[Federal Register Volume 68, Number 160 (Tuesday, August 19, 2003)]
[Proposed Rules]
[Pages 49732-49733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21012]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DoD 6010.8-R
RIN 0720-AA86


TRICARE Program; Coordination of Benefits Between TRICARE and the 
Department of Veterans Affairs

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

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SUMMARY: Under current rules, beneficiaries who are eligible for both 
TRICARE and Department of Veterans Affairs (VA) benefits may use only 
one program for care but cannot use both at the same time. This 
proposed rule changes that policy to establish VA benefits as double 
coverage under TRICARE, so that beneficiaries may use TRICARE benefits 
to augment or replace services being provided through the VA.

DATES: Public comments must be received by October 20, 2003.

ADDRESSES: Forward comments to: TRICARE Management Activity (TMA), 
Medical Benefits and Reimbursement Systems, 16401 East Centretech 
Parkway, Aurora, CO 80011-9043.

FOR FURTHER INFORMATION CONTACT: Stephen E. Isaacson, Medical Benefits 
and Reimbursement Systems, TMA, (303) 676-3572.

SUPPLEMENTARY INFORMATION: 

Coordination of TRICARE and the Department of Veterans Affairs Benefits

    According to 10 USC 1086(g) TRICARE is to ensure ``that no person 
eligible for health benefits under this section may be denied benefits 
under this section with respect to care or treatment for any service 
connected disability which is compensable under chapter 11 of title 38 
solely on the basis that such person is entitled to care or treatment 
for such disability in facilities of the Department of Veterans 
Affairs''.
    In applying this statutory provision, TRICARE has established a 
policy that would ensure free access to care under either program and 
continuity of care for beneficiaries while also ensuring that TRICARE 
and the Department of Veterans Affairs (VA) do not duplicate benefits. 
This policy allows beneficiaries to use either TRICARE or the VA for 
any episode of care, but they cannot use both. Often beneficiaries make 
the choice of which program to use, not by any definitive action, but 
simply by going first to either TRICARE or the VA for care. Once that 
is done, the other program cannot be involved. For example, if a 
beneficiary experiences back pain and goes to the VA for care, the 
beneficiary must then receive all care related to that back pain from 
the VA. If the beneficiary subsequently goes to a civilian physician 
for the back pain and submits a claim to TRICARE, TRICARE will deny the 
claim.
    This limitation on care has been based on ``episodes of care'' 
which has never been fully defined under TRICARE, in either the 
regulation or any TRICARE manual. It is generally accepted to be all 
care related to a single injury or illness, but it has been left to the 
TRICARE managed care support contractors to actually determine what 
constitutes an episode of care when a claim is received that might be 
subject to this limitation. There has also not been any universal 
policy as to when an episode of care ends. Using the previous example 
of the beneficiary with back pain, if the beneficiary goes for thirty 
days without receiving any care for the back pain, does that end the 
episode of care? Should it be sixty days? Or ninety days? The end of 
the episode of care is important, because the limitation on using only 
TRICARE or the VA applies only to episodes of care. That is, if the 
beneficiary has elected to use the VA for one episode of care, the 
beneficiary can elect to use TRICARE for a different episode of care. 
That episode of care can overlap the initial episode of care if it is 
for a totally different injury or illness. If it is for the same injury 
of illness, an appropriate amount of time must have passed without the 
beneficiary receiving any care.
    As noted above, this policy was established in order to ensure 
continuity of care for our beneficiaries and to ensure there was no 
duplication of care or payments between TRICARE and the VA. If a 
beneficiary is receiving care from the VA for an injury or illness, a 
plan of care will have been established by the VA provider, and 
subsequently receiving care from a different provider under TRICARE, 
who might decide on a different course of treatment, may actually 
negatively impact the beneficiary's progress. At the very least

[[Page 49733]]

