[Federal Register Volume 64, Number 226 (Wednesday, November 24, 1999)]
[Proposed Rules]
[Pages 66126-66139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30072]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DoD 6010.8-R]


Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS); TRICARE Family Member Dental Plan

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule revises the comprehensive CHAMPUS 
regulation pertaining to the Expanded Active Duty Dependents Benefit 
Plan. The new plan, and this proposed rule: places the responsibility 
for TRICARE Family Member Dental Plan (TFMDP) enrollment and a large 
portion of the appeals program on the dental plan contractor; allows 
the dental plan contractor to bill eligible dependents for plan 
premiums in certain circumstances; reduces the enrollment period from 
24 to 12 months; excludes Reserve component members ordered to active 
duty in support of a contingency operation from the mandatory 12 month 
enrollment; simplifies enrollment types and exceptions; reduces cost-
shares for certain enlisted grades; adds anesthesia as a covered 
benefit; incorporates legislative authority for calculating the method 
by which premiums may be raised and allowing premium reductions for 
certain enlisted grades; and reduces administrative burden by reducing 
redundant language, referencing language appearing in other CFR 
sections and removing language more appropriate to the actual contract. 
These improvements will provide Uniformed Service families with 
numerous quality of life benefits that will improve participation in 
the plan, significantly reduce enrollment errors and positively effect 
utilization of this important dental plan.

DATES: Comments must be received by December 27, 1999.

ADDRESSES: Address all comments concerning this proposed rule to 
TRICARE Management Activity/Special Contract Operations Branch, 16401 
East Centretech Parkway, Aurora, CO 80011-9043.

FOR FURTHER INFORMATION CONTACT: Lt Col Brian W. Grassi, 303-676-3496.

SUPPLEMENTARY INFORMATION: 

I. Background and Legislative Changes

    The Basic Active Duty Dependents Dental Benefit Plan was 
implemented on August 1, 1987, allowing military personnel to 
voluntarily enroll their dependents in a basic dental health care plan. 
Under this plan, DoD shared the cost of the premium with the active 
duty service member. Although the plan was viewed as a major step in 
benefit enhancement for military families, there were still complaints 
that the enabling legislation was too restrictive in scope and that 
there should be expansion of services to better meet the dental needs 
of the Uniformed Service family.
    Congress responded to these concerns by authorizing the Secretary 
of Defense to develop and implement an Expanded Active Duty Dependents 
Dental Benefit Plan (the Defense Authorization Act, Public Law 102-484, 
sec. 701). The provisions of this Act specified the expended benefit 
structure, as well as maximum monthly premiums for enrollees. Cost-
sharing levels for the expanded benefits were left up to the discretion 
of the Secretary of Defense after consultation with the other 
Administering Secretaries. The provisions of this Act were implemented 
on April 1, 1993.

[[Page 66127]]

    Thereafter, Congress granted legislative authority to allow the 
Secretary of Defense to expand the dental plan outside the United 
States and to provide one year of continued dental coverage for 
enrolled beneficiaries to service members who die while on active duty 
(The Defense Authorization Act, Public Law 103-337, sec. 703). In 
addition, the Congress granted subsequent legislative authority to 
allow the Secretary of Defense to waive or reduce the cost-shares in 
overseas locations (The Defense Authorization Act, Public Law 105-85, 
sec. 732).
    In Fiscal Year 1999, the Congress authorized a methodology by which 
the enrollee's share of the premium could be increased. This 
methodology is tied to the lesser of the percent increase in the basic 
pay of active duty service members or the basic pay for statutory pay 
systems plus one-half percent. In authorizing language, the Secretary 
of Defense could apply this premium increase methodology as if it had 
been in place continuously since December 31, 1993. To allow for an 
expanded and more comprehensive benefit, the Department will apply this 
premium increase methodology as authorized. The language further 
instructed the Secretary of Defense to advise the Congress of any plans 
to reduce dental plan benefits and to wait one year, after 
notification, before any benefits could be reduced (The Defense 
Authorization Act, Public Law 105-261, sec. 701).
    The legislative provisions have been codified in 10 U.S.C. Chapter 
55, sec. 1076a, Dependents Dental Program, and are reflected in the 
regulatory provisions of this rule.

II. Programmatic Improvements

    The below programmatic improvements will be effective once the 
follow-on TFMDP contract has been awarded and the performance period 
has begun. At the present time, the performance period is expected to 
begin on February 1, 2001.

