIGHER EDUCATION--Table of Contents
Sec.
206.1 Major characteristics of the NSEP institutional grants program.
[[Page 366]]
206.2 Eligibility.
206.3 Overall program emphasis.
206.4 Proposal development and review.
206.5 Final proposal process.
Authority: 20 U.S.C. 1141(a).
Source: 59 FR 26116, May 19, 1994, unless otherwise noted.
Sec. 206.1 Major characteristics of the NSEP institutional grants
program.
(a) The Institutional Grants Program provides support in the form of
grants to U.S. institutions of higher education. During the 1994-95 and
1995-96 academic years, a program of pilot grants is being initiated
with an annual competition for grants held during the spring of each
year. Grants to institutions will complement NSEP scholarship and
fellowship programs. NSEP encourages the development of programs and
curricula which:
(1) Improves the quality and infrastructure of international
education;
(2) Addresses issues of national capacity; and
(3) Defines innovative approaches to issues not addressed by NSEP
scholarship and fellowship programs.
(b) The NSEP Grants Program is designed to address a number of
important objectives critical to the United States:
(1) To equip Americans with an understanding of less commonly taught
languages and cultures and enable them to become integrally involved in
global issues.
(2) To build a critical base of future leaders in the marketplace
and in government service who have cultivated international
relationships and worked and studied along-side foreign experts.
(3) To develop a cadre of professionals with more than the
traditional knowledge of language and culture who can use this ability
to help the U.S. make sound decisions and deal effectively with global
issues; and
(4) To enhance institutional capacity and increase the number of
faculty who can educate U.S. citizens toward achieving these goals.
(c) Grants will be awarded for initial 1- or 2-year periods.
Potential follow-on commitments will be based on a rigorous evaluation
and assessment process. Between 15 and 25 awards are expected to be made
in the first year ranging from approximately $25,000 to $250,000. These
are only estimates and do not bind the NSEP to a specific number of
grants or to the amount of the grant.
(d) The following key characteristics will be emphasized in the NSEP
Institutional Grants Program:
(1) Programmatic in emphasis. The purpose of the grants is to
address weaknesses and gaps in programs and curricula. The grants should
be used to strengthen the national capacity in international education.
While ``operational'' support for already existing centers and projects
may be a component of a grant, NSEP emphasizes commitment of its limited
resources to projects that establish and improve educational programs
available to students and teachers.
(2) Demand and requirements oriented. Grants are designed to address
national needs. These needs must be clearly articulated and defended in
a grant proposal. It must be clear that the following questions are
addressed:
(i) Who will benefit from the program funded by the grant?
(ii) What need does the program address?
(iii) How will this program augment the capacity of the Federal
Government or of the field of education in areas consistent with the
objectives of the NSEP? How does it fit the national requirement?
(3) Cooperation and collaboration among institutions is mandated in
order to ensure that a wider cross-section of colleges and universities
benefit from a program funded under NSEP. NSEP is committed to providing
opportunities to the widest cross-section of the higher education
population as is feasible. Cooperation can be in the form of formal
consortia arrangements or less formal but equally effective agreements
among institutions. Both vertical (among different types of
institutions) and horizontal (among similar institutions across
functional areas) integration are encouraged. Outreach to institutions
that do not normally benefit from such programs is also strongly
favored.
(4) Complementary to other Federal programs such as Title VI of the
Higher Education Act. NSEP is designed to
[[Page 367]]
address gaps and shortfalls in Higher Education and to build and expand
national capacity. NSEP recognizes that base capacity currently exists
in some foreign languages and area studies. It also recognizes that
funding shortfalls and other factors have contributed to tremendous gaps
and weaknesses. Funding for expansion of the international education
infrastructure remains limited. Duplication of effort is not affordable.
NSEP encourages new initiatives as well as expansion of existing
programs to increase supply in cases where the demand cannot be met and
encourages efforts that increase demand.
(5) NSEP encourages proposals that address two categories of issues
relating to the mission of NSEP:
(i) Programs in specific foreign languages, countries or areas; and/
or
(ii) Programs addressing professional, disciplinary and/or
interdisciplinary opportunities involving international education.
(6) NSEP views student funding as portable and hopes that
universities will develop ways to move students to programs and to
provide credit with these programs. NSEP believes that programs need to
be developed that are available to a wider cross-section of students.
Thus, they need to be ``open'' to students from other institutions.
Programs might also be ``transportable'' from one institution to
another.
(7) NSEP emphasizes leveraging of funds and cost-sharing in order to
maximize the impact of NSEP funding. It encourages institutions to seek
other sources of funding to leverage against NSEP funding and to commit
institutional resources in support of the program as well. NSEP also
emphasizes burden sharing between the institution and the Program. NSEP
encourages institutions to demonstrate a commitment to international
education and to present a plan for how funding for the proposed program
will be achieved over a 3-5 year period so that NSEP can reduce its
financial commitment to programs. The funds requested from NSEP should
minimize costs allocated to unassigned institutional ``overhead.'' NSEP
institutional grants are assumed to be for training programs.
Consequently, university/college indirect costs associated with training
programs should be used as a general benchmark for determining
appropriate overhead rates.
(8) NSEP encourages creativity and is responsive to the needs of
higher education to expand the capacity to provide more opportunities
for quality international education. We do not suggest that the
guidelines presented in the grant solicitation will cover all problems
and issues. Quite to the contrary, we encourage careful consideration of
issues confronting international education in the U.S. and thoughtful
proposals that address these issues, consistent with the overall mission
of the NSEP.
Sec. 206.2 Eligibility.
Any accredited U.S. institution of higher education, as defined by
section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a)),
may apply for and receive a grant. This includes 2- and 4-year colleges
and universities, both public and private. Other organizations,
associations, and agencies may be included in proposals but may not be
direct recipients of a grant. Foreign institutions may also be included
in a proposal but may not be direct recipients of a grant. Only U.S.
citizens and U.S. institutions may receive funds through a grant awarded
by the NSEP.
Sec. 206.3 Overall program emphasis.
(a) The NSEP grants to institutions program focuses on two broad
program areas that reflect the challenges to building the infrastructure
for international education in U.S. higher education:
(1) Development and expansion to quality programs in overseas
locations.
(i) Programs that offer important opportunities for U.S. students,
both undergraduate and graduate, to study in critical areas under-
represented by U.S. students, and
(ii) Development of meaningful competencies in foreign languages and
cultures.
(2) Development and implementation of programs and curricula on U.S.
campuses that provide more opportunities for study of foreign languages
and cultures and the integration of these studies into overall programs
of study.
[[Page 368]]
(b) Addressing the need for improving study abroad infrastructure.
The NSEP encourages the study of foreign cultures and languages
typically neglected or under-represented in higher education. In the
foreign language field these are generally referred to as less commonly
taught languages. In area studies, these are generally defined as non-
Western European in focus. An integral part of any student's
international education is a quality study abroad experience that
includes a significant portion devoted to gaining functional competence
in an indigenous language and culture. Unfortunately, there are only
limited opportunities to study abroad in many foreign areas. In
addition, many programs lack a quality foreign language component as
well as significantly experiential components. Historically, more
attention has been paid to the development of programs in Western Europe
where the student demand has been greater. NSEP hopes to encourage,
through institutional grants, the development and/or expansion of
infrastructure for study abroad in critical areas of the world where
capacity does not currently exist. Programs are encouraged that:
(1) Expand program opportunities in critical countries where limited
opportunities currently exist.
(2) Establish program opportunities in critical countries where no
opportunities exist.
(3) Enhance meaningful opportunities for foreign language and
foreign culture acquisition in conjunction with study abroad.
(4) Create and expand study abroad opportunities for students from
diverse disciplines. In all cases, grants to develop study abroad
infrastructure must address issues of demand (how to increase demand for
study in the proposed countries or regions) and diversity (how to
attract a diverse student population to study in the proposed countries
or regions). Grants may support start-up of programs or the expansion of
a program's capacity to benefit more and/or different student or to
improve the quality of study abroad instruction. Proposals can address
issues concerning either or both issues of undergraduate and graduate
education.
(c) Addressing the infrastructure for international education in
U.S. higher education. While studying abroad is an integral part of
becoming more proficient in one's understanding of another culture and
in becoming more functionally competent in another language, the NSEP
also emphasizes the development and expansion of programs that address
serious shortfalls that provide a stronger domestic program base in
areas consistent with the NSEP mission. The NSEP encourages grant
proposals that address infrastructure issues. While not limited to these
areas, programs might address the following issues:
(1) Enhancing foreign language skill acquisition through innovative
curriculum development efforts. Such efforts may involve intensive
language study designed for different types of students. Less
traditional approaches should be considered as well as ways to provide
foreign language instruction for the student who may not otherwise have
an opportunity to pursue such instruction. Functional competency should
be stressed but defined as meaningful for the particular discipline or
field.
(2) Expanding opportunities for international education in diverse
disciplines and fields and in issues that are cross-area or cross-
national in character. Efforts are encouraged that offer opportunities
for meaningful international education for those in fields where
opportunities are not generally available. There are many fields and
disciplines that are rapidly becoming international in scope, yet the
educational process does not include a meaningful international
component. In many cases this is due to a rigid structure in the field
itself that cannot accommodate additional requirements, such as language
and culture study. There are also issues that involve cross-area or
cross-national education or are studied in comparative terms. Students
in these areas also need quality opportunities in international
education.
(3) Provide opportunities for programmatic studies throughout an
undergraduate or graduate career. Students frequently study a foreign
language or pursue study abroad opportunities as adjuncts to their
overall program of study. Innovations in curriculum are
[[Page 369]]
needed to more thoroughly integrate aspects of international education
into curriculum throughout a student's undergraduate or graduate career.
The NSEP encourages institutions to address these overall international
education curriculum issues in their proposals.
(4) Provide opportunities to increase demand for study of foreign
areas and languages. Efforts to develop educational programs that offer
innovative approaches to increasing demand to include a meaningful
international component are encouraged. Proposals are encouraged to
address issues of diversity: how to attract students who have
historically not pursued opportunities involving international
education. Diversity includes geographical, racial, ethnic, and gender
factors.
(5) Improve faculty credentials in international education. Efforts
to create more opportunities for teachers to become competent in foreign
cultures and languages are encouraged. While NSEP is a higher education
program, it is interested in the potential dynamics of collaborative
efforts that recognize the shared responsibility of all educational
levels for promoting international education.
(6) Uses of new technologies. During the last decade tremendous
advances have been made in the application of new educational
technologies. Such technologies have enhanced our capacity to improve
instruction, broaden access, and assess student learning. NSEP's
objective is not to support large technology oriented projects. However,
NSEP encourages efforts that integrate innovative uses of technology
emphasizing how proposed programs will have significance beyond a local
setting. Proposals that include proposed uses of technology will be
required to demonstrate detailed knowledge of the technology, how it is
to be developed and applied and how student learning will be impacted.
Sec. 206.4 Proposal development and review.
The purpose of this section is to explain the NSEP review process.
[Note: A number of important approaches to proposal development and
review have been adapted from guidelines developed by the Department of
Education's Office of Postsecondary Education for its ``Fund for the
Improvement of Postsecondary Education (FIPSE)''.] This information if
intended to aid institutions in the development of proposals and to
provide guidance concerning the criteria that may be used in reviewing
and evaluating proposals.
(a) The grants to institutions program will be administered by the
National Security Education Program Office (NSEPO). However, the NSEPO
will function as an administrative office much in the same manner as the
Institute of International Education and the Academy for Educational
Development function in administering NSEP scholarship and fellowship
programs, respectively. The NSEPO will not review or evaluate proposals.
The proposals will be reviewed and evaluated by national screening
panels.
(b) The NSEP will use a two-stage review process in order to
evaluate a broad range of proposal ideas. In the first stage, applicants
will submit a five-page summary (double-spaced) of their proposal. An
institution may submit more than one proposal, but each proposal should
be submitted and will be evaluated separately and independently.
(c) NSEP expects competition for grants to be intense. By
implementing a two-stage process, potential grantees are given an
opportunity to present their ideas without creating a paperwork burden
on both the proposal authors and the reviewers.
(d) The preliminary review process. The review of preliminary
proposals will be undertaken by panels of external reviewers, not
members of the NSEPO. Panels of not less than three will be assembled to
review preliminary proposals. Panel members will be drawn primarily from
faculty and administration in higher education but might also include
representatives from the research, business, and government communities.
Every effort will be made to ensure balance (geographical, ethnic,
gender, institutional type, subject matter) across the entire
competition.
(e) Panel members will reflect the nature of the grants program.
Each panel will include a recognized expert in a field of international
education.
[[Page 370]]
Other panelists may include experts in area studies, foreign language
education, and other fields and disciplines with an international focus.
(f) Preliminary proposals will be reviewed according to a set of
criteria developed in consultation with representatives from higher
education, and provided to the panels. The applicant shall, at a
minimum, deal with the following issues in the preliminary proposal:
(1) How the proposal addresses issues of national capacity in
international education.
(2) What area(s), language(s), and discipline(s) the proposal
addresses and the importance of these to U.S. national capacity.
(3) What the applicant is proposing to do.
(4) How the proposal deals with the key characteristics of the NSEP.
(5) Demonstration of thorough knowledge of the state of the art in
the particular area of the proposal and how this proposal develops or
builds capacity, not duplicates existing capacity.
(g) The applicant must also include a budget estimate. This budget
estimate, for the first year of the proposal, must include the
following:
(1) A summary of anticipated direct costs including professional
salaries, funds for students, travel, materials and supplies,
consultants, etc., and how or why these costs are needed.