the services from the second provider would probably be duplicative and 
result in unnecessary expenditures by TRICARE.
    This policy has caused few problems, but there have been cases 
where a beneficiary has been dissatisfied with the care he/she was 
receiving from either TRICARE or the VA and has wanted to switch to the 
other program to receive services for the same episode of care. They 
have been unable to do so.
    Section 708 of the National Defense Authorization Act for FY 2003 
(Pub. L. 107-314) addresses this issue. Although it makes no change to 
the statutes that govern TRICARE (10 U.S.C. Chapter 55), it directs the 
Secretary of Defense to (1) take actions to establish a process for 
coordinating care between TRICARE and the VA that ensures patient 
safety and continuity of care while preventing diminution of access to 
health care from either source, and (2) prescribe a clear definition of 
an episode of care for use in the process of coordinating care between 
TRICARE and the VA.
    In analyzing how best to establish this process, we have decided to 
change our basic policy rather than defining episode of care. By 
changing our policy we will ensure that no one is inadvertently denied 
access to care under TRICARE for which they also can receive treatment 
in a VA facility.
    Any attempt to establish a workable definition of episode of care 
would require some specific and arbitrary end date which undoubtedly 
would be detrimental to some individual case. We also believe that 
there are few cases that actually are affected by this policy. For the 
vast majority of cases, beneficiaries decide to use either TRICARE or 
the VA for reasons that are important to them, and they are satisfied 
with continuing to receive their care from the same source.
    Therefore, we propose to change our policy to include care from VA 
medical care facilities under the definition of double coverage for 
TRICARE. In support of the policy explained above, the TRICARE 
regulation (32 CFR Part 199) currently states that TRICARE double 
coverage plans do not include entitlement to receive care from VA 
medical care facilities. Most other coverages (insurance, medical 
service or health plans) are considered double coverage, which means 
that a beneficiary simply must submit a claim for services or supplies 
to the double coverage plan first. After the double coverage makes 
payment, TRICARE will process the claim and usually will pay the 
remaining liability on the claim.
    The effect of our proposed change will be to enable individuals who 
are receiving care from the VA to change to care under TRICARE for the 
same episode of care. Under this policy the VA will be responsible for 
payment for the services they provide, either directly through their 
medical care facilities or through a basic ordering agreement with a 
civilian provider. A claim can then be submitted to TRICARE for 
reimbursement of any VA cost-shares. At the same time, the beneficiary 
may choose to receive care from a civilian provider for the episode of 
care that has not been arranged by the VA. Claims for this care, so 
long as it is medically necessary, can be submitted to TRICARE, and 
they will be reimbursed.
    This policy eliminates the need for an arbitrary definition of an 
episode of care, and it ensures full freedom of choice for 
beneficiaries who have entitlement to both TRICARE and VA benefits. 
While there may be some remaining issue regarding continuity of care 
and duplicative care for a very few cases, this is largely mitigated by 
the fact that many TRICARE beneficiaries are enrolled in TRICARE Prime. 
Under Prime, all care is coordinated by an assigned Primary Care 
Manager who can ensure that any care received under TRICARE does not 
interfere with or duplicate care being provided by the VA.

Regulatory Procedures

    Executive Order (EO) 12866 requires that a comprehensive regulatory 
impact analysis be performed on any economically significant regulatory 
action, defined as one which would result in an annual effect of $100 
million or more on the national economy or which would 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 rule has been designated as significant and has been reviewed 
by the Office Management and Budget as required under the provisions of 
E.O. 12866. In addition, we certify that this proposed rule will not 
significantly affect a substantial number of small entities.

Paperwork Reduction Act

    This rule imposes no burden as defined by the Paperwork Reduction 
Act of 1995.

List of Subjects in 32 CFR Part 199

    Claims, handicapped, health insurance, and military personnel.

    Accordingly, 32 CFR part 199 is proposed to be amended as follows:

PART 199--[AMENDED]

    1. The authority citation for Part 199 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 10 U.S.C. Chapter 55.

    2. Section 199.2 is proposed to be amended by revising the 
definition double coverage plan as follows.


Sec.  199.2  Definitions.

* * * * *
    (b) * * *
* * * * *
    Double coverage plan. The specific insurance, medical service or 
health plan under which a CHAMPUS beneficiary has entitlement to 
medical benefits that duplicate CHAMPUS benefits in whole or in part. 
Double coverage plans do not include;
    (i) Medicaid.
    (ii) Coverage specifically designed to supplement CHAMPUS benefits.
    (iii) Entitlement to receive care from the Uniformed Services 
medical facilities;
    (iv) Part C of the Individuals with Disabilities Education Act for 
services and terms provided in accordance with Part C of the IDEA that 
are medically or psychologically necessary in accordance with the 
Individualized Family Service plan and that are otherwise allowable 
under the CHAMPUS Basic Program or the Program for Persons with 
Disabilities.
* * * * *
    3. Section 199.8 is proposed to be amended by redesignating 
existing paragraphs (b)(3) and (b)(4) as (b)(4) and (b)(5) 
respectively, and adding a new paragraph (b)(3) to read as follows:


Sec.  199.8  Double coverage plan.

* * * * *
    (b) * * *
    (3) Entitlement to receive care from VA medical care facilities.
* * * * *

    Dated: August 12, 2003.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-21012 Filed 8-18-03; 8:45 am]
BILLING CODE 5001-08-M