[Federal Register Volume 72, Number 244 (Thursday, December 20, 2007)]
[Proposed Rules]
[Pages 72307-72316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24707]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[DOD-2007-HA-0010, RIN 0720-AB09]

32 CFR Part 199


TRICARE Program; Overpayments Recovery

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

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SUMMARY: This rule proposes amendments to the CHAMPUS and TRICARE 
program regulation that governs the recoupment of erroneous payments. 
The proposed rule implements changes required by the Debt Collection 
Improvement Act of 1996 and the revised Federal Claims Collection 
Standards.

DATES: Comments must be received on or before February 19, 2008. Do not 
submit comments directly to the point of contact or mail your comments 
to any address other that what is shown below. Doing so will delay the 
posting of the submission.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Gail L. Jones, (303) 676-3401.

SUPPLEMENTARY INFORMATION: 

Background and Purpose

    On December 23, 1985, the Office of the Secretary of Defense 
published a final rule in the Federal Register (50 FR 52315), 
clarifying specific procedures and criteria in the assertion, 
collection or compromise of federal claims and the suspension or 
termination of collection action on such claims arising under the 
operation of the Civilian Health and Medical Program of the Uniformed 
Services (CHAMPUS). Section 199.11, ``Overpayments Recovery,'' 
addresses claims in favor of the United States arising under the 
Federal Claims Collection Act (recoupment claims).
    This proposed rule implements changes required by the Debt 
Collection Improvement Act of 1996 (DCIA) and the revised Federal 
Claims Collection Standards, which were jointly issued by the 
Department of the Treasury (Treasury), and the Department of Justice 
(DOJ). The DCIA centralized the collection of most delinquent non-tax 
debt at the Department of the Treasury Financial Management Service 
(Treasury). Agencies are now required to refer debts to Treasury for 
centralized administrative offset under the Treasury Offset Program 
(TOP) and to transfer debts to Treasury for collection on the agencies' 
behalf, a process known as cross-servicing.

Section-by-Section Analysis

    Paragraph (a) of this proposed rule provides that it applies to the 
TRICARE program and the Civilian Health and Medical Program of the 
Uniformed Services (CHAMPUS).
    Section (b)(1) of this proposed rule has been updated to include 
the DCIA and the revised Federal Claims Collection Standards, 31 CFR 
parts 900-904, as authority for collection, as well as Treasury 
regulations, found at 31 CFR part 285, subpart A, implementing the DCIA 
and related statutes governing the offset of Federal salaries (5 U.S.C. 
5514, 5 CFR 550, subpart K), administrative offset (31 U.S.C. 3716), 
administrative offset of tax refunds (31 U.S.C. 3720A) and regulations 
implementing the offset of military pay under Title 37 U.S.C. 1007(c). 
The reference to waiver of collection authorized by Section 743 of the 
National Defense Authorization Act for Fiscal Year 1996 has been 
deleted. The legislation authorizing waiver has expired.
    Paragraph (c) of this proposed rule has been updated to reflect 
that the Director, TRICARE Management Activity (TMA), or a designee, is 
responsible for ensuring that timely collection action is pursued. The 
Office of CHAMPUS (OCHAMPUS) has been disestablished. The functions of 
OCHAMPUS are now being performed by the TMA. The current regulation 
reflects that agency authority to compromise, suspend, or terminate 
collection action was limited to claims that did not exceed $20,000. 
The proposed rule increases this amount to $100,000 at Paragraph (g), 
the amount authorized by 31 U.S.C. 3711(a)(2).
    Paragraph (e) of the proposed rule is updated to reflect that the 
authority to assert, settle, compromise or to suspend