(2) An estimate of institutional indirect costs. The budget estimate
must also indicate whether funding is also being requested for a second
year and, if so, an estimate of the amount to be requested.
(h) Panelists will review and rank proposals and forward their
recommendations to the NSEPO. NSEPO will review and analyze these
recommendations and inform all applicants of decisions.
Sec. 206.5 Final proposal process.
NSEPO will provide detailed comments on proposals to all applicants
who are invited to prepare a final proposal.
(a) Final proposals should be limited to no more than 25 double-
spaced pages. Proposals will be reviewed by national panels constructed
similarly to those designed to review preliminary proposals. In addition
to a field review process, panelists will be assembled in Washington
D.C. to discuss and review the independent and competing merits of
proposals.
(b) Proposals will be evaluated in two basic categories:
(1) Proposals that address study abroad infrastructure and
(2) Proposals that address domestic infrastructure. Should proposals
deal with both of these issues, they will be evaluated in a third
category. This grouping of proposals will ensure that all categories of
proposals receive funding consideration.
(c) In general, final proposals will be considered on the following
selection criteria:
(1) Importance of the problem. Each proposal will be evaluated
according to the merit of how it addresses issue(s) of national
capacity. The proposal must articulate the importance of the problem it
addresses, how the proposal addresses issues of national capacity in
international education, and how it is consistent with the objectives of
the NSEP.
(2) Importance of proposed foreign language(s), foreign area(s),
field(s) or discipline(s). The proposal will be evaluated according to
how well it articulates the need for programs in the proposed areas,
languages, fields, or disciplines.
(3) Identification of need and gaps/shortfalls. The proposal will be
evaluated according to its persuasiveness in identifying where the needs
exist and where serious shortfalls exist in the capacity to fill the
need. The proposal should clearly identify why these gaps exist and
provide a strong indication of familiarity with the state of the field
in the proposal area.
(4) Cost effectiveness. Proposals will be evaluated on the basis of
``educational value for the dollar.'' NSEP is interested in funding
proposals in areas where other funding is limited or in areas where NSEP
funding can significantly augment or complement other sources. NSEP is
not interested in replacing funds available from other sources or in
duplicating other efforts. Also, NSEP is interested in projects whose
dollar levels and long-range
[[Page 371]]
budget plans provide for realistic continuation by the grantee
institution and adaptation by other institutions. NSEP is interested in
proposed approaches to leveraging other funds against the proposed
project.
(5) Evaluation plans. Proposals will be evaluated on their approach
to measuring impact. What impact will the proposed program have on
national capacity? How will the proposed program deal with assessing
language and foreign cultural competency? In the case of study abroad
programs, how will the success and impact of study abroad experiences be
assessed. Proposals should not defer the consideration of these issues
to a latter stage of the effort. Evaluation and assessment should be an
integral part of the entire proposal effort.
(6) Prospects for wider impact. Proposals must address national
needs and will be evaluated according to how well they are likely to
address these needs. What component of the higher education community
does the proposal address? How diverse a student population will the
proposed program address? What applications to other institutions will
be made available, either directly or indirectly, because of the
proposed program?
(7) Capacity and commitment of the applicant. The proposal will be
evaluated according to the evidence provided on the commitment of the
institution, and other institutions, to the proposed project. What other
institutions are involved and what is their commitment. If there are
commitments from foreign institutions, what is the evidence of this
commitment? Are their plans for the institution to integrate the efforts
of the proposed program into the educational process? What plans are
there for eventual self-support? As with many other similar programs,
NSEP is particularly interested in the degree to which the institution
is willing to bear a reasonable share of the direct and indirect costs
of the proposed project.
(d) Applicants should also indicate if they currently receive or are
seeking support from other sources. Applicants should indicate why
support from NSEP is appropriate, if other sources are also being
sought.
PART 207_IMPLEMENTATION OF SECTION 740 OF THE WENDELL H. FORD AVIATION
INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY AS AMENDED BY SECTION
1051 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2003
--Table of Contents
Sec.
207.1 Background and purpose.
207.2 Applicability.
207.3 Restrictions.
207.4 Qualifications.
207.5 Sale procedures.
207.6 Reutilization and transfer procedures.
207.7 Reporting requirements.
207.8 Expiration.
Authority: Section 740 of Public Law 106-181, 114 STAT. 173 as
amended by Section 1051 of Public Law 107-314, 116 STAT. 2648.
Source: 68 FR 27905, May 22, 2003, unless otherwise noted.
Effective Date Note: At 68 FR 27905, May 22, 2003, part 207 was
added, effective May 22, 2003, until Sept. 30, 2006.
Sec. 207.1 Background and purpose.
Section 740 of the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century, as amended, allows the Department of Defense
(DoD), during the period 4 April 2000 through 30 September 2006, to sell
aircraft and aircraft parts to a person or entity that provides oil
spill response services (including the application of oil dispersants by
air). This part implements that section.
Sec. 207.2 Applicability.
The sections in this part apply to the sale of aircraft and aircraft
parts determined to be DoD excess under the definition of the Federal
Property Management Regulations (FPMR) or the Federal Management
Regulation (FMR), and listed in Attachment 1 of Chapter 4 of DoD
4160.21-M (August 1997) \1\ as Category A aircraft authorized for
commercial use, to contractors providing oil spill response services.
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\1\ Copies may be obtained via Internet at http://www.dla.mil/dlaps/
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[[Page 372]]
Sec. 207.3 Restrictions.
(a) Aircraft and aircraft parts sold under the Act shall be used
primarily for oil spill spotting, observation, and dispersant delivery,
and may not have a secondary purpose that interferes with oil spill
response efforts under an oil spill response plan. Use for a secondary
purpose requires the prior written approval of the Secretary of Defense
and the Secretary of Transportation, and a certificate from the Federal
Aviation Administration, to be obtained in advance, for the proposed
secondary use.
(b) Aircraft may not be flown outside of or removed from the U.S.
except for the purpose of fulfilling an international agreement to
assist in oil spill dispersing efforts, for immediate response efforts
for an oil spill outside United States waters that has the potential to
threaten United States waters, or for purposes that are jointly approved
by the Secretary of Defense and the Secretary of Transportation.
(c) The DoD sale of aircraft and aircraft parts sold under the Act
shall not extend past the time limits of the Act.
Sec. 207.4 Qualifications.
The Secretary of Transportation must certify in writing to the
Secretary of Defense prior to sale that the person or entity is capable
of meeting the terms and conditions of a contract to perform oil spill
response services by air, and that the overall system to be employed by
the person or entity for the delivery and application of oil spill
dispersants has been sufficiently tested to ensure that the person or
entity is capable of participating in an oil spill response plan that
has been approved by the Secretary of the Department in which the Coast
Guard is operating.
(a) Prior to sales offerings of aircraft or aircraft parts, the U.S.
Department of Transportation (DoT) must provide to the Defense
Reutilization and Marketing Service (DRMS), in writing, a list or
persons or entities eligible to bid under this Act, including expiration
date of each DOT contract, and locations covered by the DOT contract.
(b) This requirement may not be delegated to the U.S. Coast Guard
(USCG).
Sec. 207.5 Sale procedures.
Sale of aircraft and aircraft parts must be in accordance with the
provisions of Chapter 4 of DoD 4160.21-M (August 1997), paragraph B 2,
and with other pertinent parts of this manual, with the following
changes and additions:
(a) Sales shall be limited to the aircraft types listed in
Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997), and parts
thereto.
(b) Sales shall be made at fair market value (FMV), as determined by
the Secretary of Defense and, to the extent practicable, on a
competitive basis.
(1) DRMS must conduct sales utilizing FMVs that are either provided
by the Military Services on the Disposal Turn-In Documents (DTIDs) or
based on DRMS's professional expertise and knowledge of the market.
Advice regarding FMV shall be provided to DRMS by DOT, as appropriate.
(2) If the high bid for a sale item does not equal or exceed the
FMV, DRMS is vested with the discretion to reject all bids and reoffer
the item:
(i) As excess property on another oil spill sale, if there is
indication that reoffer may be successful; or,
(ii) As surplus property if, after reporting the aircraft to the
General Services Administration (GSA) for utilization and donation
screening, there are no Federal or State Agency requirements as
determined by GSA.
(3) Disposition of proceeds from sale of aircraft under the Act, net
of DRMS's expenses, will be to the general fund of the United States
Treasury as miscellaneous receipts.
(c) Purchasers shall certify that aircraft and aircraft parts will
be used only in accordance with conditions stated in Sec. 207.3.
(1) Sales solicitations will require bidders to submit end-use
certificates with their bids, stating the intended use and proposed
areas of operation.
(2) The completed end-use certificates shall be used in the bid
evaluation process.
(d) Sales contracts shall include terms and conditions for verifying
and enforcing the use of the aircraft and aircraft parts in accordance
with provisions of the guidance.
[[Page 373]]
(1) The DRMS Sales Contracting Officer (SCO) is responsible for
verifying and enforcing the use of aircraft and aircraft parts in
accordance with the terms and conditions of the sales contract.
(i) Sales contracts include provisions for on-site visits to the
purchaser's place(s) of business and/or worksite(s).
(ii) Sales contracts require the purchaser to make available to the
SCO, upon his or her request, all records concerning the use of aircraft
and aircraft parts.
(2) DOT shall nominate in writing, and the SCO shall appoint,
qualified Government employees (not contract employees) to serve as
Contracting Officer's Representatives (CORs) for the purpose of
conducting on-site verification and enforcement of the use of aircraft
and aircraft parts for those purposes permitted by the sales contract.
(i) COR appointments must be in writing and must state the COR's
duties, the limitations of the appointment, and the reporting
requirements.
(ii) DOT bears all COR costs.
(iii) The SCO may reject any COR nominee for cause, or terminate any
COR appointment for cause.
(3) Sales contracts require purchasers to comply with the Federal
Aviation Agency (FAA) requirements in Chapter 4 of DoD 4160.21-M (August
1997), paragraphs B 2 b (4) (d) 2 through B 2 b (4) (d) 5.
(4) Sales contracts require purchasers to comply with the Flight
Safety Critical Aircraft Parts regime in Chapter 4 of DoD 4160.21-M
(August 1997), paragraph B 26 c and d, and in Attachment 3 to Chapter 4
of DoD 4160.21-M (August 1997).
(5) Sales contracts require purchasers to obtain the prior written
consent of the SCO for resale of aircraft or aircraft parts purchased
from DRMS under this Act. Resales are only permitted to other entities
that, at time of resale, meet the qualifications required of initial
purchasers. The SCO must seek, and DOT must provide, written assurance
as to the acceptability of a prospective repurchaser before approving
resale. Resales will normally be approved for oil spill response
contractors that have completed their contracts, or that have had their
contracts terminated, or that can provide other valid reasons for
seeking resale that are acceptable to the SCO.
(i) If it is determined by the SCO that there is no interest in the
aircraft or aircraft parts being offered for resale among entities
deemed qualified repurchasers by DOT, the SCO may permit resale to
entities outside the oil spill response industry.
(ii) When an aircraft or aircraft parts are determined to be
uneconomically repairable and suitable only for cannibalization and/or
scrapping, the purchaser shall advise the SCO in writing and provide
evidence in the form of a technical inspection document from a qualified
FAA airframe and powerplant mechanic, or equivalent.
(iii) The policy outlined in paragraph (d)(5) of this section also
applies to resales by repurchasers, and to all other manner of proposed
title transfer (including, but not limited to, exchanges and barters).
(iv) Sales of aircraft and aircraft parts under the Act are intended
for principals only. Sales offerings will caution prospective purchasers
not to buy with the expectation of acting as brokers, dealers, agents,
or middlemen for other interested parties.
(6) The failure of a purchaser to comply with the sales contract
terms and conditions may be cause for suspension and/or debarment, in
addition to other administrative, contractual, civil, and criminal
(including, but not limited to, 18 U.S.C. 1001) remedies which may be
available to the Department of Defense.
(7) Aircraft parts will be made available as follows:
(i) DRMS may, based on availability and demand, offer for sale under
the Act whole unflyable aircraft, aircraft carcasses for
cannibalization, or aircraft parts, utilizing substantially the same
provisions outlined in paragraphs (a) through (d)(6) of this section for
flyable aircraft.
(ii) Sales contracts for unflyable aircraft shall contain a
restriction in perpetuity against use for flight. DRMS will not issue a
bill of sale for these aircraft. When unflyable aircraft or aircraft
residue is to be sold for parts use, the data plates must be removed
[[Page 374]]
and destroyed by the owning military service prior to releasing the
aircraft to the contractor.
(iii) If DOT requests that DRMS set aside parts for sale under Act,
DOT must provide listings of parts required, by National Stock Number
and Condition Code.
(iv) Only qualified oil spill response operators who fly the end-
item aircraft will be allowed to purchase unflyable aircraft, aircraft
carcasses, or aircraft parts applicable to that end-item.
(v) FMVs are not required for aircraft parts. DRMS will utilize
historic prices received for similar parts in making sale
determinations.
Sec. 207.6 Reutilization and transfer procedures.
Prior to any sales effort, the Secretary of Defense shall, to the
maximum extent practicable, consult with the Administrator of GSA, and
with the heads of other Federal departments and agencies as appropriate,
regarding reutilization and transfer requirements for aircraft and
aircraft parts under this Act (see Chapter 4 of DoD 4160.21-M (August
1997), paragraphs B 2 b (1) through B 2 b (3)).
(a) DOT shall notify Army, Navy, and/or Air Force, in writing, of
their aircraft requirements as they arise, by aircraft type listed in
Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997).