A. Contractor Enrollment

    Since the plan began, the Uniformed Services have administered the 
dental plan enrollment, disenrollment and eligibility determination 
functions. The complexities of the dental plan combined with a high 
turnover rate of relatively inexperienced Service personnel and other 
competing responsibilities, separate Service procedures, databases and 
data transfer processes, high cost and lengthy delays in software 
modifications, and Uniformed Service personnel downsizing, created the 
need for a centralized and uniform enrollment process. This can be best 
achieved by an experienced dental plan contractor and will allow active 
duty service members to contact one organization to enroll, disenroll, 
re-enroll and discuss other TFMDP benefit and claims adjudication 
issues. By allowing the contractor to administer the enrollment 
function across all of the Uniformed Services, enrollment becomes 
portable whereas the current system does not allow an active duty 
member from one Service to enroll through a separate Service. 
Contractor enrollment will also simplify the payroll deduction and 
eligibility determination process and reduce the possibility of waste 
and abuse at the local level. In addition, it maintains a stable, 
trained work force at the front end of the TFMDP and greatly improves 
customer service.
    An added benefit to contractor enrollment will be the elimination 
of the current required Uniformed Service enrollment forms. The complex 
DD Form 2494, Active Duty Dependent Dental Plan Enrollment Form, and 
the DD Form 2494-1, Supplemental Active Duty Dependent Dental Plan 
Enrollment Form, will no longer be needed and will be replaced by a 
standard, simplified contractor enrollment form as well as telephonic 
and fax enrollment options.
    Contractor enrollment has proven to be a success with the TRICARE 
Managed Care Support contractors as well as with contracted enrollment 
via the TRICARE Selected Reserve Dental Program and the Tricare Retiree 
Dental Program. The Uniformed Services will continue, as with the 
former dental plan and current TRICARE/CHAMPUS programs, to determine 
eligibility for the dental plan and process any changes regarding 
eligibility through the Defense Enrollment Eligibility Reporting System 
(DEERS).

B. Contractor Direct Billing

    The dental plan is financed through premiums jointly paid by the 
Government and the active duty service member. The active duty service 
member's share of the premiums is deducted from their payroll accounts. 
In certain situations, otherwise eligible dependents are precluded from 
enrolling in the dental plan if their sponsor does not have an active 
payroll account nor has insufficient funds in that account. These 
eligible dependents include dependents of incarcerated sponsors and 
survivors. By allowing the contractor to directly bill these dependents 
for their premium share, dependents previously excluded from enrollment 
can now receive coverage. This improvement eliminates a previous 
enrollment termination provision in the regulation where eligibility 
for basic pay was a deciding criterion for continued enrollment in the 
dental plan.

C. Reduction in Mandatory Enrollment Period

    A mandatory enrollment period is an essential factor behind 
Government and contractor actuarial estimates in developing the TFMDP 
premium and provides a guarantee to the contracting community that they 
will collect a certain amount of premiums for the potential benefit 
payout. The proposed regulation reduces the previous longstanding 24-
month mandatory enrollment period to 12 months since this 24-month 
period precluded numerous, otherwise eligible, dependents from 
enrolling in the dental plan. These eligible dependents include those 
that are near the end of their active service and have new eligible 
dependents, enlisted service members who are outside of their re-
enlistment window of opportunity, and Reserve/Guard personnel called to 
active duty for less than 24 months (such as Reserve/Guard personnel on 
active duty for training and special assignments). Reduction to a 12-
month enrollment period for the TFMDP has a precedent with other 
TRICARE plans, to include the TRICARE Managed Care Prime option and the 
Tricare Selected Reserve Dental Program. By introducing this more 
liberal enrollment period, the proposed regulation also calls for a 12-
month ``lock-out'' if the active duty service member disenrolls before 
completing the 12-month enrollment period or if the active duty service 
member fails to pay their premiums. A 12-month lock-out period also 
applies to a Reserve component member who disenrolls before completing 
the special mandatory enrollment period for Reserve component members 
ordered to active duty in support of a contingency operation. This 
``lock-out'' period has a precedent with other commercial dental 
insurance plans as well as the TRICARE Managed Care Prime option, the 
TRICARE Selected Reserve Dental Program and the TRICARE Retiree Dental 
Program. ``Lock-out'' periods also discourage potential beneficiaries 
from enrolling in an insurance plan, receiving all of their benefit in 
a few months and then disenrolling without paying a full 12 months' 
worth of premiums.
    Beneficiaries enrolled in the current dental plan at the time when 
TFMDP coverage begins must complete their two (2) year enrollment 
period established under that superceded plan except if one of the 
conditions for valid disenrollment applies. Once this

[[Page 66128]]

original two (2) year enrollment period is met, the active duty member 
may continue TFMDP 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 re-enroll in the TFMDP at a later date.

