[Federal Register Volume 63, Number 36 (Tuesday, February 24, 1998)]
[Rules and Regulations]
[Pages 9140-9143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4545]
[[Page 9140]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
[0720-AA35]
Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS); TRICARE Program; Nonavailability Statement Requirements
AGENCY: Office of the Secretary, DoD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises certain requirements and procedures
for the TRICARE Program, the purpose of which is to implement a
comprehensive managed health care delivery system composed of military
medical treatment facilities and CHAMPUS. Issues addressed in this rule
include priority for access to care in military treatment facilities
and requirements for payment of enrollment fees. This rule also
includes provisions revising the requirement that certain beneficiaries
obtain a non-availability statement from a military treatment facility
commander prior to receiving certain health care services from civilian
providers.
EFFECTIVE DATE: This rule is effective March 26, 1998.
ADDRESSES: Office of the Civilian Health and Medical Program of the
Uniformed Services (OCHAMPUS), Program Development Branch, Aurora, CO
80045-6900.
FOR FURTHER INFORMATION CONTACT: Steve Lillie, Office of the Assistant
Secretary of Defense (Health Affairs), telephone (703) 695-3350.
Questions regarding payment of specific claims under the CHAMPUS
allowable charge method should be addressed to the appropriate CHAMPUS
contractor.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
A. Congressional Action
Section 712 of the National Defense Authorization Act for Fiscal
Year 1996 revised 10 U.S.C. 1097(c), regarding the role of military
medical treatment facilities in managed care initiatives, including
TRICARE. Prior to the revision, section 1097(c) read in part,
``However, the Secretary may, as an incentive for enrollment, establish
reasonable preferences for services in facilities of the uniformed
services for covered beneficiaries enrolled in any program established
under, or operating in connection with, any contract under this
section.'' The Authorization Act provision replaced ``may'' with
``shall'', which has the effect of directing access priority for
TRICARE Prime enrollees over persons not enrolled.
Another statutory provision relating to access priority is 10
U.S.C. 1076(a), which establishes a special priority for survivors of
sponsors who died on active duty: they are given the same priority as
family members of active duty members. This special access priority is
not time-limited, as is the special one-year cost sharing protection
given to this category under 10 U.S.C. 1079.
The National Defense Authorization Act of FY 1997, section 734
amended 10 U.S.C. 1080 to establish certain exceptions to requirements
for nonavailability statements in connection with payment of claims for
civilian health care services. First, the Act eliminates authority for
nonavailability statements for outpatient services; NASs have been
required for a limited number of outpatient procedures over the past
several years. Second, the Act eliminates authority for NAS
requirements for enrollees in managed care plans, which has the effect
of eliminating NAS requirements for TRICARE Prime enrollees. Finally,
the Act gives the Secretary authority to waive NAS requirements based
on an evaluation of the effectiveness of NAS in optimizing use of
military facilities.
The National Defense Authorization Act of FY 1996, section 713
requires that enrollees in TRICARE Prime be permitted to pay applicable
enrollment fees on a quarterly basis, and prohibits imposition of an
administrative fee related to the quarterly payment option.
B. Public Comments
The proposed rule was published in the Federal Register on April 7,
1997 (62 FR 16510). We received no public comments.
II. Provisions of the Rule
A. Access Priority (Revisions to Sec. 199.17(d)).
1. Provisions of the Proposed Rule
This paragraph explains that in Regions where TRICARE is
implemented, the order of access priority for services in military
treatment facilities is as follows: (1) Active duty service members;
(2) family members of active duty service members enrolled in TRICARE
Prime; (3) retirees, their family members and survivors enrolled in
TRICARE Prime; (4) family members of active duty service members who
are not enrolled in TRICARE Prime; and (5) all others based on current
access priorities. For purposes of access priority, but not for cost
sharing, survivors of sponsors who died on active duty are to be given
the same priority as family members of active duty service members.
This means that if they are enrolled in TRICARE Prime, they have the
same access priority as family members of active duty service members
who are enrolled in TRICARE Prime, or if not enrolled in TRICARE Prime,
they have the same access priority for military treatment facility care
as family members of active duty service members who are not enrolled
in TRICARE Prime.
The proposed rule also includes a provision explaining that
enrollment status does not affect access priority for some groups and
circumstances. This provision would allow the commander of a military
medical treatment facility to designate for access priority certain
individuals, for specific episodes of health care treatment. Such
individuals may include Secretarial designees, active duty family
members from outside the MTF's service area, foreign military and their
family members authorized care through international agreements, DoD
civilians with authorizing conditions, individuals on the Temporary
Disability Retired List, and Reserve and National Guard members.
Additional exceptions may be granted for other categories of
individuals, eligible for treatment in the MTF, whose access to care is
needed to provide a clinical case mix to support graduate medical
education programs, upon approval by the Assistant Secretary of Defense
(Health Affairs).