(b) When aircraft become excess, the owning Military Service will
screen for reutilization requirements within the Department of Defense,
and those requirements shall take precedence over DOT requirements under
this Act.
(c) Federal agency transfer: (1) The Military Service shall report
aircraft that survive reutilization screening to GSA Region 9 on a
Standard Form 120. The Military Service must advise GSA Region 9 if DOT
has lodged a written requirement for the aircraft for use in oil spill
response. GSA will screen for Federal agency transfer requirements in
accordance with the FMR.
(2) If a Federal agency requirement exists, GSA shall advise the
owning Military Service, in writing, of its intent to issue the aircraft
to satisfy the Federal agency requirement. The Military Service will
notify DOT of the competing Federal requirement for the aircraft. If DOT
disputes the priority given to the Federal requirement, it shall end a
written notice of dispute to the owning Military Service and to the
Deputy Under Secretary of Defense (Logistics and Materiel Readiness
(DUSD (L&MR)) within thirty (30) days of receipt of notice from the
Military Service. DUSD (L&MR) shall then resolve the dispute, in
writing. The aircraft cannot be issued until notification is given and
any dispute is resolved.
(d) The Military Services shall: (1) Respond to the DOT, in writing,
when excess aircraft that can meet DOT's stated requirements have
survived reutilization and transfer screening.
(2) Report excess aircraft that survive reutilization and transfer
screening and are available for sale to Headquarters, Defense
Reutilization and Marketing Service, ATTN: DRMS-LMI, Federal Center, 74
Washington Avenue North, Battle Creek, Michigan 49017-3092. The Military
Services must use a DD Form 1348-1A, DTID, for this purpose.
(3) Transfer excess aircraft that survive reutilization and transfer
screening to the Aerospace Maintenance and Regeneration Center (AMARC),
Davis-Monthan AFB, AZ, and place the aircraft in an ``excess'' storage
category while aircraft are undergoing oil spill response sale. Aircraft
shall not be made available or offered to oil spill response operators
from the Military Service's airfield. The Military Service shall be
responsible for the AMARC aircraft induction charges. The aircraft
purchaser will be liable for all AMARC withdrawal charges, to include
any aircraft preparation required from AMARC. Sale of parts required for
aircraft preparation is limited to those not required for the
operational mission forces, and only if authorized by specific authority
of the respective Military Service's weapon system program manager.
Sec. 207.7 Reporting requirements.
Not later than 31 March 2003, the Secretary of Defense must submit
to the Committees on Armed Services and
[[Page 375]]
Commerce, Science, and Transportation of the Senate and the Committees
on National Security and Transportation and Infrastructure of the House
of Representatives a report setting forth the following:
(a) The number and type of aircraft sold under this authority, and
the terms and conditions under which the aircraft were sold.
(b) The persons or entities to which the aircraft were sold.
(c) An accounting of the current use of the aircraft sold.
(d) DOT must submit to Headquarters, Defense Reutilization and
Marketing Service, ATTN: DRMS-LMI, Federal Center, 74 Washington Avenue
North, Battle Creek, Michigan, 49017-3092, not later than 1 February
2006, a report setting forth an accounting of the current disposition of
all aircraft sold under the authority of the Act.
(e) DRMS must compile the report, based on sales contract files and
(for the third report element) input from the DOT. The report must be
provided to Headquarters Defense Logistics Agency not later than 1 March
2006. Headquarters Defense Logistics Agency shall forward the report to
Deputy Under Secretary of Defense (Logistics & Materiel Readiness) not
later than 15 March 2006.
Sec. 207.8 Expiration.
This part expires on 30 September 2006.
PARTS 208-209 [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.
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\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 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
[[Page 376]]
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.
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(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_DoD FOREIGN TAX RELIEF PROGRAM--Table of Contents
Sec.
211.1 Reissuance and purpose.
211.2 Applicability and scope.
211.3 Definitions.
211.4 Policy.
211.5 Responsibilities.
211.6 Country tax law studies.
211.7 Information requirements.
Authority: 5 U.S.C. 301 and 10 U.S.C. 133.
Source: 44 FR 50598, Aug. 29, 1979, unless otherwise noted.
Sec. 211.1 Reissuance and purpose.
This part (a) is reissued without substantive change, to correct
superseded references; and (b) defines the tax relief policy of the
Department of Defense, designates the organizational element which has
continuing responsibility for the overall direction of the DoD Foreign
Tax Relief Program, delineates the responsibilities of other
organizational elements to implement and monitor the program, and
requires the preparation and maintenance of specified foreign country
tax law studies in order to facilitate the institution of statistical
reporting procedures.
Sec. 211.2 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 Command, and the Defense Agencies
(hereafter referred to as ``DoD Components'').
(b) The policy set forth in this part applies to:
(1) Military functions expenditures by the Department of Defense,
and
(2) Expenditures by nonappropriated fund activities of the
Department of Defense that are subject to taxes imposed by:
(i) Foreign countries in which U.S. military forces are regularly
stationed (other than attache and other military personnel assigned to a
U.S. diplomatic mission); and
(ii) Any other foreign country in which all or most U.S. defense
activities, in a collective sense, are conducted in the interest of the
common defense or otherwise significantly improve the military security
of that country.
(c) The policy set forth in this part also applies to Military
Assistance Program (MAP) expenditures in all countries.
Sec. 211.3 Definitions.
(a) Regardless of how a charge is denominated in foreign law or
regulation, the words ``tax'' and ``taxes'' include all direct or
indirect foreign customs duties, import and export taxes, excises, fees
and other charges imposed at the national, local or intermediate level
of a foreign country other than charges for services rendered or for
other consideration received.
(b) For example, taxes include but are not limited to purchase tax,
sales tax, use tax, gross receipts tax, stamp tax, transfer tax,
transaction tax, turnover tax, value added tax, service tax, trade tax,
business tax, license tax, transportation tax, circulation tax,
[[Page 377]]
luxury tax, possession tax, production tax, registration tax,
consumption tax, gasoline tax, real property tax, personal property tax,
and gross income tax.
(c) The word ``relief'' includes any method, technique, or procedure
by which the ultimate economic burden of a tax on DoD funds may be
avoided or otherwise remedied, such as exemption, refund, or drawback.
Sec. 211.4 Policy.
It is the policy of the Department of Defense to secure, to the
maximum extent practicable, effective relief from all foreign taxes
wherever the ultimate economic burden of those taxes would, in the
absence of such relief, be borne by funds appropriated or allocated to
the Department of Defense (including MAP appropriations) or under the
control of its nonappropriated fund activities. In those cases in which
the total economic burden of a tax not readily identifiable in the
normal course of business is so small that it may be considered a de
minimis matter, or in which the administrative burden of securing
effective relief from a tax in a particular instance would be out of
proportion to the amount of the relief obtained, tax relief shall be
considered impracticable.
Sec. 211.5 Responsibilities.
(a) The General Counsel of the Department of Defense shall:
(1) Provide overall supervision and direction of the DoD Foreign Tax
Relief Program.
(2) Resolve any significant issues relating to the program.
(3) Designate those countries that come within Sec. 211.2(b)(2)(ii)
of this part.
(4) Direct the preparation of country tax law studies for countries
not within the scope of Sec. 211.2(b) of this part.
(5) Designate the DoD member of the Inter-Agency Committee on
Foreign Tax Relief, established by the Department of State.
(b) The Assistant Secretary of Defense (International Security
Affairs) shall monitor the negotiation and conclusion of international
agreements subject to the Secretary's approval authority under DoD
Instruction 2050.1 Delegated Approval Authority to Negotiate and
Conclude International Agreements, July 6, 1977,\1\ to ensure that such
agreements are compatible with the policy set forth in this part and any
implementing guidance concerning that policy issued by the General
Counsel of the Department of Defense.
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\1\ See footnote 1 to Sec. 209.5(d).
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(c) The Chairman, Defense Acquisition Regulatory Council, shall
coordinate with the General Counsel of the Department of Defense before
the issuance, amendment, or revision of any portion of the Defense
Acquisition Regulatory System (or regulation, directive, circular, or
other publication within the scope of 32 CFR part 160 that pertains to
the implementation of the DoD Foreign Tax Relief Program.
(d) The Assistant Secretary of Defense (Comptroller) shall perform
such fiscal functions as may be required to implement the DoD Foreign
Tax Relief Program, including advice and assistance in the institution
of procedures for collecting data, compiling reports, and performing
internal audits.
(e) The Secretary of each of the Military Departments and the
Director of each of the Defense Agencies shall issue instructions or
regulations that charge a single office within the respective Military
Department of Defense Agency (referred to as the ``Cognizant Office'')
with continuing responsibility for supervising and monitoring the
implementation of the DoD Foreign Tax Relief Program within such
Department or Agency. Such instructions or regulations shall delegate to
the Cognizant Office authority commensurate with its responsibility.
(f) Commanders of Unified Commands, as appropriate, shall promulgate
management procedures to guide and coordinate the administration of the
DoD Foreign Tax Relief Program throughout their respective area
commands.
(g) For each foreign country that comes within the scope of
subsection B.2. of this directive, a single Military Commander shall be
designated by the Commander of the Unified Command. The designated
Military Commander shall be the same designated under the procedures in
32 CFR 151.3(c). The designated Military Commander shall:
[[Page 378]]
(1) Make and maintain a current country tax law study in accordance
with Sec. 211.6 of this part.
(2) Be the single point of contact for U.S. contracting officers and
activities for the investigation and resolution of specific matters that
relate to the foreign tax relief program within the country for which
the Military Commander is designated and for the forwarding of major
problems affecting that program through proper channels to the General
Counsel of the Department of Defense.
(3) Provide liaison with the responsible U.S. diplomatic mission on
current tax relief problems and, where appropriate, with local foreign
tax authorities.
Sec. 211.6 Country tax law studies.
(a) The taxes covered by each country tax law study shall be limited
to those which in the absence of tax relief, would affect, or would
appear to affect, U.S. Government expenditures, even as a de minimis
matter. (All such taxes are hereafter referred to as ``applicable
taxes.'') The formats of the studies for all countries shall be similar
within each Unified Command insofar as practicable, and designed to
facilitate statistical reporting procedures. The studies shall be
prepared and maintained with a view to the practical utilization of the
studies by U.S. contracting officers and activities for purposes of
making reliable estimates of the total amount of taxes applicable to any
particular contract and the amount thereof for which tax relief is
available.
(b) Each country tax law study shall consist of the following:
(1) A general survey of all applicable taxes, together with
translations, as appropriate, of the salient features of the law or
regulations imposing those taxes.
(2) For each applicable tax, a summary statement containing: Its
name; its rate (or rates); the taxing authority (national, provincial,
or municipal); the legal incidence of the tax (the nature of the
taxpayer or other entity liable for the payment of the tax to the taxing
authority under the law of the country); its description (including the
base or bases on which the tax is imposed); the applicability of the tax
to various types of contracts (supplies, services, or construction) in
the event the tax is applicable to only one or several of such types of
contracts; the applicability of the tax to the prime contract, as well
as to any subcontracts or purchase orders issued by the prime contractor
or subcontractor; the applicability of the tax to contractor and
subcontractor personnel; the variation, if any, of the applicability of
the tax depending upon the domicile of the contractor or contractor
personnel, such as United States, host country, or third country; any
applicable exemptions or deductions of significance; and the method of
collection of the tax.
(3) The basis upon which it is concluded that each applicable tax,
in absence of tax relief, would affect, or would appear to affect, U.S.
Government expenditures; and any evidence of the degree to which its
ultimate economic burden would, in absence of tax relief, be borne by
the U.S. Government rather than be absorbed by others.
(4) The substantive tax relief, if any, from each applicable tax
that is available to the U.S. Government either by international
agreements in force or under the tax law or other regulation of the
country; the procedures which may be used to obtain any such relief; the
requirement, if any, for the issuance of a tax exemption certificate by
the military procuring agency or by an agency of the country to secure
an exemption; the entitlement, if any, of the taxpayer to interest on
any tax refund made by the host country; the credits, if any, that may
be available against any other taxes otherwise payable by the taxpayer
resulting from the payment of the tax under analysis; the approximate
amount of the tax that should be involved in a particular case, if such
can be estimated, taking into account the costs of filing a claim for
refund by a contractor to warrant filing such a claim; and a brief
narration of any significant problems which have occurred in attempting
to obtain relief in particular cases.
(5) A conclusion with regard to the adequacy of current tax relief
measures; and such recommendations as may be appropriate for more
efficient
[[Page 379]]
implementation of the policy set forth in this part.
(c) Appended to each country tax law study shall be a verbatim
quotation of all provisions relating to tax relief afforded by the
country that are contained in international agreements in force.
(d) One copy of each country tax law study shall be forwarded to the
General Counsel of the Department of Defense and to each of the
Cognizant Offices of the Military Departments and Defense Agencies
within 30 days after its approval by the designated Military Commander.
The information contained in the studies shall be disseminated by the
Cognizant Offices to U.S. contracting officers and activities when
required.
(e) Country tax law studies shall be subject to continuing review.
When there is a significant change in country tax laws, regulations, tax
relief procedures, or in pertinent international agreements in force,
the corresponding revision shall be promptly forwarded by the designated
Military Commander to each of the offices referred to in Sec. 211.6(d).
Sec. 211.7 Information requirements.
(a) The reporting requirement contained in Sec. 211.6 relating to
the submission of country tax law studies and revisions thereof is
assigned Report Control Symbol DDSD (AR) 1036.