D. Enrollment Period for Certain Reserve Component Sponsors

    The proposed regulation provides that the 12-month enrollment 
period shall not apply to eligible dependents of Reserve component 
sponsors ordered to active duty for more than 30 days but less than 12 
months (other than for training) in support of a contingency operation 
as defined in 10 U.S.C. sec. 101(a)(13). Orders may be issued under 
statutory authorities for recalling Reserve component members to active 
duty, but must specify that the member is serving in support of a 
specific contingency operation under the statutory definition. This 
disparate treatment for certain Reserve component members is necessary 
because of the involuntary nature of their call to active duty and 
statutory limitations on their periods of active duty.
    By contrast, active duty members are enlisted, reenlisted or 
commissioned for periods of active duty longer than one year. The 
active duty member has the option to enroll eligible dependents at any 
time during that period of active duty prior to the last 12 months of 
service, and at a relatively constant premium cost. Similarly, other 
Reserve component members generally volunteer for call to active duty 
and serve for at least one year; therefore they will have the option to 
enroll family members at any time other than in the last 12 months of 
that service.
    However Reserve component members ordered to active duty in support 
of a contingency operation are normally limited by statute to a period 
of active duty of 9 months or less. While 38 U.S.C. Chapter 43 provides 
that a Reserve component member who has coverage under a civilian 
employer sponsored dental program may elect to continue that coverage 
during a period of active duty, for up to 18 months; if serving for 
more than 30 days, the member may be required to pay the full premium 
cost with employer cost-sharing no longer required. Upon release from 
active duty, 38 U.S.C. Chapter 43, provides that the Reserve component 
member may be reinstated in his or her civilian employer sponsored 
program without a waiting period. Without an exception to the mandatory 
12 month enrollment period for TFMDP, members who cannot afford to pay 
the full premium for continuing their civilian plan would be unable to 
provide dental insurance coverage for their family members while on 
active duty. This exclusion to the 12-month enrollment period is 
therefore necessary to preclude such prejudicial treatment of Reserve 
component members ordered to active duty for less than 12 months to 
support a contingency operation. In its place, a separate enrollment 
period is created for the Reserve component member.

E. Reduction in Cost-Shares for Certain Enlisted Pay Grades

    Although certain cost-shares are mandated by law, the Secretary of 
Defense has the prerogative to adjust cost-shares for certain types of 
dental procedures. Available data shows that our lower-paid enlisted 
families are reluctant to pursue specialized dental care because of the 
amount of their cost-share. To allow greater participation and dental 
benefit utilization among our younger enlisted families, this proposed 
regulation would have a two-tiered maximum cost-share dependent on the 
active duty service member's pay grade. With the rates below, this 
reduction for enlisted service members does not have a measurable 
effect on the overall premium.

                              [In percent]
------------------------------------------------------------------------
                                          Cost-share for
                                           pay grades E-  Cost-share for
            Covered services                1, E-2, E-3    all 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,                 20              20
 resins, stainless steel crowns)........
Endodontic..............................              30              40
Periodontic.............................              30              40
Oral and Maxillofacial Surgery..........              30              40
General Anesthesia......................              40              40
Intravenous Sedation....................              50              50
Other Restorative (example: crowns,                   50              50
 onlays, casts).........................
Prosthodontic...........................              50              50
Medications.............................              50              50
Orthodontic.............................              50              50
Miscellaneous Services..................              50              50
------------------------------------------------------------------------

    A reduction in cost shares has been chosen over a reduction in 
premium rates for enlisted service members in these pay grades because 
the premium rates have traditionally been affordable as compared to 
similar dental benefits programs administered by commercial dental 
insurance plans and given the fact that the Government pays 60 percent 
of the total premium. As such, the greatest effect on participation and 
utilization can best be achieved through a reduction in cost-shares.

F. Simplification on Enrollment Options

    Under the proposed rule, TFMDP enrollment options have been 
simplified to assist the beneficiary, Government, provider of care and 
the dental plan contractor. Under the prior dental plan, dependents 
were asked to choose from several different enrollment options

[[Page 66129]]

depending on whether they had children under the age of 4. With the 
advances in pediatric dentistry (pedodontics), dental care for children 
between the ages of 1 and 4 is highly recommended. As such, the dental 
plan contractor will offer sponsors the opportunity to enroll these 
particular dependents when eligibility information indicates a 
dependent is 1 year of age or older. Although there will continue to be 
two separate premiums, a ``single'' premium for one covered life and a 
``family'' premium for more than one covered life, providing additional 
exceptions to this rule based on age will advance pediatric care among 
our beneficiary population, simplify enrollment processing by the 
dental plan contractor and promote greater understanding of enrollment 
options by all parties.

G. Addition of Anesthesia Services

    Local anesthesia, in conjunction with other covered dental 
procedures, is considered integral to the procedure itself and has been 
covered for several years. Other anesthesia services were historically 
excluded due to their high cost. The proposed regulation allows the 
Department to add other types of anesthesia services to the TFMDP 
benefit package.