[[Page 72308]]

or terminate collection on claims arising under the Federal Claims 
Collection Act, has been delegated to the Director, TMA.
    Paragraph (f)(1) of the proposed rule adds a provision that 
recoupment procedures may be modified or adapted to conform to network 
agreements and that the recoupment provisions of the proposed rule 
apply if recoupment under the network agreements is not successful.
    Paragraph (f)(3) of the proposed rule clarifies a requirement that 
the TRICARE contractor must first attempt to recover an erroneous 
payment from another health insurance plan through the contractor's 
coordination of benefits procedures. If the overpayment cannot be 
recovered from the other plan, or if the other plan has made payment, 
the erroneous payment will be recovered from the party that received 
the erroneous payment from TRICARE.
    Paragraph (f)(6)(iii) of the proposed rule provides that a minimum 
of one demand letter is required and states that the specific content, 
timing and number of demand letters may be tailored to the type and 
amount of debt and the debtor's response, if any. Paragraph (6)(ii) of 
the current regulation states that normally a total of three 
progressively stronger written demands for payment be made to a debtor 
at approximately 30-day intervals and that the demands for payment will 
be made by CHAMPUS fiscal intermediary and OCHAMPUS. The proposed rule 
updates this language to reflect that normally the TRICARE contractor 
will initiate initial collection action to effect recoupment.
    Paragraph (f)(6)(iv) of the proposed rule adds language providing 
that the initial or subsequent demand letter(s) may notify debtors of 
the mandatory requirement to report delinquent debts to credit 
reporting agencies and to refer delinquent debts to collection 
agencies, the Treasury Offset Program (TOP) for collection by 
administrative offset from Federal tax refunds and other amounts 
payable by the Government, offset from state payments as well as the 
requirement that delinquent debts be transferred to Treasury for 
collection. It also provides that letters may include TMA policies for 
referring delinquent debts to the Department of Justice.
    Paragraph (f)(6)(v) of the proposed rule deletes language found at 
Paragraph (f)(6)(iii) of the current regulation which stated that 
offset under the provisions of 31 U.S.C. 3716 was not to be used with 
respect to debts owed by any state or local government. The collection 
of debts owed by state and local governments through administrative 
offset is no longer prohibited.
    Paragraph (f)(6)(v)(A) of the proposed rule is added to implement a 
requirement of the DCIA that eligible non-tax debts delinquent over 180 
days be referred to Treasury for centralized administrative offset, 
unless otherwise exempted from referral. Debts that were formerly 
referred directly to the Internal Revenue Service for Tax Refund Offset 
will be referred for centralized administrative offset. It also 
provides that salary offsets under 5 U.S.C. 5514 that were formerly 
effected through referral to an employee's paying agency, pursuant to 
Paragraph (f)(6)(vi) of 32 CFR Sec.  199.11 will be effected through 
referral for centralized administrative offset.
    Paragraph (f)(6)(vi) of the proposed rule adds this section to 
implement a mandatory requirement of the DCIA that eligible non-tax 
debts delinquent over 180 days be transferred to Treasury or a 
Treasury-Designated Collection Center for collection through cross-
servicing, unless otherwise exempted from referral.
    Paragraph (f)(6)(ix) of the proposed rule increases the minimum 
amount of installment payment that may be accepted to $75.00 per month 
unless the debtor demonstrates financial hardship. Paragraph (f)(6)(iv) 
of the current regulation provides that the minimum amount is $50.00.
    Paragraph (f)(6)(xi) of the proposed rule adds language that 
requires TMA to use government-wide collection contracts to obtain debt 
collection services through private contractors as provided in 31 CFR 
901.5(b). The current regulation provides for TMA to contract for such 
services.
    Paragraph (f)(6)(xii) of the proposed rule adds language which 
provides that Treasury will report debts transferred to it for 
collection to credit reporting agencies on behalf of TMA. Paragraph 
(g)(1) of the proposed rule updates language to authorize the Director, 
TMA to compromise, suspend or terminate collection action of debts that 
do not exceed $100,000 (exclusive of interest, penalties and 
administrative costs) or less, or such other amount as the Attorney 
General shall authorize, as provided in 31 CFR 902.1(a). Paragraph (b) 
of the current regulation limits this authority to $20,000. Paragraph 
(g)(3) of the current regulation has been deleted, because the 
legislation authorizing the waiver has expired.
    Paragraph (h) of the proposed rule increases the threshold for 
referral of cases to the Department of Justice from $600 to $2,500 or 
such other amount as the Attorney General shall prescribe, as provided 
in 31 CFR 904.4(a).
    The effect of the proposed rule would avoid the expense of court 
proceedings for both the government and the debtor, as well as reduce 
administrative handling, provide greater flexibility to recovery 
efforts, and promote timely settlements of outstanding federal claims.
    This amendment is being published for proposed rulemaking at the 
same time as it is being coordinated within the Department of Defense, 
with the Department of Health and Human Services, and with other 
interested agencies, in order that consideration of both internal and 
external comments and publication of the final rulemaking document can 
be expedited.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review''

    Executive Order 12886 requires that a comprehensive regulatory 
impact analysis be performed on any economically significant regulatory 
action, defined as one that would result in an annual effect of $100 
million or more on the national economy or which would have other 
substantial impacts.