(b) Each January a summary of significant activities during the
preceding year in implementation of the DoD Foreign Tax Relief Program
shall be furnished by the Heads of Cognizant Offices to the General
Counsel of the Department of Defense. The summary, in narrative form,
shall include actions taken by the Cognizant Office to discharge its
responsibility for supervising and monitoring the implementation of the
foreign tax relief program within its Military Department or Defense
Agency, and for disseminating the information contained in country tax
law studies to U.S. contracting officers and activities. The reporting
requirement contained in this subsection is assigned Report Control
Symbol DDGC (A) 1198.
(c) Each January a summary of significant activities during the
preceding year of the administration of the foreign tax relief program
shall be furnished by Commanders of the Unified Commands to the General
Counsel of the Department of Defense. The summary, in narrative form,
shall include actions taken by the Unified Command to discharge its
responsibility to supervise and coordinate the preparation and
maintenance of country tax law studies. The reporting requirement
contained in this subsection is assigned Report Control Symbol DDGC (A)
1199.
PART 212_PRIVATE ORGANIZATIONS ON DoD INSTALLATIONS--Table of Contents
Sec.
212.1 Reissuance and purpose.
212.2 Applicability.
212.3 Definitions.
212.4 Policy.
212.5 Responsibilities.
212.6 Procedures.
Authority: 5 U.S.C. 301.
Source: 63 FR 32616, June 15, 1998, unless otherwise noted.
Sec. 212.1 Reissuance and purpose.
This part:
(a) Revises 32 CFR part 212.
(b) Implements policy in DoD Directive 5124.5.\1\
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\1\ Copies may be obtained, if needed, from the National Technical
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
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(c) Updates responsibilities and procedures to define and
reestablish parameters for private organizations located on DoD
installations for their authorization and support.
Sec. 212.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Defense Agencies, and DoD Field Activities (hereafter
referred to collectively as the ``DoD Components'').
(b) Private organizations authorized to operate on DoD
installations.
Sec. 212.3 Definitions.
(a) DoD Installation. A location, facility, or activity owned,
leased, assigned
[[Page 380]]
to, controlled, or occupied by a DoD Component.
(b) Private Organizations. Self-sustaining and non-Federal entities,
incorporated or unincorporated, which are operated on DoD installations
with the written consent of the installation commander or higher
authority, by individuals acting exclusively outside the scope of any
official capacity as officers, employees, or agents of the Federal
Government.
Sec. 212.4 Policy.
It is DoD policy under DoD Directive 5124.5 that procedures be
established for the operation of private organizations on DoD
installations to prevent the official sanction, endorsement, or support
by DoD Components except as in 32 CFR part 84. Private organizations are
not entitled to sovereign immunity and privileges accorded to Federal
entities and instrumentalities. Private organizations are not Federal
entities and are not to be treated as such, in order to avoid conflicts
of interest and unauthorized expenditures of appropriated, commissary
surcharge, or nonappropriated funds.
Sec. 212.5 Responsibilities.
(a) The Assistant Secretary of Defense for Force Management Policy,
under the Under Secretary of Defense for Personnel and Readiness, shall
be responsible for all policy matters and OSD oversight for the
monitoring of private organizations on DoD installations.
(b) The Heads of the DoD Components shall implement this part, shall
be kept aware of all private organizations located on installations
under their jurisdictions, and ensure that periodic reviews of private
organizations are conducted to:
(1) Ensure for each such private organization that the membership
provisions and purposes on the basis of which the organization was
permitted on the installation continue to apply, thereby justifying
continuance on the installation. Substantial changes to those conditions
shall necessitate further review, documentation, and approval for
continued permission to remain on the installation.
(2) Furnish reports to the Assistant Secretary of Defense for Force
Management Policy on private organizations covered by this part as
required.
Sec. 212.6 Procedures.
(a) To prevent the appearance of an official sanction or support by
the Department of Defense, a private organization covered by this part
shall not utilize the following in its title or letterhead:
(1) The name or seal of the Department of Defense or the acronym
``DoD.''
(2) The name, abbreviation, or seal of any DoD Component or
instrumentality.
(3) The seal, insignia, or other identifying device of the local
installation.
(4) Any other name, abbreviation, seal, logo, insignia, or the like,
used by any DOD Component to identify any of its programs, locations, or
activities.
(b) Activities of private organizations covered by this part shall
not in any way prejudice or discredit the DoD Components or the other
Agencies of the Federal Government.
(c) The nature, function, and objectives of a private organization
covered by this part shall be delineated in a written constitution, by-
laws, charter, articles of agreement, or other authorization documents
acceptable to the head of the DoD installation. That documentation shall
also include:
(1) Description of membership eligibility in the private
organization.
(2) Designation of management responsibilities, to include the
accountability for assets, satisfaction of liabilities, disposition of
any residual assets on dissolution, and other matters that show
responsible financial management.
(3) Documentation indicating an understanding by all members as to
whether they are personally liable if the assets are insufficient to
discharge all liabilities.
(d) A private organization covered by this part that offers programs
or services similar to either appropriated or nonappropriated fund
activities on a DoD installation shall not compete with, but may, when
specifically authorized in the approval document, supplement those
activities.
[[Page 381]]
(e) Private organizations 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 a private organization from a nonappropriated fund
instrumentality in the form of contributions, repairs, services,
dividends, or other donations of money or other assets. Fundraising and
membership drives are governed by 32 CFR part 84.
(f) The DoD Components may provide logistical support to private
organizations with appropriated Federal Government resources in
accordance with 32 CFR part 84. In conformance with DoD Directive
1015.1,\2\ nonappropriated fund instrumentalities funds or assets shall
not be directly or indirectly transferred to private organizations.
---------------------------------------------------------------------------
\2\ See footnote to Sec. 212.1(b).
---------------------------------------------------------------------------
(g) Personal and professional participation in private organizations
by DoD employees is governed by 32 CFR part 84.
(h) Neither appropriated fund activities nor nonappropriated fund
instrumentalities may assert any claim to the assets, or incur or assume
any obligation of any private organization covered by this part except
as may arise out of contractual relationships. Property abandoned by a
private organization on its disestablishment or departure from the
installation, or donated by it to the installation, may be acquired by
the DoD installation under the terms of applicable agreements, statutes,
and DoD policy.
(i) Adequate insurance, as defined by the Service concerned, shall
be secured by the organization to protect against public liability and
property damage claims or other legal actions that may arise as a result
of activities of the organization or one or more of its members acting
in its behalf, or the operation of any equipment, apparatus or device
under the control and responsibility of the private organization.
(j) Private organizations shall be responsible for ensuring
applicable fire and safety regulations, environmental laws, local,
state, and Federal tax codes, and any other applicable statutes and
regulations are complied within the operation of the private
organization.
(k) Income shall not accrue to individual members except through
wages and salaries as employees of the private organization or as award
recognition for service rendered to the private organization or military
community. The head of a DoD installation concerned may approve the
operation of private organizations, such as investment clubs, in which
the investment of members' personal funds result in a return on
investment directly and solely to the individual members.
(l) 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 private organization on a DoD installation covered
by this part. DoD installations will publicly disseminate information on
procedures for individuals to follow at the local installation when
unlawful discrimination by private organizations is suspected.
(m) Applicable laws on labor standards for employment shall be
observed.
(n) This part does not apply to the following organizations, which
are governed by DoD Directives and Instructions as referenced:
(1) Scouting organizations operating at U.S. military installations
located overseas (DoD Instruction 1015.9).\3\
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\3\ See footnote to Sec. 212.1(b).
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(2) American National Red Cross (DoD Directive 1330.5).\4\
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\4\ See footnote to Sec. 212.1(b).
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(3) United Service Organizations, Inc. (DoD Directive 1330.12).\5\
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\5\ See footnote to Sec. 212.1(b).
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(4) United Seamen's Service (DoD Directive 1330.16).\6\
---------------------------------------------------------------------------
\6\ See footnote to Sec. 212.1(b).
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(5) Financial Institutions on DoD Installations (32 CFR part 231).
(o) Certain unofficial activities may be conducted on DoD
installations, but need not be formally authorized because of the
limited scope of their activities, membership or funds. Examples are
office coffee funds, flower funds, and similar small, informal
activities and funds. DoD Components shall establish the basis upon
which
[[Page 382]]
such informal activities and funds shall operate.
PART 215_EMPLOYMENT OF MILITARY RESOURCES IN THE EVENT OF CIVIL
DISTURBANCES--Table of Contents
Sec.
215.1 Purpose and scope.
215.2 Applicability.
215.3 Definitions.
215.4 Legal considerations.
215.5 Policies.
215.6 Responsibilities.
215.7 Command relationships.
215.8 Organization and administration.
215.9 Providing military resources to civil authorities.
215.10 Funding.
Authority: Chapter 15 of title 10 U.S.C. (10 U.S.C. 331 et seq.).
Source: 37 FR 3637, Feb. 18, 1972, unless otherwise noted.
Sec. 215.1 Purpose and scope.
This part establishes uniform Department of Defense policies,
assigns responsibilities, and furnishes general guidance for utilizing
DoD military and civilian personnel, facilities, equipment or supplies:
(a) In support of civil authorities during civil disturbances within
the 50 States, District of Columbia, Commonwealth of Puerto Rico, U.S.
possessions and territories, or any political subdivision thereof.
(b) In other related instances where military resources may be used
to protect life or Federal property or to prevent disruption of Federal
functions.
Sec. 215.2 Applicability.
This part is applicable to all components of the Department of
Defense (the Military Departments, Organization of the Joint Chiefs of
Staff, Defense Agencies, and the unified and specified commands) having
cognizance over military resources which may be utilized in accordance
with the policies set forth herein.
Sec. 215.3 Definitions.
(a) Civil disturbances are group acts of violence and disorders
prejudicial to public law and order within the 50 States, District of
Columbia, Commonwealth of Puerto Rico, U.S. possessions and territories,
or any political subdivision thereof. The term civil disturbance
includes all domestic conditions requiring the use of Federal armed
forces pursuant to the provisions of chapter 15 of Title 10, United
States Code.
(b) Federal property is that property which is owned, leased,
possessed, or occupied by the Federal Government.
(c) Military resources include military and civilian personnel,
facilities, equipment, and supplies under the control of a DoD
component.
(d) A Federal function is any function, operation, or action carried
out under the laws of the United States by any department, agency, or
instrumentality of the United States or by an officer or employee
thereof.
Sec. 215.4 Legal considerations.
(a) Under the Constitution and laws of the United States, the
protection of life and property and the maintenance of public order are
primarily the responsibilities of State and local governments, which
have the necessary authority to enforce the laws. The Federal Government
may assume this responsibility and this authority only in certain
limited instances.
(b) Aside from the constitutional limitations of the power of the
Federal Government at the local level, there are additional legal limits
upon the use of military forces within the United States. The most
important of these from a civil disturbance standpoint is the Posse
Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of
the Army or the Air Force to execute or enforce the laws, except as
authorized by the Constitution or Act of Congress.
(c) The Constitution and Acts of Congress establish six exceptions,
generally applicable within the entire territory of the United States,
to which the Posse Comitatus Act prohibition does not apply.
(1) The constitutional exceptions are two in number and are based
upon the inherent legal right of the U.S. Government--a sovereign
national entity under the Federal Constitution--to insure the
preservation of public order and the carrying out of governmental
[[Page 383]]
operations within its territorial limits, by force if necessary.
(i) The emergency authority. Authorities prompt and vigorous Federal
action, including use of military forces, to prevent loss of life or
wanton destruction of property and to restore governmental functioning
and public order when sudden and unexpected civil disturbances,
disasters, or calamities seriously endanger life and property and
disrupt normal governmental functions to such an extent that duly
constituted local authorities are unable to control the situations.
(ii) Protection of Federal property and functions. Authorizes
Federal action, including the use of military forces, to protect Federal
property and Federal governmental functions when the need for protection
exists and duly constituted local authorities are unable or decline to
provide adequate protection.
(2) There are four exceptions to the Posse Comitatus Act based on
Acts of Congress.
(i) In the cases of each of the first three of those described,
paragraphs (c)(2)(i) (a), (b), and (c) of this section, personal
Presidential action, including the issuance of a proclamation calling
upon insurgents to disperse and retire peaceably within a limited time,
is a prerequisite.
(a) 10 U.S.C. 331. Authorizes use of the militia and Armed Forces
when a State is unable to control domestic violence, and a request for
Federal assistance has been made by the State legislature or governor to
the President. Implements Article IV, section 4, of the Constitution.
(b) 10 U.S.C. 332. Authorizes use of the militia and Armed Forces to
enforce Federal law when unlawful obstructions or rebellion against the
authority of the United States renders ordinary enforcement means
unworkable. Implements Article II, section 3, of the Constitution.
(c) 10 U.S.C. 333. Authorizes use of the militia and Armed Forces
when domestic violence or conspiracy hinders execution of State or
Federal law, and a State cannot or will not protect the constitutional
rights of the citizens. Implements Article II, section 3, and the 14th
Amendment of the Constitution.
(d) House Joint Resolution 1292, June 6, 1968.\1\ Directs all
departments of the Government, upon the request of the Secret Service,
to assist that Service in carrying out its statutory duties to protect
Government officials and major political candidates from physical harm.
Assistance to the Secret Service is governed by DoD Directive 3025.13,
``Employment of Department of Defense Resources in Support of the United
States Secret Service,'' July 15, 1968.\2\
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\1\ Although this resolution has been placed in the Statutes at
Large as Public Law 90-331, 82 Stat. 170, it has not been codified; it
is set out in the notes to 18 U.S.C. 3056.