H. Appeals Plan

    Under the TFMDP, the Department wishes to procure a responsive, 
simple, and two (or greater) tiered appeals program within the dental 
plan contractor's operation. We have had similar success with this 
approach under the TRICARE Selected Reserve Dental Program and the 
TRICARE Retiree Dental Program, where the contractors administer the 
first two levels of the appeals program, which are termed the initial 
determination and the reconsideration. Under the TFMDP, the appealing 
parties would appeal adverse decisions through the contractor's 
established appeal process where separate parties would perform the 
initial determination and reconsideration reviews (whether internal or 
external to the organization). the final level of review would be, as 
before, to the Department, subscribing to guidelines under the Formal 
Review and Hearing procedures listed in 32 CFR 199.10.

I. Plan Transition

    The programmatic improvements are scheduled to take effect when the 
follow-on TFMDP contract to the current Expanded Active Duty Dependents 
Dental Plan contract is awarded and the performance period begins. 
Considering the magnitude of the planned improvements, the Department 
plans to ``phase-out'' operations under the former contractor and 
method of operation to accommodate late claims processing and to allow 
the Uniformed Services time to process retroactive enrollment and 
coverage information to assist our beneficiaries. This ``phase-out'' 
schedule will be jointly determined between the Department and the 
outgoing and incoming dental plan contractors.

III. Administrative Changes

    The proposed regulation incorporates several administrative 
changes. There is revised language on Federal preemption of State and 
local laws that conforms the dental regulation language to reflect the 
Department's previous exercise of statutory authority in this area. 
Other changes include: widespread publication of premium rates; 
allowing the Department to modify the benefit package based on 
developments in common dental care practices and standard dental 
insurance plans; permitting the dental plan contractor to pay ``by 
report'' procedures by providing an additional allowance to the primary 
covered procedure; removing detailed descriptions of types of 
authorized providers in favor of more general language; updating dental 
terminology to be consistent with the American Dental Association's 
Council on Dental Care Program's Code on Dental Procedures and 
Nomenclature; and, reorganizing and adding language on the maximum 
amount payable by the TFMDP.
    The proposed regulation incorporates plan name and other changes to 
reflect current terminology, such as outdated references to the former 
TRICARE Management Activity address, ``Active Duty Dependent Dental 
Plan'' and superceded regulations. It also reduces redundant language 
and reduces the overall size of the regulation through cross-references 
to applicable language appearing in other CFR sections. This includes 
references to appeals, fraud and abuse, eligibility, and adjunctive 
dental care as well as information on the former dental plans. Items 
that are more appropriate for inclusion in the actual contract 
statement of work have also been removed and transferred to that 
document. This includes equality of benefit processing, coordination of 
benefits, participating provider lists, Government review of billing 
practices, and how a Dental Explanation of Benefits should be 
structured. Finally, the regulation has been reorganized for better 
flow, ease of reading and understanding.

IV. Costs

    The changes in the proposed regulation coincide with the upcoming 
recompetition of the TFMDP contract. As such, the Department plans to 
include these requirements in the request for proposal. By relaxing or 
eliminating some current contractual requirements and adding a greater 
number of eligible dependents, we anticipate that costs for the 
programmatic improvements can be met through contractor internal 
efficiencies and the competitive nature of the bid process and will 
result in affordable premiums comparable to what dental plan enrollees 
presently pay.

V. Regulatory Procedures

    Executive Order 12866 requires certain regulatory assessments for 
any ``significant regulatory action'' defined as one that 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 proposed rule is not a significant regulatory action under 
Executive Order 12866. The changes set forth in this proposed rule are 
minor revisions to the existing regulation. Since this proposed rule 
does not impose information collection requirements, it does not need 
to be reviewed by the Executive Office of Management and Budget under 
authority of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 
35).

List of Subjects in 32 CFR Part 199

    Administrative practice and procedure, Claims, Dental health, 
Fraud, Health care, Health insurance, Individuals with disabilities, 
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 199.13 is revised to read as follows:

[[Page 66130]]

Sec. 199.13   TRICARE Family Member Dental Plan.