2. Provisions of the Final Rule
The final rule is consistent with the proposed rule. Minor
revisions emphasize that survivors of sponsors who died on active duty
have the same access priority as active duty family members. Access
priority for TRICARE Prime enrollees is not limited to military
facilities near their residence, but includes access priority when they
are traveling (although they are still required to access nonemergency
care through their primary care manager, pursuant to Sec. 199.17(o)).
B. Enrollment Fees (Revisions to Secs. 199.17(o) and 199.18(c))
1. Provisions of the Proposed Rule
These revisions would eliminate the requirement for a TRICARE Prime
enrollee to pay an additional maintenance fee of $5.00 per installment
for those TRICARE Prime enrollees who elect to pay their annual
enrollment fee on a quarterly basis. Additionally, these revisions
would permit waiver of enrollment fee
[[Page 9141]]
collection for retirees, their family members, and survivors who are
eligible for Medicare on the basis of disability. This group is
eligible for TRICARE/CHAMPUS as a secondary payor if they are enrolled
in Part B of Medicare, and pay the applicable monthly premium.
2. Provisions of the Final Rule
The final rule is consistent with the proposed rule.
C. Nonavailability Statements (Revisions to Sec. 199.4(a))
1. Provisions of the Proposed Rule
Revisions of this section modify our existing requirements for
beneficiaries to obtain nonavailability statements (NASs). The
requirement for beneficiaries to obtain an NAS for selected outpatient
procedures is eliminated. Beneficiaries who choose to obtain outpatient
care, including ambulatory surgery, from civilian sources remain
subject to current TRICARE/CHAMPUS cost sharing rules, but the
requirement that the beneficiary obtain an NAS prior to TRICARE/CHAMPUS
sharing in the civilian health care costs has been removed.
The requirement for beneficiaries enrolled in TRICARE Prime to
obtain an NAS for inpatient care is also eliminated. TRICARE was
designed so that the military treatment facility is the first source of
specialty care, with TRICARE Prime enrollees having access priority
before non-enrolled beneficiaries. In general, TRICARE Prime enrollees
obtain care from civilian network providers only when the military
treatment facility cannot provide the care because it does not have the
capability, or because the enrollee cannot be seen within time frames
required by TRICARE Prime access standards. Since the Health Care
Finder must authorize all non-emergency specialty care obtained from
civilian sources, the NAS requirement for this category of beneficiary
is redundant.
Lastly, the revisions would eliminate the requirement that a non-
enrolled beneficiary must obtain an NAS for inpatient hospital
maternity care before TRICARE/CHAMPUS shares in any costs for related
outpatient maternity care. Some diagnostic tests, procedures, or
consultations from civilian sources may be required during a course of
maternity care and this allows TRICARE/CHAMPUS to share in the costs of
the civilian care without requiring the beneficiary to obtain all
maternity related care in a civilian setting.
3. Provisions of the Final Rule
The final rule is consistent with the proposed rule. It should be
noted that requirements of Sec. 199.15 related to preauthorization of
services continue to apply. A key difference is that the responsibility
for compliance, and penalties for noncompliance with the requirements
of Sec. 199.15 fall on providers of care rather than on beneficiaries.
D. Revisions to the Uniform HMO Benefit (Revisions to Sec. 199.18(d))
1. Provisions of the Proposed Rule
We are contemplating minor changes in the copayment structure of
the Uniform HMO Benefit, which is used in TRICARE Prime. The proposed
rule included two revisions, which would eliminate copayments for
preventive services and for ancillary services. Current provisions
include copayments for ancillary services unless they are provided as
part of an office visit. This has resulted in multiple copayments in
cases where beneficiaries are sent to multiple sites for diagnostic
testing pursuant to a visit, which we regard as unfair.
2. Provisions of the Final Rule
The final rule is consistent with the proposed rule.
E. TRICARE Prime Catastrophic Cap (Revisions to Sec. 199.18(f))
1. Provisions of the Proposed Rule
The proposed rule included a provision regarding the
inapplicability of the TRICARE Prime annual catastrophic cap to out-of-
pocket costs incurred under the TRICARE Prime point-of-service option.
This is at Sec. 199.18(f)(2).
2. Provisions of the Final Rule
The final rule is consistent with the proposed rule.
F. Preemption of State Laws (Revisions to Sec. 199.17(a))
1. Provisions of the Proposed Rule
The proposed rule contained a restatement of current policy, at
Sec. 199.17(a)(7), recording DoD interpretation of two statutory
provisions preempting State and local laws in connection with TRICARE
contracts.
2. Provisions of the Final Rule
The final rule is similar to the proposed rule. The provision has
been expanded to also record DoD's interpretation of these statutes in
relation to State or local laws imposing premium taxes on health
insurance carriers or health maintenance organizations.