\2\ Filed as part of original copies available from U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA
19120, Code: 300.
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(ii) It should be noted that none of the above authorities, in and
of itself, provides sufficient legal basis to order members of the
Reserve components to active Federal service.
Sec. 215.5 Policies.
(a) The employment of DoD military resources for assistance to civil
authorities in controlling civil disturbances will normally be
predicated upon the issuance of a Presidential Executive order or
Presidential directive authorizing and directing the Secretary of
Defense to provide for the restoration of law and order in a specific
State or locality. Exceptions to this condition will be limited to:
(1) Cases of sudden and unexpected emergencies as described in Sec.
215.4(c)(1)(i), which require that immediate military action be taken.
(2) Providing military resources to civil authorities as prescribed
in Sec. 215.9 of this part.
(b) The Attorney General of the United States has been designated to
receive and coordinate preliminary requests from States for Federal
military assistance authorized by 10 U.S.C. 331 (Sec.
215.4(c)(2)(i)(a)). Formal requests from States for such aid will be
made to the President, who will determine what Federal action will be
taken.
(c) The Secretary of the Army is delegated any and all of the
authority of the President under chapter 15 of title 10, U.S.C. (Sec.
215.4(c)(2)(i) (a), (b), and (c))
[[Page 384]]
which has been or may be hereafter delegated by the President to the
Secretary of Defense.
(d) The Secretary of the Navy and the Secretary of the Air Force are
delegated all that authority which has been or may be hereafter
delegated by the President to the Secretary of Defense to order to
active duty, units and members of the Reserve Components under their
respective jurisdictions, except National Guard units and members, for
use pursuant to chapter 15 of title 10, U.S.C. (Sec. 215.4(c)(2)(i)
(a), (b), and (c)).
(e) DoD components and their subordinate activities will coordinate
with local civil authorities or local military commanders as
appropriate, to assure mutual understanding of the policies and
procedures to be adhered to in an actual or anticipated civil
disturbance situation.
(f) DoD civilian employees generally should not be used to assist
civil authorities in connection with civil disturbances, except as
provided for in Sec. 215.9(b)(3).
(g) The prepositioning of more than a battalion-sized unit, as
authorized in Sec. 215.6(a)(6), will be undertaken only with the
approval of the President. Requests for the prepositioning of forces
will be addressed to the Attorney General.
Sec. 215.6 Responsibilities.
(a) The Secretary of the Army is designated as the Executive Agent
for the Department of Defense in all matters pertaining to the planning
for, and the deployment and employment of military resources in the
event of civil disturbances. As DoD Executive Agent, the Secretary of
the Army (or the Under Secretary of the Army, as his designee) is
responsible for:
(1) Providing policy and direction concerning plans, procedures, and
requirements to all DoD components having cognizance over military
resources which may be employed under the provisions of this part.
(2) Improving and evaluating the capabilities of the National Guard
to deal with civil disturbances.
(3) Establishing DoD policies and procedures for:
(i) Calling the National Guard to active Federal service and
ordering the National Guard and other Reserve components to active duty;
and
(ii) The employment of such forces that may be required to carry out
the purposes of this part.
(4) Calling to active Federal service:
(i) The Army National Guard units or members required to carry out
the provisions of the Presidential Executive order or other appropriate
authority.
(ii) The Air National Guard units or members required to carry out
the provisions of the Presidential Executive order or other appropriate
authority, subject to the provisions of paragraph (c)(1)(i) of this
section.
(5) Providing military resources of the U.S. Army, consistent with
defense priorities to include:
(i) The military resources of the Army National Guard called to
active Federal service under the provisions of paragraph (a)(4)(i) of
this section.
(ii) The military resources of the Army Reserve (other than Army
National Guard) ordered to active duty to carry out the purposes of this
part.
(6) Exercising through designated military commanders the direction
of military resources committed or assigned for employment in the event
of actual or potential civil disturbances. When circumstances warrant,
such direction will include:
(i) Alerting, and, if necessary, prepositioning predesignated ground
forces; and
(ii) Directing the Secretary of the Air Force to alert and provide
the necessary airlift resources (see Sec. 215.5(g)).
(7) Devising command, control, and communications arrangements to
insure effective coordination and responsiveness among Defense agencies,
military departments, the Joint Chiefs of Staff, and Commanders-in-Chief
(CINCs) of unified and specified commands, under conditions of
prepositioning, deployment, or employment of military resources. Maximum
utilization will be made of existing reports of the Joint Reporting
Structure
[[Page 385]]
(JRS), as prescribed in JCS Pub 6.\3\ Arrangements and reports affecting
commanders of unified and specified commands will be coordinated with
the JCS.
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\3\ Not available to the public. Copies have been distributed to
appropriate military commanders.
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(8) Promulgating in implementation of DoD Directive 5200.27,
``Acquisition of Information Concerning Persons and Organizations not
Affiliated with the Department of Defense,'' March 1, 1971,\1\ strict
policy guidelines designed to restrict to the maximum extent consistent
with the effective conduct of actual civil disturbance operations the
collection and maintenance of intelligence data in support of military
civil disturbance planning and operations within the Department of
Defense.
(9) Keeping the Secretary of Defense informed of unusual military
resource requirements (actual or potential) and other significant
developments in connection with civil disturbance planning and
operations.
(10) Establishing procedures for the review and coordination of all
DoD components' directives, instructions, and plans affecting civil
disturbance planning and operations to assure conformity with DoD
policies stated herein and DoD Executive Agent policies.
(11) Providing for the establishment of a DoD Civil Disturbance
Steering Committee and a Directorate of Military Support (see Sec.
215.8).
(12) Providing the necessary facilities, equipment, and personnel as
required by the Assistant Secretary of Defense (Public Affairs) in the
accomplishment of his public affairs responsibilities set forth in
paragraph (f) of this section.
(13) Within the restrictions established by DoD Directive 5200.27,
``Acquisition of Information Concerning Persons and Organizations not
Affiliated with the Department of Defense,'' March 1, 1971,\1\ and the
implementing guidelines referred to in paragraph (a)(8) of this section,
providing essential planning, operational, and intelligence data to the
National Military Command Center (NMCC) and the military service command
centers on a timely basis to insure that the National Command
Authorities and appropriate military service command authorities are
adequately informed.
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\1\ See footnote 1 to Sec. 215.4(c)(2)(i)(d).
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(b) The Joint Chiefs of Staff are responsible for:
(1) Establishing procedures that will promptly transfer military
resources that are assigned to unified and specified commands (i) to the
military departments for civil disturbance operations in the Continental
United States (CONUS) or (ii) to unified commands for such operations
outside the CONUS, as directed by the DoD Executive Agent and consistent
with defense priorities.
(2) Maintaining an appropriate strategic reserve for worldwide
employment and contingency operations.
(3) Insuring that directives concerning civil disturbances are
issued to the commanders of unified commands, for the employment of
military resources outside the CONUS, in accordance with direction and
guidance provided by the DoD Executive Agent.
(c) The Secretary of the Air Force is responsible for:
(1) Providing military resources of the U.S. Air Force, as required
by the DoD Executive Agent and consistent with defense priorities, to
include:
(i) Designating and providing the specific units or members of the
Air National Guard to be called to active Federal service under the
provisions of paragraph (a)(4)(ii) of this section.
(ii) Designating and providing the military resources of the Air
Force Reserve (other than Air National Guard) order to active duty to
carry out the purposes of this part.
(2) Exercising for the DoD Executive Agent, through designated
military commanders, coordinating authority over and direction of DoD
provided military and commercial obligated airlift resources used to
fulfill civil disturbance airlift requirements.
(3) Providing airlift to deploy and redeploy civil disturbance
forces and for supply, resupply, and aeromedical evacuation.
(d) The Secretary of the Navy is responsible for:
(1) Designating and providing military resources of the U.S. Navy
and the
[[Page 386]]
U.S. Marine Corps, as required by the DoD Executive Agent and consistent
with defense priorities, to include ordering to active duty and
utilizing the resources of the Naval Reserve and the Marine Corps
Reserve required to carry out the purposes of this directive.
(2) Insuring that Navy and Marine forces committed in connection
with civil disturbances are trained and equipped in accordance with
criteria established by the DoD Executive Agent.
(3) Making airlift resources available to the Secretary of the Air
Force, consistent with defense priorities, as requested by him in the
accomplishment of his airlift responsibilities set forth in paragraph
(c) of this section.
(e) The Defense agencies are responsible for providing military
resources as required, and advice and assistance on matters within their
spheres of responsibility, to the DoD Executive Agent and to the
Secretaries of the military departments and to the Joint Chiefs of Staff
in the discharge of their responsibilities.
(f) The Assistant Secretary of Defense (Public Affairs) is
responsible for all DoD public affairs matters related to civil
disturbances. To assure efficiency and responsiveness in keeping the
public fully informed, he will:
(1) Provide direction and guidance to the DoD Executive Agent on all
aspects of public release of information relating to civil disturbances.
(2) Assign Public Affairs representatives, of appropriate rank, to
the Directorate of Military Support during civil disturbance operations.
(3) Designate as required onsite DoD Public Affairs Chiefs who will
furnish appropriate advice and guidance to task force commanders and,
upon request or by direction of appropriate authorities, to other
representatives of the Federal Government. The onsite Public Affairs
Chief is responsible for releasing all military information to the
public in the affected area(s). He will be responsible for such other
public affairs functions as directed by competent authority. In the
event of a disagreement concerning the releasing of military information
to the public between a task force commander and the onsite Public
Affairs Chief, the issue will be resolved by the ASD(PA) who will
coordinate with the DoD Executive Agent to the extent feasible.
Sec. 215.7 Command relationships.
(a) In the event of civil disturbances within the CONUS:
(1) Military resources of the unified or specified commands will be
transferred by the JCS to their respective military departments, when
directed by the DoD Executive Agent. (Such resources will revert to the
unified or specified commands when directed by the DoD Executive Agent.)
(2) The DoD Executive Agent is delegated the authority to exercise,
through the Chief of Staff, U.S. Army, the direction of those forces
assigned or committed to him by the military departments.
(b) In the event of civil disturbances outside of CONUS, the DoD
Executive Agent is delegated the authority to exercise the direction of
those forces assigned or committed to the commanders of unified or
specified commands through the Chief of Staff, U.S. Army, and Task Force
Commanders designated by JCS.
(c) At objective areas, designated task force commanders will
exercise operational control over all military forces assigned for
employment in the event of civil disturbances.
Sec. 215.8 Organization and administration.
(a) A DoD Civil Disturbance Steering Committee will be established
to provide advice and assistance to the DoD Executive Agent concerning
civil disturbance matters. The Committee Chairman will be the Under
Secretary of the Army. Members will include:
Deputy Attorney General of the United States.
Assistant Secretaries of Defense (Comptroller) and (Public Affairs).
General Counsel of the DoD.
Under Secretaries of the Navy and Air Force.
Vice Chiefs of Staff of the Army and Air Force.
Vice Chief of Naval Operations and Assistant Commandant of the Marine
Corps.
Representative of the JCS.
(b) A Directorate of Military Support (DOM's) will be established by
the DoD Executive Agent with a joint service
[[Page 387]]
staff under the Chief of Staff, U.S. Army. The Department of the Army
will provide the Director and the Department of the Air Force will
provide the Deputy Director. The DOMs will plan, coordinate, and direct
civil disturbance operations.
Sec. 215.9 Providing military resources to civil authorities.
This section provides general guidance for the handling of requests
for DoD facilities, personnel, equipment, or supplies, received from
officials of the 50 States, District of Columbia, Commonwealth of Puerto
Rico, U.S. possessions and territories, or any political subdivision
thereof, for use in connection with civil disturbances.
(a) Loan policy. Civil authorities, National Guard, and Federal
agencies will be encouraged to provide sufficient resources of their
own, so as to minimize the need to rely on DoD assistance.
(1) Classification of resources. Military resources will be
classified into three groups, as follows:
(i) Group One. Personnel, arms, ammunition, tank-automotive
equipment, and aircraft.
(ii) Group Two. Riot control agents, concertina wire, and other like
military equipment to be employed in control of civil disturbances which
is not included in Group One.
(iii) Group Three. Firefighting resources (to include operating
personnel); equipment of a protective nature (such as masks, helmets,
body armor vests) and other equipment not included in Group One or Two
(such as clothing, communications equipment, searchlights); and the use
of DoD facilities.
(2) Requests for personnel to be used in a direct law enforcement
role are not within the purview of this part and must be made by the
legislature or governor of a State in accordance with 10 U.S.C. 331.
Pursuant to the Posse Comitatus Act, DoD operating personnel employed in
connection with loaned equipment may not be used in a direct law
enforcement role.
(3) Repair parts and POL items are classified according to the group
of the equipment for which the parts or POL are intended.
(b) Approval of requests. (1) Requests for Group One military
resources may be granted only with the personal approval of the DoD
Executive Agent or, when designated by him for that purpose, the Under
Secretary of the Army.
(2) Requests for Group Two military resources may be granted only
with the personal approval of the DoD Executive Agent, or the following
individuals when designated by him for that purpose:
(i) The Under Secretary of the Army;
(ii) The Director and Deputy Director of Military Support; or
(iii) A Task Force Commander employed at an objective area during a
civil disturbance.
(3) Requests for Group Three resources may be granted by Secretaries
of the military departments, CINCs of unified and specified commands
outside CONUS; or commanders of military installations or organizations
who have been delegated such authority by the appropriate Service
Secretary or CINC.