    (a) General provisions--(1) Purpose. This section prescribes 
guidelines and policies for the delivery and administration of the 
TRICARE Family Member Dental Plan (TFMDP) of the Uniformed Service 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 Commissioned Corps of the National Oceanic and Atmospheric 
Administration (NOAA). The TFMDP 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 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 TFMDP is authorized by 10 U.S.C. 1076a, Dependents' Dental Program, 
and this section was previously titled the ``Active Duty Dependents 
Dental Plan''.
    (2) Applicability--(i) Geographic scope. (A) The TFMDP is 
applicable geographically within the 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 TFMDP 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 TFMDP to areas other than those areas specified in paragraph 
(a)(2)(i)(A) of this section for the eligible dependents of active duty 
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 TFMDP 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 TFMDP. 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. Other difference 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 this paragraph (a)(2)(i)(B). 
Beneficiaries will be eligible for the same TFMDP 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, beneficiaries enrolled in the TFMDP may not obtain those 
services that are benefits of the TFMDP in military dental care 
facilities, as long as those covered benefits are available for cost-
sharing under the TFMDP. Enrolled beneficiaries 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 authorizes 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 TFMDP.
    (B) Administration. 10 U.S.C. 1073 authorizes the Secretary of 
Defense to administer the TFMDP for the Army, Navy, Air Force, and 
Marine Corps under DoD jurisdiction, the Secretary of Transportation to 
administer the TFMDP 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 TFMDP for the Commissioned Corps of 
the NOAA and the USPHS.
    (ii) Organizational delegations and assignments--(A) Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of 
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to 
provide policy guidance, management control, and coordination as 
required for all DoD health and medical resources and functional areas 
including health benefit programs. Implementing authority is contained 
in 32 CFR part 367. For additional implementing authority see 
Sec. 199.1. Any guidelines or policy necessary for implementation of 
this Sec. 199.13 shall be issued by the Director, OCHAMPUS.
    (B) Evidence of eligibility. DoD, through the Defense Enrollment 
Eligibility Reporting System (DEERS), is responsible for establishing 
and maintaining a listing of persons eligible to receive benefits under 
the TFMDP.
    (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 military families 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 TFMDP 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 TFMDP 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,

[[Page 66131]]

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 TFMDP 
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 enrolled beneficiaries.
    (ii) Disposition of funds. TFMDP funds are paid by the Government 
(or in the case of direct billing, by the beneficiary) as premiums to 
an insurer, service, or prepaid dental care organization under a 
contract negotiated by the Director, OCHAMPUS, or a designee, under the 
provisions of the Federal Acquisition Regulation (FAR) (48 CFR chapter 
1).
    (iii) Plan. The Director, OCHAMPUS, or designee provides an 
insurance policy, service plan, or prepaid contract of benefits in 
accordance with those prescribed by law and regulation; as interpreted 
and adjudicated in accord with the policy, service plan, or contract 
and a dental benefits brochure; and as prescribed by requirements of 
the dental plan contractor's contract with the Government.
    (iv) Contracting out. The method of delivery of the TFMDP 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 TFMPD. 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 TFMPD's policies and procedures and has no 
authority to make benefit determinations or obligate the TFMPD'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 TFMDP. 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 service 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 record which is 
compatible with the purpose for which it was collected. This includes a 
standard and acceptable business practice commonly used among dental 
insurers which is consistent with the principle of preserving 
confidentiality of personal information and detailed clinical data. For 
example, the release of utilization information for the purpose of 
determining eligibility for certain services, such as the number of 
dental prophylaxis procedures performed for a beneficiary, is 
authorized;
    (v) Disclosure is pursuant to an order form 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 TFMDP 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 199.2. The following definitions apply only 
to his 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 service member for any 
remaining amount of the fees for services which exceeds the prevailing 
fee allowance of the insurer.
    (2) Authoried provider. A dentist, dental hygienist, or certified 
and licensed anesthetist specifically authorized to provide benefits 
under the TFMPD in paragraph (f) of this section.

[[Page 66132]]

    (3) Beneficiary. A dependent of an active duty member who has been 
enrolled in the TFMDP, 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 TFMDP, 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 
TFMDP, 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 service 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 phases:
    (i) Enrolling all active duty 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 TFMDP.
    (9) Dental hygienist. Practitioner in rendering complete oral 
prophylaxis services, applying medication, performing dental 
radiography, and providing dental education services with a 
certificate, associate degree, or bachelor's degree in the field, and 
licensed by an appropriate authority.
    (10) Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of 
Dental Surgery (D.D.S.) who is licensed to practice dentistry by an 
appropriate authority.
    (11) Diagnostic services. Category of dental services including:
    (i) Clinical oral examinations;
    (ii) Radiographic examinations; and
    (iii) Diagnostic laboratory tests and examinations provided in 
connection with other dental procedures authorized as benefits of the 
TFMDP and further defined in paragraph (e) of this 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 TFMDP 
claim, a request for TFMDP 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 TFMFDP. 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 TFMDP benefits are 
not initial determinations.
    (14) Nonparticipating provider. A dentist or dental hygienist that 
furnished dental services to a TFMDP 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 
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 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 member) of any cost-share for covered 
services.
    (18) Party to the initial determination. Includes the TFMDP, a 
beneficiary of the TFMDP 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 
TFMDP provider is a party to that initial determination, as is a 
provider who is suspended, excluded or terminated as an authorized 
provider, unless the provider is excluded under another federal or 
federally funded program.
    (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.
    (21) Prosthodontics. The diagnosis, planning, making, insertion, 
adjustment, relinement, 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 or dental hygienist 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.