III. Regulatory Procedures
Executive Order 12866 requires certain regulatory assessments for
any ``significant regulatory action,'' defined as one which would
result in an annual effect on the economy of $100 million or more, or
have other substantial impacts.
The Regulatory Flexibility Act (RFA) requires that each Federal
agency prepare, and make available for public comment, a regulatory
flexibility analysis when the agency issues a regulation which would
have a significant impact on a substantial number of small entities.
This is not a significant regulatory action under the provisions of
Executive Order 12866, and it would not have a significant impact on a
substantial number of small entities.
This rule will impose no additional information collection
requirements on the public under the Paperwork Reduction Act of 1985
(44 U.S.C. Chapter 55).
List of Subjects in 32 CFR Part 199
Claims, Handicapped, Health insurance, and Military personnel.
Accordingly, 32 CFR part 199 is amended as follows:
PART 199--[AMENDED]
1. The authority citation for part 199 continues to read as
follows:
Authority: 5 U.S.C. 301; 10 U.S.C. Chapter 55.
2. Section 199.2(b) is amended by revising the definition of
nonavailability statement to read as follows:
Sec. 199.2 Definitions.
* * * * *
(b) * * *
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.
* * * * *
3. Section 199.4 is amended by removing paragraphs (a)(9)(i)(C) and
(a)(9)(v)(B) and the note following paragraph (a)(9)(vi), by
redesignating paragraph (a)(9)(i)(D) as paragraph (a)(9)(i)(C) and
paragraph (a)(9)(v)(A) as paragraph (a)(9)(v), and by revising
[[Page 9142]]
paragraphs (a)(9) introductory text, (a)(9)(i)(B), and (a)(9)(ii) and
by adding new paragraph (a)(10)(vi)(E) to read as follows:
Sec. 199.4 Basic program benefits.
* * * * *
(a) * * *
(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 medical care can be provided through a Uniformed Services
facility. If the required care cannot be provided, the hospital
commander, or designee, will issue a Nonavailability Statement (DD form
1251). Except for emergencies, a Nonavailability Statement should be
issued before medical care is obtained from a civilian source. Failure
to secure such a statement may waive the beneficiary's rights to
benefits under CHAMPUS.
(i) * * *
(B) For CHAMPUS beneficiaries who are not enrolled in TRICARE
Prime, an NAS is required for services in connection with nonemergency
inpatient hospital care if such services are available at a facility of
the Uniformed Services located within a 40 mile radius of the residence
of the beneficiary, except that an NAS is not required for services
otherwise available at a facility of the Uniformed Services located
within a 40-mile radius of the beneficiary's residence when another
insurance plan or program provides the beneficiary 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.
* * * * *
(10) * * *
(vi) * * *
(E) The beneficiary is enrolled in TRICARE Prime.
* * * * *
3. Section 199.17 is amended by adding paragraph (a)(7) and
revising paragraphs (d)(1) and (o)(3) to read as follows:
Sec. 199.17 TRICARE program.
* * * * *
(a) * * *
(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).
* * * * *
(d) * * *
(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
[[Page 9143]]
readiness-related medical skills sustainment activities, to the extent
approved by the ASD(HA).
* * * * *
(o) * * *
(3) Quarterly installment payments of enrollment fee. The
enrollment fee required by Sec. 199.18(c) may be paid in quarterly
installments, each equal to one-fourth of the total amount. For any
beneficiary paying his or her enrollment fee in quarterly installments,
failure to make a required installment payment on a timely basis
(including a grace period, as determined by the Director, OCHAMPUS)
will result in termination of the beneficiary's enrollment in Prime and
disqualification from future enrollment in Prime for a period of one
year. If enrollment in TRICARE Prime is terminated for failure to make
a required installment payment, services received after the due date of
the installment payment will be cost shared under TRICARE Extra.
* * * * *
4. Section 199.18 is amended by revising paragraphs (d)(2)(i) and
(f), and by adding paragraph (c)(3), to read as follows:
Sec. 199.18 Uniform HMO benefit.
* * * * *
(c) * * *
(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 beneficiaries described
in 10 U.S.C. 1086(d)(2) (i.e., those who are eligible for Medicare on
the basis of disability or end stage renal disease and who maintain
enrollment in Part B of Medicare).
* * * * *
(d) * * *
(2) * * *
(i) For most physician office visits and other routine services,
there is a per visit fee for each of the following groups: dependents
of active duty members in pay grades E-1 through E-4; dependents of
active duty members in pay grades of E-5 and above; and 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).
* * * * *
(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.
* * * * *
Dated: February 17, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-4545 Filed 2-23-98; 8:45 am]
BILLING CODE 5000-04-M