(i) Installation commanders are authorized to provide emergency
explosive ordnance disposal service in accordance with applicable
regulations of respective military departments.
(ii) The Director, Defense Supply Agency, is authorized to approve
requests from subordinate agencies for firefighting assistance in
connection with civil disturbances. Where installation fire departments
have mutual aid agreements with nearby civil communities, the
installation commander is authorized to provide emergency civilian or
mixed civilian/military firefighting assistance. In the absence of a
mutual aid agreement and when it is in the best interest of the United
States, a commander with Group Three approval authority is authorized to
provide emergency civilian or mixed civilian/military assistance in
extinguishing fires and in preserving life or property from fire, within
the vicinity of an installation. In either case, civilian firefighters
may be used provided:
(a) In civil disturbance situations where there is significant
danger of physical harm to firefighters, the civilian employees
volunteer for the assignment. (DoD civilian employees acting in this
volunteer capacity are acting as Federal employees.)
[[Page 388]]
(b) Firefighting equipment will not be used for riot control.
(c) Civil authorities recognize that prior to the commitment of
Federal forces to assist in restoring law and order, the protection of
firefighting crews and equipment is the responsibility, in ascending
order, of municipal, county, and State officials. Failure on the part of
such authorities to recognize this responsibility and/or to provide
adequate protection will be grounds for refusal to commit installation
resources or for withdrawal of resources already committed.
(4) Requests for Groups One, Two, or Three resources, and for
renewal of outstanding loans, may be denied at any level in the chain of
command down to and including commanders delegated Group Three approval
authority.
(c) Processing of requests. (1) All requests will be promptly
submitted through channels to the appropriate approving authorities
using the format established by the DoD Executive Agent.
(2) Requests will be forwarded and processed in keeping with the
degree of urgency dictated by the situation.
(3) Requests received by personnel of Defense agencies will be
referred to local military commanders for processing, except that DSA
subordinate agencies will forward requests for firefighting assistance
to DSA.
(4) Request from civil law enforcement agencies for training
assistance related to the control of civil disturbances will not be
approved at the local level. Such requests should be referred to the
nearest U.S. attorney, Department of Justice.
(d) Reporting of requests. (1) Reports of all requests for military
resources (approved, denied, or pending) will be prepared by all
appropriate approving authorities, using the format established by the
DoD Executive Agent, and forwarded through channels as follows:
(i) To the military department headquarters, in the case of requests
received in the CONUS by the four Services.
(ii) To the DoD Executive Agent, in the case of requests for
firefighting assistance received by the Defense Supply Agency.
(iii) To the JCS, in the case of requests received by organizations
or installations over which the commanders of the unified and specified
commands exercise command authority.
(2) Reports received by the military department headquarters and JCS
will be transmitted to the DoD Executive Agent, who, in turn, will
transmit information copies of all approved requests for Groups One and
Two military resources to the General Counsel of the DoD and the Deputy
Attorney General of the United States.
(3) In addition, a weekly summary report of all requests will be
compiled by the DoD Executive Agent, showing action taken (approved,
denied, or pending) and submitted to the General Counsel of the DoD, the
Assistant Secretary of Defense (Installations and Logistics), and the
Deputy Attorney General of the United States. Negative summary reports
are required.
(4) The reporting requirements prescribed herein are assigned Report
Control Symbol DD-A(AR)1112.
Sec. 215.10 Funding.
(a) Reporting requirements to provide for financing costs associated
with civil disturbance operations, to include reimbursement of military
department expenditures, will be in accordance with DoD Instruction
7200.9, ``Financing and Reporting Costs of Military Resources Used in
Civil Disturbances,'' January 26, 1970,\4\ and DoD Executive Agent
implementing instructions.
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\4\ Although this resolution has been placed in the Statutes at
Large as Pub. L. 90-331, 82 Stat. 170, it has not been codified; it is
set out in the notes to 18 U.S.C. 3056.
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(b) Military assistance (Groups One, Two, and Three military
resources) provided to civil authorities, under the provisions of Sec.
215.9, will be on a reimbursable or reclaimable basis as appropriate.
PART 216_MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS PROGRAM
ACCESS TO INSTITUTIONS OF HIGHER EDUCATION--Table of Contents
Sec.
216.1 Purpose.
[[Page 389]]
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: 63 FR 56821, Oct. 23, 1998, unless otherwise noted.
Sec. 216.1 Purpose.
This part:
(a) Implements the National Defense Authorization Act of 1995 (108
Stat. 2663),
(b) Implements 10 U.S.C. 983, and
(c) Implements the Omnibus Consolidated Appropriations Act, 1997
(110 Stat. 3009).
(d) Updates policy and responsibilities relating to the management
of covered schools that have a policy of either denying, or effectively
preventing military recruiting personnel entry to their campuses, access
to their students, or access to student recruiting information.
(e) 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, 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''). The
policies herein also affect the Departments of Transportation, Labor,
Health and Human Services, Education, and Related Agencies. 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 Physician Payment Review Commission,
the Prospective payment Assessment 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 school. An institution of higher education, or a
subelement of an institution of higher education, subject to the
following clarifications:
(1) In the event of a determination (Sec. 216.5) affecting only a
subelement of a parent institution (see Sec. 216.3(d)), the limitations
on the use of funds (Sec. 216.4(a) and (b)) shall apply only to the
subelement and not to the parent institution as a whole.
(2) The limitations on the use of funds (Sec. 216.4(a) and (b))
shall not apply to any individual institution of higher education that
is part of a single university system if that individual institution
does not prevent entry to campus, access to students, or access to
student recruiting information by military recruiters, or have an anti-
ROTC policy, even though another campus of the same system is affected
by a determination under Sec. 216.5(a).
(c) Student recruiting information. For those currently enrolled,
the 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.
(d) Institution of higher education. A domestic college, university,
or other
[[Page 390]]
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, or other graduate schools). For example, the School of Law of
XYZ University is a subelement of its parent institution (XYZ
University).
(e) Student. An individual who is 17 years of age or older and is
enrolled at a covered school.
(f) Enrolled. Registered for a least one credit hour of academic
credit at the covered school during the most-recent, current, or next
term.
(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.
Sec. 216.4 Policy.
It is policy that:
(a) Under 108 Stat. 2663 and 110 Stat. 3009, no funds available
under appropriations acts for any fiscal year for the Departments of
Defense, Transportation (with respect to military recruiting), Labor,
Health and Human and Human Services, Education, and Related Agencies may
be provided by contract or by grant (including a grant of funds to be
available for student aid) to a covered school if the Secretary of
Defense determines that the covered school has a policy or practice
(regardless of when implemented) that either prohibits or in effect
prevents the Secretary of Defense from obtaining, for military
recruiting purposes, entry to campuses, access to students on campuses,
or access to directory information on students (student recruiting
information).
(b) Under 110 Stat. 3009, no funds available under appropriations
acts for any fiscal year for the Departments of Labor, Health and Human
Services, Education, and Related Agencies may be provided by contract or
grant (including a grant of funds to be available for student aid) to a
covered school that has an anti-ROTC policy or practice (regardless of
when implemented). Additionally, under 10 U.S.C. 983, no funds
appropriated or otherwise available to the Department of Defense may be
made obligated by contract or by grant to a covered school that has such
a policy or practice.
(c) 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 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 at least equal in
quality and scope to that afforded to other employers;
(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 four months (for institutions without
academic terms);
(5) When not providing student recruiting information for specific
students, certifies that each student concerned has formally requested
the covered school to withhold this information from third parties;
(6) Permits employers to recruit on the premises of the covered
school only in response to an expression of student interest, and the
covered school;
[[Page 391]]
(i) Provides the Military Services with the same opportunities to
inform the students of military recruiting activities as are available
to other employers; or
(ii) Certifies that too few students have expressed an interest to
warrant accommodating military recruiters, applying the same criteria
that are applicable to other employers; or
(7) Is prohibited by the law of any State, or by the order of any
State court, from allowing Federal military recruiting on campus. Such
exemption does not apply to funds available to the Department of
Defense, in accordance with 108 Stat. 2663.
Note: This exemption terminated effective March 29, 1998, in
accordance with 110 Stat. 3009.
(d) The limitations established in paragraph (b) 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 (b) of
this section;
(2) Has a long-standing policy of pacifism based on historical
religious affiliation;
(3) Is prohibited by the law of any State, or by the order of any
State court, from allowing Senior Reserve Officer Training Corps
activities on campus. Such exemption does not apply to funds available
to the Department of Defense, in accordance with 10 U.S.C. 983.
Note: This exemption terminated effective March 29, 1998, in
accordance with 110 Stat. 3009.
(e) A covered school may charge for actual costs incurred in
providing military recruiters access to student recruiting information,
provided such charges are reasonable and customary; in this case, the
school must explain to the military recruiter, within 15 days of a
request by the recruiter, its method for determining costs, and its
basis for concluding that such charges are reasonable and customary.
(f) An evaluation to determine whether a covered school maintains a
policy or practice covered by paragraph (a) of this section shall be
undertaken when:
(1) Military recruiting personnel cannot gain entry to campus,
cannot obtain access to students on campus, or are denied access to
student recruiting information (however, military recruiting personnel
shall accommodate a covered school's reasonable preferences as to times
and places for scheduling on-campus recruiting, to the same extent such
preferences are applicable to employers, generally);
(2) The costs being charged by the school for providing student
recruiting information are believed by the military recruiter to be
excessive, and the school does not provide information sufficient to
support a conclusion that such charges are reasonable and customary; or
(3) The covered school is unwilling to declare in writing, in
response to an inquiry from a DoD component, that the covered school
does not have a policy or practice of denying, and that it does not
effectively prevent, the Secretary of Defense from obtaining for
military recruiting purposes entry to campuses, access to students on
campuses, or access to student recruiting information.
(g) An evaluation to determine whether a covered school has an anti-
ROTC policy covered by paragraph (b) of this section shall be undertaken
when:
(1) A Secretary of a Military Department of 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 Assistant Secretary of Defense for Force Management Policy,
under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Not later than 45 days after receipt of the information
described in paragraph (b)(3) of this section:
(i) Make a final determination under 108 Stat. 2663, 10 U.S.C.,
section 983; and 110 Stat. 3009 and/or this part, and notify any
affected school of that determination along with the basis, and that it
is therefore ineligible to receive
[[Page 392]]
prescribed funds as a result of that determination.
(ii) Disseminate to Federal agencies affected by 110 Stat. 3009, to
the DoD components, and to the General Services Administration (GSA) the
names of covered schools identified under paragraph (a)(1)(i) of this
section, and the basis of the determination.
(iii) Disseminate the names of covered schools identified under
paragraph (a)(1)(i) of this section, to the Secretary of Education and
to the Committee on Armed Services of the Senate and the Committee on
National Security of the House of Representatives.
(iv) Inform the applicable school identified under paragraph
(a)(1)(i) 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)(i) 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)(ii) and (iii)
of this section when a determination of funding ineligibility (paragraph
(a)(1)(i) of this section) has been rescinded.
(3) Publish in the Federal Register each determination of the
Assistant Secretary of Defense for Force Management Policy that a
covered school is ineligible for contracts and grants made under 108
Stat. 2663, 10 U.S.C., section 983, and 110 Stat. 3009 and/or this part.
(4) Publish in the Federal Register at least once every six months a
list of covered schools that are ineligible for contracts and grants by
reason of a determination of the Secretary of Defense under 108 Stat.
2663, 10 U.S.C., section 983, and 110 Stat. 3009 and/or this part.
(b) The Secretaries of the Military Departments shall:
(1) Identify covered schools that, by policy or practice, deny
military recruiting personnel entry to the campus(es) of those schools,
access to their students, or access to student recruiting information.
(i) When requests by military recruiters to schedule recruiting
visits or to obtain student recruiting information are unsuccessful, the
Military Service concerned 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 to accompany the submission
to the ASD(FMP), and shall be provided 30 days to offer such clarifying
comments.
(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 of this part shall be used to communicate
the problem to the school, and the inquiry shall be managed as described
in Sec. 216.5.(b)(1)(i). Schools may stipulate that requests for
student recruiting information shall 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
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 to accompany
the
[[Page 393]]
submission to the ASD(FMP), and shall be provided 30 days to offer such
clarifying comments.
(3) Evaluate responses to the letter of inquiry, and other such
evidence obtained in accordance with this part, and submit to the
ASD(FMP) 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 ASD(FMP) 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 shall:
(1) Provide the ASD(FMP) with the names and addresses of covered
schools identified as a result of evaluation(s) required under
Sec. Sec. 216.4(f) and (g).
(2) Take immediate action to deny obligations of DoD Funds to
covered schools identified under paragraph (a)(1)(i) 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. Sec. 216.5 (b) and
(c)(1) have been assigned Report Control Symbol P&R-(AR)-2038 in
accordance with DoD 8910.1-M.\1\
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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Appendix A to Part 216--Military Recruiting Sample Letter of Inquiry
(Tailor letter to situation presented)
Dr. John Doe
President
ABC College
Anywhere, USA 12345-9876
Dear Dr. Doe: I understand that military recruiting personnel (are
unable to recruit on the campus of ABC College) (have been refused
student recruiting information \1\ on ABC College students for the
purpose of military recruiting) by a policy or practice of the College.
Current law \2\ prohibits funds by grant or contract (includng a grant
of funds to be available for student aid) from appropriations of the
Departments of Defense, Transportation (with respect to military
recruiting), Labor, Health and Human Services, Education, and Related
Agencies to schools that have a policy or practice of denying military
recruiting personnel entry to campuses, access to students on campuses,
or access to student recruiting information. Implementing regulations
are codified at 32 Code of Federal Regulations, part 216.