[[Page 66133]]

    (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) and 1072(6) set forth those persons who are 
eligible for voluntary enrollment in the TFMDP. 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) Person eligible (dependent). 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 of less):
    (A) Spouse. A lawful husband or wife, regardless of whether or not 
dependent upon the active duty member.
    (B) Child. To be eligible, the child must be unmarried and meet the 
requirements set forth in Sec. 199.3(b)(2)(iv)(A) and 
Sec. 199.3(b)(2)(iv)(C).
    (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 
TFMDP is the responsibility of the active duty 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 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 Services 
identification cards do not distinguish eligibility for the TFMDP. 
Procedures for the determination of eligibility are identified in 
Sec. 199.3(f)(2), except that Uniformed Services identification cards 
do not provide evidence of eligibility for the TFMDP. Although OCHAMPUS 
and the dental plan contractor must make determinations concerning a 
dependent's eligibility in order to ensure proper enrollment and proper 
disbursement of appropriated funds, ultimate responsibility for 
resolving a dependent's eligibility rests with the Uniformed Services.
    (C) Evidence of eligibility required. Eligibility and enrollment in 
the TFMDP will be verified through the DEERS. Eligibility and 
enrollment information established and maintained in the DEERS file is 
the only acceptable evidence of TFMDP eligibility and enrollment. It is 
the responsibility of the active duty member or TFMDP beneficiary, 
parent, or legal representative, when appropriate, to provide adequate 
evidence for entry into the DEERS file to establish eligibility for the 
TFMDP, and to ensure that all changes in status that may effect 
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--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 was effective from 
August 1, 1993, up to the date of implementation of the TFMDP. The 
Expanded Active Duty Dependents Dental Benefit Plan terminates upon 
implementation of the TFMDP.
    (ii) TRICARE Family Member Dental Plan (TFMDP)--(A) Election of 
coverage. (1) Except as provided in paragraph (c)(3)(ii)(A) (2) of this 
section, active duty members may voluntarily elect to enroll their 
eligible dependents following implementation of the TFMDP. In order to 
obtain TFMDP coverage, written or telephonic election by the active 
duty 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 TFMDP will automatically be enrolled in TFMDP. No 
election to enroll in TFMDP will be required by the active duty 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.
    (ii) Family premium. Two (2) or more covered eligible dependents. 
Under the family premium, all eligible dependents of the active duty 
member are enrolled.
    (2) Exceptions. (i) An active duty member may elect to enroll only 
those eligible dependents residing in one location when the active duty 
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 requires a hospital or special 
treatment environment (due to a medical, physical handicap, or mental 
condition) for dental care otherwise covered by the TFMDP, the 
dependent may be excluded from TFMDP enrollment and may continue to 
receive care from a military treatment facility.
    (C)  Enrollment period--(1) General. Enrollment of beneficiaries is 
for a period of one (1) year followed by month-to-month enrollment as 
long as the active duty member chooses to continue enrollment. Active 
duty members may enroll their family members in the TFMDP provided 
there is an intent to remain on active duty for a period of not less 
than one (1) year by the active duty member and the parent Uniformed 
Service. Family members enrolled in the TFMDP 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) Reserve component members ordered to active duty in support of 
contingency operations. The mandatory 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 TFMDP 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 TFMDP and complete the 
enrollment application within 30 days following entry on active duty. 
following enrollment, family members 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 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 TFMDP coverage begins

[[Page 66134]]

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 TFMDP 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 re-enroll in the TFMDP at a later date.
    (D) Beginning dates of eligibility. The beginning date of 
eligibility for TFMDP 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. This includes any changes between single and 
family member premium coverage and coverage of newly eligible or 
enrolled dependents.
    (E) Changes in and termination of enrollment--(1) Changes in status 
of active duty member. When the active duty member is separated, 
discharged, or retired, his or her dependents lose eligibility as of 
11:59 p.m. on the last day of the month in which the change in status 
takes place. Eligible dependents of an active duty member serving a 
sentence of confinement in conjunction with a sentence of punitive 
discharge are still eligible for the TFMDP until such time as the 
active duty member's discharge is executed.
    (2) Continuation of eligibility for dependents of active duty 
members who die on active duty. Eligible dependents of active duty 
members who die on or after October 1, 1993, while on active duty for a 
period of more than thirty (30) days and who are enrolled in the TFMDP 
on the date of the death of the active duty member shall be eligible 
for continued enrollment in the TFMDP for up to one (1) year from the 
date of the active duty member's death.
    (3) Changes in status of dependent.--(i) Divorce. A spouse 
separated from an active duty 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 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 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 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 member who is adopted by 
a person, other than a person whose dependents are eligible for TFMDP 
benefits while the active duty member is living, thereby severing the 
legal relationship between the child and the active duty 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 member who 
marries a person whose dependents are not eligible for the TFMDP, 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 21 years old, the 
child again becomes 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 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 21 or 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 TFMDP 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 TFMDP 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 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 related to mental or physical incapacity as described in 
Sec. 199.3(b)(2)(iv)(C)(2).
    (4) Other.--(1) Disenrollment because of no eligible beneficiaries. 
When an active duty member ceases to have any eligible beneficiaries, 
enrollment is terminated.
    (ii) Option to disenroll as a result of a change in active duty 
station. When an active duty member transfers with beneficiaries to a 
duty station where space-available dental care for the beneficiaries is 
readily available at the local Uniformed Service dental treatment 
facility or to locations within the OCONUS service area, the active 
duty member may elect, within ninety (90) calendar days of the 
transfer, to disenroll from the TFMDP. 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 re-enroll his or her 
dependents in the TFMDP 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.
    (iii) Option to disenroll after an initial one (1) year enrollment. 
When an active duty member's enrollment has been in effect for a 
continuous period of one (1) year, the active duty member may disenroll 
at any time following procedures as set up by the dental plan 
contractor. Subsequent to the disenrollment, the active duty member may 
reenroll for another minimum period of one (1) year. If, during any one 
(1) year enrollment period, the active duty member disenrolls for 
reasons other than those listed in this paragraph (c)(3)(ii)(E) or 
fails to make premium payments, the active duty member and 
beneficiaries will be subject to a lock-out period of twelve (12) 
months. Following this period of time, active duty members will be able 
to reenroll if they so choose. The twelve (12) month lock-out period 
applies to 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 members enrolling in 
the TFMDP shall be required to pay a

[[Page 66135]]

portion of the premium cost for their dependents.
    (2) Proportion of active duty member's premium share. The 
proportion of premium share to be paid by the active duty member is 
established by the ASD (HA), or designee, at not more than forty (40) 
percent of the total premium.
    (3) Provision for increases in active duty member's premium share. 
(i) Although previously capped at $20 per month, the law has been 
amended to authorize the cap on active duty members' premiums to rise, 
effective as of January 1 of each year, by the percent equal to the 
lesser of:
    (A) The percent by which the rates of basic pay of active duty 
members 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 member's 
TFMDP premium will be applied as if the methodology had been in 
continuous use since December 31, 1993.
    (4) Reduction of premium share or cost-shares for enlisted members. 
For enlisted members in pay grades E-1 through E-4, the ASD (HA) or 
designee, may reduce the monthly premium and/or cost-shares these 
active duty members pay for selected benefits as specified in paragraph 
(e)(3)(i) of this section.
    (5) Premium payment method. The active duty member's premium share 
shall be deducted from the active duty member's basic pay, if 
sufficient pay is available. For dependents who are otherwise eligible 
for TFMDP benefits and whose sponsors do not receive such pay, or if 
sufficient pay is available, the premium payment may be collected 
pursuant to procedures established by the Director, OCHAMPUS, or 
designee.
    (6) Annual notification of premium rates. TFMDP 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 TFMDP 
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 TFMDP 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 Service HBAs and major personnel centers at 
Uniformed Service installations to all members enrolling their 
dependents.
    (iv) Alternative course of treatment policy. The Director, 
OCHAMPUS, or designee, may establish, in accordance with generally 
accepted dental benefit practices, 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 the following conditions:
    (A) The service, procedure, or course of treatment must be 
consistent with sound professional standards of dental practice for the 
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 TFMDP for the dental condition.
    (C) Payment for the alternative service or procedure may not exceed 
the lower of the prevailing limits fro 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 
TFMDP'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.

[[Page 66136]]

    (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 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 removal of complete and partial dentures, fixed crowns and 
bridges when performed directly by dentists as authorized under 
paragraph (f) of this section. These include the following categories 
of prosthodontic services:
    (A) Prosthodontics (removable).
    (1) Complete and partial dentures.
    (2) Adjustment 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 TFMP. For further information on 
adjunctive dental care benefits under TRICARE/CAMPUS, 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 TFMDP.
    (xi) Limitation on reduction of benefits. If a reduction in 
benefits is planned, the Secretary of Defense, or designee, may not 
reduce TFMDP benefits without notifying the appropriate Congressional 
committees. If a reduction is approved, the Secretary of Defense, or 
designee, must wait one year from the date of notice before a benefit 
reduction can be implemented.
    (3) Cost-shares, liability and maximum coverage. (i) Cost-shares. 
The following table lists maximum active duty member cost shares for 
covered services for participating and nonparticipating providers of 
care. These are percentages of the dental plan contractor's determined 
allowable amount that the active duty member or beneficiary must pay to 
these providers:

                              [In percent]
------------------------------------------------------------------------
                                          Cost-share for
                                           pay grades E-  Cost-share for
            Covered services                1, E-2, E-3    all 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,                 20              20
 resins, stainless steel crowns)........
Endodontic..............................              30              40
Periodontic.............................              30              40
Oral and Maxillofacial Surgery..........              30              40
General Anesthesia......................              40              40