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\1\ Student recruiting information refers to a student's name,
address, telephone listing, age (or year or birth), level of education
(e.g., freshman, sophomore, or degree awarded for a recent graduate),
and major.
\2\ 108 Stat. 2663 and 110 Stat. 3009.
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This letter provides you an opportunity to clarify your
institution's policy regarding military recruiting on the campus of ABC
College. 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, and to student recruiting information 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, Department of Defense officials will make
a determination as to your institution's eligiblity to receive funds by
grant or contract. That decision may affect eligiblity for funding from
appropriations of the Departments of Defense, Transportation, Labor,
Health and Human Services, Education, and Related Agencies. Should it be
determined that ABC College is in violation of the aforementioned
statutes, such funding would be stopped, and the school would be
ineligible to receive such funds in the future.
I regret that this action may have to be taken. Successful
recruiting requires that Department of Defense recruiters have
reasonable access to students on the campuses of colleges and
universities, and at the same time have effective relationships with the
officials and student bodies of those institutions. I hope it will be
possible to (define the correction to the aforementioned problem
area(s). I am available to answer any questions.
Sincerely,
Appendix B to Part 216--ROTC Sample Letter of Inquiry
(Tailor Letter to Situation Presented)
Dr. Jane Smith
President
ABC College
Anywhere, USA 12345-9876
Dear Dr. Smith: I understand that ABC College has (refused a request
from a Military Department to establish a Senior ROTC
[[Page 394]]
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
College. Current law \1\ prohibits funds by grant or contract (including
a grant of funds to be available for student aid) from appropriations of
the Departments of Defense, Labor, Health and Human Services, Education,
and Related Agencies to schools that have a policy or practice
prohibiting or preventing the Secretary of Defense from maintaining,
establishing, or efficiently operating a Senior ROTC unit. Those
statutes also bar agency funds for schools that prohibit or prevent a
student from enrolling in an ROTC unit at another institution of higher
education. Implementing regulations are codified at 32 Code of Federal
Regulations, part 216.
---------------------------------------------------------------------------
\1\ 10 U.S.C. 983 and 110 Stat. 3009.
---------------------------------------------------------------------------
This letter provides you an opportunity to clarify your
institution's policy regarding ROTC access on the campus of ABC College.
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 funds by
grant or contract. The decision may affect eligibility for funding from
appropriations of the Departments of Defense, Labor, Health and Human
Services, Education, and Related Agencies. Should it be determined that
ABC College is in violation of the aforementioned statutes, such funding
would be stopped, and the school would be ineligible to receive such
funds in the future.
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)). I am available to answer any
questions.
PART 218_GUIDANCE FOR THE DETERMINATION AND REPORTING OF NUCLEAR
RADIATION DOSE FOR DoD PARTICIPANTS IN THE ATMOSPHERIC NUCLEAR
TEST PROGRAM (1945-1962)--Table of Contents
Sec.
218.1 Policies.
218.2 General procedures.
218.3 Dose reconstruction methodology.
218.4 Dose estimate reporting standards.
Authority: Pub. L. 98-542, 98 Stat. 2725 (38 U.S.C. 354 Note.)
Source: 50 FR 42521, Oct. 21, 1985, unless otherwise noted.
Sec. 218.1 Policies.
(a) Upon request by the Veterans Administration in connection with a
claim for compensation, or by a veteran or his or her representative,
available information shall be provided by the applicable Military
Service which shall include all material aspects of the radiation
environment to which the veteran was exposed and shall include inhaled,
ingested and neutron doses. In determining the veteran's dose, initial
neutron, initial gamma, residual gamma, and internal (inhaled and
ingested) alpha, beta, and gamma shall be considered. However, doses
will be reported as gamma dose, neutron dose, and internal dose. The
minimum standards for reporting dose estimates are set forth in Sec.
218.4.
(b) The basic means by which to measure dose from exposure to
ionizing radiation is the film badge. Of the estimated 220,000
Department of Defense participants in atmospheric nuclear weapons tests,
about 145,000 have film badge dose data available. The information
contained in the records has been reproduced in a standard format and is
being provided to each military service, which can use the film badge
dose data to obtain a radiation dose for a particular individual from
that service. This is done upon request from the individual, the
individual's representative, the Veterans Administration, or others as
authorized by the Privacy Act. Upon request, the participant or his or
her authorized representative will be informed of the specific
methodologies and assumptions employed in estimating his or her dose.
The participant can use this information to obtain independent options
regarding exposure.
(c) From 1945 through 1954, the DoD and Atomic Energy Commission
(AEC) policy was to issue badges only to a portion of the personnel in a
homogeneous unit such as a platoon of a battalion combat team, Naval
ship or aircraft crew. Either one person was badged in a group
performing the same function, or only personnel expected to be exposed
to radiation were badged. After 1954, the policy was to badge all
[[Page 395]]
personnel. But, some badges were unreadable and some records were lost
or destroyed, as in the fire at the Federal Records Center in St. Louis.
For these reasons the Nuclear Test Personnel Review (NTPR) Program has
focused on determining the radiation dose for those personnel (about
75,000) who were not issued film badges or for whom film badge records
are not available.
(d) In order to determine the radiation dose to individuals for whom
film badge data are not available, alternative approaches are used as
circumstances warrant. All approaches require investigation of
individual or group activities and their relationship to the
radiological environment. First, if it is apparent that personnel were
not present in the radiological environment and had no other potential
for exposure, then their dose is zero. Second, if some members of a
group had film badge readings and others did not--and if all members had
a common relationship with the radiological enviroment--then doses for
unbadged personnel can be calculated. Third, where sufficient badge
readings or a common relationship to the radiological environment does
not exist, dose reconstruction is performed. This involves correlating a
unit's or individual's detailed activities with the quantitively
determined radiological environment. The three approaches are described
as follows:
(1) Activities of an individual or his unit are researched for the
period of participation in an atmospheric nuclear test. Unit locations
and movements are related to areas of radiation. If personnel were far
distant from the nuclear detonation(s), did not experience fallout or
enter a fallout area, and did not come in contact with radioactive
samples or contaminated objects, they were judged to have received no
dose.
(2) Film badge data from badged personnel may be used to estimate
individual doses for unbadged personnel. First, a group of participants
must be identified that have certain common characteristics and a
similar potential for exposure to radiation. Such characteristics are:
Individuals must be doing the same kind of work, referred to as
activity, and all members of the group must have a common relationship
to the radiological environment in terms of time, location or other
factors. Identification of these groups is based upon research of
historical records, technical reports or correspondence. A military unit
may consist of several groups or several units may comprise a single
group. Using proven statistical methods, the badge data for each group
is examined to determine if it adequately reflects the entire group, is
valid for use in statistical calculations, or if the badge data indicate
the group should be sub-divided into smaller groups. For a group that
mets the tests described above, the mean dose, variance and confidence
limits are determined. An estimated dose equal to 95% probability that
the actual exposure did not exceed the estimate is assigned to unbadged
personnel. This procedure is statistically sound and will insure that
unbadged personnel are assigned doses much higher than the average/mean
for the group.
(3) Dose reconstruction is performed if film badge data are
unavailable for all or part of the period or radiation exposure, if film
badge data are partially available but cannot be used statistically for
calculations, special activities are indicated for specific individuals,
or if other types of radiation exposures are indicated. In dose
reconstruction, the conditions of exposure are reconstructed
analytically to arrive at a radiation dose. Such reconstruction is not a
new concept; it is standard scientific practice used by health
physicists when the circumstances of a radiation exposure require
investigation. The underlying method is in each case the same. The
radiation environment is characterized in time and space, as are the
activities and geometrical position of the individual. Thus, the rate at
which radiation is accrued is determined throughout the time of
exposure, from which the total dose is integrated. An uncertainty
analysis of the reconstruction provides a calculated mean dose with
confidence limits. The specific method used in a dose reconstruction
depends on what type of data are available to provide the required
characterizations as well as the nature of the radiation
[[Page 396]]
environment. The radiation environment is not limited to the gamma
radiation that would have been measured by a film badge, but also
includes neutron radiation for personnel sufficiently close to a nuclear
detonation, as well as beta and alpha radiation (internally) for
personnel whose activities indicate the possibility of inhalation or
ingestion of radioactive particles.
Sec. 218.2 General procedures.
The following procedures govern the approach taken in dose
determination:
(a) Use individual film badge data where available and complete, for
determining the external gamma dose.
(b) Identify group activities and locations for period(s) of
possible exposure.
(c) Qualitatively assess the radiation environment in order to
delineate contaminated areas. If no activities occurred in these areas,
and if no other potential for exposure exists, a no dose received
estimate is made.
(d) If partial film badge data are available, define group(s) of
personnel with common activities and relationships to radiation
environment.
(e) Using standard statistical methods, verify from the distribution
of film badge readings whether the badged sample adequately represents
the intended group.
(f) Calculate the mean external gamma dose, with variance and
confidence limits, for each unbadged population. Assign a dose equal to
95% probability that actual exposure did not exceed the assigned dose.
(g) If badge data is not available for a statistical calculation,
conduct a dose reconstruction.
(h) For dose reconstruction, define radiation environment through
use of all available scientific data, e.g., measurements of radiation
intensity, decay, radioisotopic composition.
(i) Quantitatively relate activities shielding, position, and other
factors to radiation environment as a function of time. Integrate dose
throughout period of exposure.
(j) Where possible, calculate mean dose with confidence limits;
otherwise calculate best estimate dose or, if data are too sparse, upper
limit dose.
(k) Compare calculations with available film badge records to verify
the calculated doses. Whether or not film badge data is available,
calculate initial and internal doses where identified as a meaningful
contribution to the total dose.
Sec. 218.3 Dose reconstruction methodology.
(a) Concept. The specific methodology consists of the
characterization of the radiation environments to which participants
through all relevant activities, were exposed. The environments, both
initial and residual radiation are corrected with the activities of
participants to determine accrued doses due to initial radiation,
residual radiation and/or inhaled/ingested radioactive material, as
warranted by the radiation environment and the specific personnel
activities. Due to the range of activities, times, geometries,
shielding, and weapon characteristics, as well as the normal spread in
the available data pertaining to the radiation environment, an
uncertainty analysis is performed. This analysis quantifies the
uncertainties due to time/space variations, group size, and available
data. Due to the large amounts of data, an automated (computer-assisted)
procedure is often used to facilitate the data-handling and the dose
integration, and to investigate the sensitivity to variations in the
parameters used. The results of the gamma data calculations are then
compared with film badge data as they apply to the specific period of
the film badges and to the comparable activities of the exposed
personnel, in order to validate the procedure and to identify personnel
activities that could have led to atypical doses. Radiation dose from
neutrons and dose commitments due to inhaled or ingested radioactive
material are not detected by film badges. Where required, these values
are calculated and recorded separately.
(b) Characterization of the radiological environment. (1) This step
describes and defines the radiological conditions as a function of time
for all locations of concern, that is, where personnel were positioned
or where personnel activities took place. The radiation environment is
divided into two standard categories--initial radiation and residual
radiation.
[[Page 397]]
(2) The initial radiation environment results from several types of
gamma and neutron emissions. Prompt neutron and gamma radiation are
emitted at the time of detonation, while delayed neutrons and fission-
product gamma, from the decay of radioactive products in the fireball,
continue to be emitted as the fireball rises. In contrast to these
essentially point sources of radiation, there is gamma radiation from
neutron interactions with air and soil, generated within a fraction of a
second. Because of the complexity of these radiation sources and their
varied interaction properties with air and soil, it is necessary to
obtain solutions of the Boltzmann radiation transport equation. The
radiation environment thus derived includes the effects of shot-specific
parameters such as weapon type and yield, neutron and gamma output,
source and target geometry, and atmospheric conditions. The calculated
neutron and gamma radiation environments are checked for consistency
with existing measured data as available. In those few cases displaying
significant discrepancies that cannot be resolved, an environment based
on extrapolation of the data is used if it leads to a larger calculated
dose.
(3) In determining the residual radiation environment, all possible
sources are considered including radioactive clouds, radiation that may
have been encountered from other tests, and radioactive debris that may
have been deposited in water during oceanic tests. The residual
radiation environment is divided into two general components--neutron-
activated material that subsequently emits, over a period of time, beta
and gamma radiation; and radioactive debris from the fission reaction or
from unfissioned materials that emit alpha, beta, and gamma radiation.
Because residual radiation decays, the characterization of the residual
environment is defined by the radiation intensity as a function of type
and time. Radiological survey data are used to determine specific
intensities at times of personnel exposure. Interpolation and
extrapolation are based on known decay characteristics of the individual
materials that comprise the residual contamination. In those rare cases
where insufficient radiation data exist to adequately define the
residual environment, source data are obtained from the appropriate
weapon design laboratory and applied in standard radiation transport
codes to determine the initial radiation at specific distances from the
burst. This radiation, together with material composition and
characteristics, leads to description of the neutron-activated field for
each location and time of interest. In all cases observed data, as
obtained at the time of the operation, are used to calibrate the
calculations.
(c) Activities of participants. This step uses all official records,
augmented by personnel interviews where gaps exist, to depict a scenario
of activities for each individual or definable group. When a dose
reconstruction is performed for a specific individual, information
available from the individual is accepted unless demonstrably
inaccurate. For military units, whose operations were closely controlled
and further constrained by radiological safety monitors, the scenario is
usually well defined. The same is true for observers, who were
restricted to specific locations both during and after the nuclear
burst. Ships' locations and activities are usually known with a high
degree of precision from deck logs. Aircraft tracks and altitudes are
also usually well defined. Personnel engaged in scientific experiments
often kept logs of their activities; moreover, the locations of their
experiments are usually a matter of record. Where the records are
insufficiently complete for the degree of precision required to
determine radiation exposure, participants' comments are used and
reasonable judgements are made to further the analysis. Possible
variations in the activities, as well as possible individual deviations
from group activities, with respect to both time and location, are
considered in the uncertainty analysis of the radiation dose
calculations.
(d) Calculation of dose. (1) The initial radiation doses to close-in
personnel (who were normally positioned in trenches at the time of
detonation) are calculated from the above-ground environment by
simulating the radiation transport into the trenches. Various
calculational approaches, standard in health physics, are employed to
relate
[[Page 398]]
in-trench to above-trench doses for each source of radiation. Detailed
modeling of the human body, in appropriate postures in the trench, is
performed to calculate the gamma dose that would have been recorded on a
film badge and the maximum neutron dose. The neutron, neutron-generated
gamma, and prompt gamma doses are accrued during such a short time
interval that the posture in a trench could not be altered significantly
during this exposure. The fission-product gamma dose, however, is
delivered over a period of many seconds. Therefore, the possibility of
individual reorientation (e.g., standing up) in the trench is
considered.
(2) The calculation of the dose from residual radiation follows from
the characterized radiation environment and personnel activities.
Because radiation intensities are calculated for a field (i.e., in two
spatial dimensions) and in time, the radiation intensity is determinable
for each increment of personnel activity regardless of direction or at
what time. The dose from exposure to a radiation field is obtained by
summing the contribution (product of intensity and time) to dose at each
step. The dose calculated from the radiation field does not reflect the
shielding of the film badge afforded by the human body. This shielding
has been determined for pertinent body positions by the solution of
radiation transport equations as applied to a radiation field.
Conversion factors are used to arrive at a calculated film badge dose,
which not only facilitates comparison with film badge data, but serves
as a substitute for an unavailable film badge reading.
(3) The calculation of the dose from inhaled or ingested
radioactivity primarily involves the determination of what radiosotopes
entered the body in what quantity. Published conversion factors are then
applied to these data to arrive at the radiation dose and future dose
commitments to internal organs. Inhalation or ingestion of radioactive
material is calculated from the radioactive environment and the
processes of making these materials inhalable or ingestible. Activities
and processes that cause material to become airborne (such as wind,
decontamination or traffic) are used with empirical data on particle
lofting to determine airborne concentrations under specific
circumstances. Volumetric breathing rates and durations of exposure are
used to calculate the total material intake. Data on time-dependent
weapon debris isotopic composition and the above-mentioned conversion
factors are used to calculate the dose commitment to the body and to
specific body organs.
(e) Uncertainty analysis. Because of the uncertainties associated
with the radiological data or calculations used in the absence of data,
as well as the uncertainties with respect to personnel activities,
confidence limits are determined where possible for group dose
calculations. The uncertainty analysis quantifies the errors in
available data or in the model used in the absence of data. Confidence
limits are based on the uncertainty of all relevant input parameters,
and thus vary with the quality of the input data. They also consider the
possible range of doses due to the size of the exposure group being
examined. Typical sources of error include orientation of the weapons,
specific weapon yields, instrument error, fallout intensity data,
time(s) at which data were obtained, fallout decay rate, route of
personnel movements, and arrival/stay times for specific activities.
(f) Comparison with film badge records. (1) Calculations of gamma
dose were compared with film badge records for two military units at
Operation PLUMBBOB to initially validate this methodology. Where all
parameters relating to radiation exposure were identified, direct
comparison of gamma dose calculations with actual film badge readings
was possible. Resultant correlations provided high confidence in the
methodology.
(2) Film badge data may, in some cases, be unrepresentative of the
total exposure of a given individual or group; nevertheless, they are
extremely useful for direct comparison of incremental doses for specific
periods, e.g., validating the calculations for the remaining, unbadged
period of exposure. Moreover, a wide distribution of film badge data
often leads to more definitive personnel grouping for dose calculations
[[Page 399]]
and to further investigation of the reason(s) for such distribution. In
all cases, personnel film badge data are not used in the dose
calculations, but rather are used solely for comparison with and
validation of the calculations. For dose reconstructions accomplished to
date, comparison has been favorable and within the confidence limits of
the calculations.
Sec. 218.4 Dose estimate reporting standards.
The following minimum standards for reporting dose estimates shall
be uniformly applied by the Military Services when preparing information
in response to an inquiry by the Veterans Administration, in connection
with a claim for compensation, or by a veteran or his or her
representative. The information shall include all material aspects of
the radiation environment to which the veteran was exposed and shall
include inhaled, ingested, and neutron doses, when applicable. In
determining the veteran's dose, initial neutron, initial gamma, residual
gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall
be considered. However, doses will be reported as gamma dose, neutron
dose, and internal dose. To the extent to which the information is
available, the responses will address the following questions:
(a) Can it be documented that the veteran was a test participant? If
so, what tests did he attend and what were the specifics of these tests
(date, time, yield (unless classified) type, location and other relevant
details)?
(b) What unit was the man in? What were the mission and activities
of the units at the test?
(c) To the extent to which the available records indicate, what were
his duties at the test?
(d) Can you corroborate the specific information relevant to the
potential exposure provided by the claimant to the Veterans
Administration and forwarded to the Department of Defense? What is the
impact of these specific activities on the claimant's reconstructed
dose?
(e) Is there any recorded radiation exposure for the individual?
Does this recorded exposure cover the full period of test participation?
What are the uncertainties associated with the recorded film badge dose?
(f) If recorded dosimetry data is unavailable or incomplete, what is
the dose reconstruction for the most probable dose, with error limits,
if available?
(g) Is there evidence of a neutron or internal exposure? What is the
reconstruction?
Upon request, the participant or his or her authorized representative
will be informed of the specific methodologies and assumptions employed
in estimating his or her dose.
PART 219_PROTECTION OF HUMAN SUBJECTS--Table of Contents
Sec.
219.101 To what does this policy apply?
219.102 Definitions.
219.103 Assuring compliance with this policy--research conducted or
supported by any Federal Department or Agency.
219.104-219.106 [Reserved]
219.107 IRB membership.
219.108 IRB functions and operations.
219.109 IRB review of research.
219.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in
approved research.
219.111 Criteria for IRB approval of research.
219.112 Review by institution.
219.113 Suspension or termination of IRB approval of research.
219.114 Cooperative research.
219.115 IRB records.
219.116 General requirements for informed consent.
219.117 Documentation of informed consent.
219.118 Applications and proposals lacking definite plans for
involvement of human subjects.
219.119 Research undertaken without the intention of involving human
subjects.
219.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department
or Agency.
219.121 [Reserved]
219.122 Use of Federal funds.
219.123 Early termination of research support: Evaluation of
applications and proposals.
219.124 Conditions.
Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012, 28021, June 18, 1991, unless otherwise noted.
[[Page 400]]
Sec. 219.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by federal
civilian employees or military personnel, except that each department or
agency head may adopt such procedural modifications as may be
appropriate from an administrative standpoint. It also includes research
conducted, supported, or otherwise subject to regulation by the federal
government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in Sec.
219.102(e), must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in Sec.
219.102(e) must be reviewed and approved, in compliance with Sec.
219.101, Sec. 219.102, and Sec. 219.107 through Sec. 219.117 of this
policy, by an institutional review board (IRB) that operates in
accordance with the pertinent requirements of this policy.
(b) Unless otherwise required by department or agency heads,
research activities in which the only involvement of human subjects will
be in one or more of the following categories are exempt from this
policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison among
instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and
(ii) Any disclosure of the human subjects' responses outside the
research could reasonably place the subjects at risk of criminal or
civil liability or be damaging to the subjects' financial standing,
employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or
(ii) Federal statute(s) require(s) without exception that the
confidentiality of the personally identifiable information will be
maintained throughout the research and thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs;
(ii) Procedures for obtaining benefits or services under those
programs;
(iii) Possible changes in or alternatives to those programs or
procedures; or
(iv) Possible changes in methods or levels of payment for benefits
or services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies,
(i) If wholesome foods without additives are consumed or
(ii) If a food is consumed that contains a food ingredient at or
below the level and for a use found to be safe, or agricultural chemical
or environmental contaminant at or below the level found to be safe, by
the Food and Drug Administration or approved by
[[Page 401]]
the Environmental Protection Agency or the Food Safety and Inspection
Service of the U.S. Department of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations
which may otherwise be applicable and which provide additional
protections to human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these circumstances, if a
department or agency head determines that the procedures prescribed by
the institution afford protections that are at least equivalent to those
provided in this policy, the department or agency head may approve the
substitution of the foreign procedures in lieu of the procedural
requirements provided in this policy. Except when otherwise required by
statute, Executive Order, or the department or agency head, notices of
these actions as they occur will be published in the Federal Register or
will be otherwise published as provided in department or agency
procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures.\1\
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\1\ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
[56 FR 28012, 28021, June 18, 1991, as amended at 56 FR 29756, June 28,
1991]
Sec. 219.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or
judicial or other body authorized under applicable law to consent on
behalf of a prospective subject to the subject's participation in the
procedure(s) involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which
[[Page 402]]
meet this definition constitute research for purposes of this policy,
whether or not they are conducted or supported under a program which is
considered research for other purposes. For example, some demonstration
and service programs may include research activities.
(e) Research subject to regulation, and similar terms are intended
to encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. ``Private information'' includes information
about behavior that occurs in a context in which an individual can
reasonably expect that no observation or recording is taking place, and
information which has been provided for specific purposes by an
individual and which the individual can reasonably expect will not be
made public (for example, a medical record). Private information must be
individually identifiable (i.e., the identity of the subject is or may
readily be ascertained by the investigator or associated with the
information) in order for obtaining the information to constitute
research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the
research has been reviewed and may be conducted at an institution within
the constraints set forth by the IRB and by other institutional and
federal requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
Sec. 219.103 Assuring compliance with this policy--research conducted
or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(b) Departments and agencies will conduct or support research
covered by this policy only if the institution has an assurance approved
as provided in
[[Page 403]]
this section, and only if the institution has certified to the
department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of this
policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under Sec. 219.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any employment
or other relationship between each member and the institution; for
example: full-time employee, part-time employee, member of governing
panel or board, stockholder, paid or unpaid consultant. Changes in IRB
membership shall be reported to the department or agency head, unless in
accord with Sec. 219.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership
shall be reported to the Office for Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or
[[Page 404]]
agency head may limit the period during which any particular approved
assurance or class of approved assurances shall remain effective or
otherwise condition or restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
Sec. 219.101 (b) or (i). An institution with an approved assurance
shall certify that each application or proposal for research covered by
the assurance and by Sec. 219.103 of this Policy has been reviewed and
approved by the IRB. Such certification must be submitted with the
application or proposal or by such later date as may be prescribed by
the department or agency to which the application or proposal is
submitted. Under no condition shall research covered by Sec. 219.103 of
the Policy be supported prior to receipt of the certification that the
research has been reviewed and approved by the IRB. Institutions without
an approved assurance covering the research shall certify within 30 days
after receipt of a request for such a certification from the department
or agency, that the application or proposal has been approved by the
IRB. If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under control number
9999-0020)
[56 FR 28012, 28021, June 18, 1991, as amended at 56 FR 29756, June 28,
1991]
Sec. Sec. 219.104-219.106 [Reserved]
Sec. 219.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review of research
activities commonly conducted by the institution. The IRB shall be
sufficiently qualified through the experience and expertise of its
members, and the diversity of the members, including consideration of
race, gender, and cultural backgrounds and sensitivity to such issues as
community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no
IRB consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary
concerns are in scientific areas and at least one member whose primary
concerns are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with
competence in special areas to assist in the review of issues which
require expertise beyond or in addition to that available on the IRB.
These individuals may not vote with the IRB.
Sec. 219.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
Sec. 219.103(b)(4) and, to the extent required by, Sec. 219.103(b)(5).
[[Page 405]]
(b) Except when an expedited review procedure is used (see Sec.
219.110), review proposed research at convened meetings at which a
majority of the members of the IRB are present, including at least one
member whose primary concerns are in nonscientific areas. In order for
the research to be approved, it shall receive the approval of a majority
of those members present at the meeting.
Sec. 219.109 IRB review of research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with Sec. 219.116. The IRB may
require that information, in addition to that specifically mentioned in
Sec. 219.116, be given to the subjects when in the IRB's judgment the
information would meaningfully add to the protection of the rights and
welfare of subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with Sec. 219.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it shall
include in its written notification a statement of the reasons for its
decision and give the investigator an opportunity to respond in person
or in writing.
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 219.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
(a) The Secretary, HHS, has established, and published as a Notice
in the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list will
be amended, as appropriate after consultation with other departments and
agencies, through periodic republication by the Secretary, HHS, in the
Federal Register. A copy of the list is available from the Office for
Protection from Research Risks, National Institutes of Health, HHS,
Bethesda, Maryland 20892.
(b) An IRB may use the expedited review procedure to review either
or both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in Sec. 219.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
[[Page 406]]
Sec. 219.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB
shall determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized:
(i) By using procedures which are consistent with sound research
design and which do not unnecessarily expose subjects to risk, and
(ii) Whenever appropriate, by using procedures already being
performed on the subjects for diagnostic or treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by Sec. 219.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by Sec. 219.117.
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.