[[Page 66137]]

 
Intravenous Sedation....................              50              50
Other Restorative (example: crowns,                   50              50
 onlays, casts).........................
Prostodontic............................              50              50
Medications.............................              50              50
Orthodontic.............................              50              50
Miscellaneous Services..................              50              50
------------------------------------------------------------------------

    (ii) Dental plan contractor liability. Where the dental program 
contractor is unable to identify a participating provider of care 
(i.e., a general dentist) within thirty five (35) miles of the 
beneficiary's place of residence with appointment availability within 
twenty one (21) calendar days, the dental program contractor will 
reimburse the beneficiary, or active duty member, or the 
nonparticipating provider selected by the beneficiary within thirty 
five (35) miles of the beneficiary's place of residence at the level of 
the provider's usual fees less the applicable beneficiary cost share, 
if any.
    (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. Enrolled 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 restriction 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 TFMDP 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) Utlization review and quality assurance. Services and supplies 
furnished by providers of care shall be subject to utilization review 
and quality assurance standards, norms, and criteria established under 
the TFMDP. Utilization review and quality assurance assessments shall 
be performed under the TFMDP. Utilization review and quality assurance 
assessments shall be performed under the TFMDP 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 TFMDP authorized provide 
practicing within the scope of his or her license.
    (5) Participating provider. An authorized provider may elect to 
participate for all TFMDP 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 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 TFMDP beneficiaries and request the beneficiary 
or active duty 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 availabiltiy 
within twenty one (21) calendar days. In such instances of the 
nonavailability of a participating provider, 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)(i) of this section.
    (i) Assignment of benefits. A nonparticipating provider may accept 
assignment of benefits for claims (for beneficiaries certifying their 
wilingness to make such assignment of benefits) by filing the claims 
completed with the assistance of the beneficiary or active duty 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 member 
file the claim directly with the dental plan contractor, making 
arrangements with the beneficiary or active duty member for direct 
payment by the beneficiary or active duty member.
    (7) Alternative delivery system--(i) General. Alternative delivery 
systems may be established by the Director, OCHAMPUS, or designee, as 
authorized providers. Only dentists, dental hygienists and licensed 
anesthetists shall be authorized to provide or direct the provision of 
authorized services and supplies in an approved alternative delivery 
system.
    (ii) Defined. An alternative delivery system may be any approved

[[Page 66138]]

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 
and 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 TFMDP 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 TFMDP'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 TFMDP as and incentive for beneficiary 
participation in the alternative delivery system.
    (g) Benefit payment.--(1) General. TFMDP benefit payments are made 
either directly to the provider or to the beneficiary or active duty 
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 
allowable charges. The following general requirements for the TFMDP 
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 
members of 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'', ``TFDP beneficiaries'' and ``TFMDP providers'' 
respectively for the purposes of this section. Examples of fraud 
include situations in which ineligible persons not enrolled in the 
TFMDP obtain care and file claims for benefits under the name and 
identification of an enrolled 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 contractors'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'', 
``TFMDP beneficiaries'', ``TFMDP participating providers'' and ``Dental 
Explanation of Benefits of DEOB'' respectively for the purposes of this 
section. References to ``OCAMPUSEUR'' in Sec. 199.10 are not applicable 
to the TFMDP 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).
    (B) Participation in an appeal. Participating 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. 199.10(a)(2)(i) 
and Sec. 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. 199.10(a)(6), Sec. 199.10(a)(6)(i), 
Sec. 199.10(a)(6)(iv), including Sec. 199.10(a)(6)(iv) (A) and (C), and 
Sec. 199.10(a)(6)(v) for an explanation and examples of nonappealable 
issues.

[[Page 66139]]

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 TFMDP is the 
responsibility of the dental plan contractor and ultimate 
responsibility for resolving a beneficiary's enrollment rests with the 
dental plan contractor. Accordingly, a disputed question of fact 
concerning a beneficiary's enrollment will not be considered an 
appealable issue under the provisions of this section, but shall be 
resolved in accordance with paragraph (c) of this section and the 
dental plan contractor's enrollment policies and procedures.
    (2) Decisions relating to the issuance of a nonavailability 
statement (NAS) in each case are made by the Uniformed Services. 
Disputes over the need for an NAS or a refusal to issue an NAS are not 
appealable under this section. The one exception is when a dispute 
arises over whether the facts of 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 TFMDP. 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). Initials 
determinations involving the sanctioning (exclusion, suspension, or 
termination) of TFMDP 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. 199.10(d) and Sec. 199.10(d)(1) 
through (d)(5) and (d)(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, 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 decision is issued in the case.
    (5) Final decision. See Sec. 199.10(e)(1) and Sec. 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).

    Dated: November 12, 1999.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 99-30072 Filed 11-23-99; 8:45 am]
BILLING CODE 5001-10-M