Pub. L. 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    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 is not an economically significant regulatory action and will 
not have a significant impact on a substantial number of small entities 
for purposes of the RFA, thus this proposed rule is not subject to any 
of these requirements.
    This proposed rule, although not economically significant under 
E.O. 12866, it has been designated as significant and has been reviewed 
by the Office of Management and Budget as required under the provisions 
of E.O. 12866. The changes set forth in the proposed rule are required 
by the Debt Collection Improvement Act of 1996 (Public Law 104-134, 110 
Stat. 1321,1358 (1996) (DCIA)), as implemented by the Federal Claims 
Collection Standards, joint regulations issued by the Department of the 
Treasury and the Department of Justice, 31 CFR parts 900-904.

[[Page 72309]]

Pub. L. 96-511, ``Paperwork Reduction Act of 1995'' (44 U.S.C. 3501, et 
seq.)

    It has been certified that this rule does not impose new 
information collection requirements for purposes of the Paperwork 
Reduction Act of 1995.

Executive Order 13132, Federalism

    We have examined the impact of the proposed rule under E.O. 13132 
and it does not have policies that have federalism implications that 
would have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among various levels of 
government. Therefore, consultation with State and local officials is 
not required.
    This is a proposed rule. Public comments are invited.

List of Subjects in 32 CFR Part 199

    Claims, Dental health, Health care, Health insurance, Individuals 
with disabilities, 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 199.11 is proposed to be revised to read as follows:


Sec.  199.11  Overpayments recovery.

    (a) General. Actions to recover overpayments arise when the 
government has a right to recover money, funds or property from any 
person, partnership, association, corporation, governmental body or 
other legal entity, foreign or domestic, except another Federal agency, 
because of an erroneous payment of benefits under both CHAMPUS and the 
TRICARE program under Sec.  199.17 of this part. The term ``Civilian 
Health and Medical Program of the Uniformed Services'' (CHAMPUS) is 
defined in 10 U.S.C. 1072(4), and referred to under Sec.  199.17 as the 
basic CHAMPUS program, otherwise known as TRICARE Standard. The term 
``TRICARE program'' is defined in 10 U.S.C. 1072(7) and is referred to 
under Sec.  199.17 as the triple-option benefit of TRICARE Prime, 
TRICARE Extra, and TRICARE Standard. It is the purpose of this section 
to prescribe procedures for investigation, determination, assertion, 
collection, compromise, waiver and termination of claims in favor of 
the United States for erroneous benefit payments arising out of the 
administration of CHAMPUS and the TRICARE program. For the purpose of 
this section, references herein to TRICARE beneficiaries, claims, 
benefits, payments, or appeals shall include CHAMPUS beneficiaries, 
claims, benefits, payments, or appeals. A claim against several joint 
debtors arising from a single incident or transaction is considered one 
claim. The Director, TRICARE Management Activity (TMA), or a designee, 
may pursue collection against all joint debtors and is not required to 
allocate the burden of payment between debtors.
    (b) Authority--(1) Federal statutory authority. The Federal Claims 
Collection Act, 31 U.S.C. 3701, et seq., as amended by the Debt 
Collection Act of 1982 and the Debt Collection Improvement Act of 1996 
(DCIA), provides the basic authority under which claims may be asserted 
pursuant to this section. The DCIA is implemented by the Federal Claims 
Collection Standards, joint regulations issued by the Department of the 
Treasury and the Department of Justice (DOJ) (31 CFR parts 900-904), 
that prescribe government-wide standards for administrative collection, 
offset, compromise, suspension, or termination of agency collection 
action, disclosure of debt information to credit reporting agencies, 
referral of debts to private collection contractors for resolution, and 
referral to the Department of Justice for litigation to collect debts 
owed the Federal government. The regulations under this part are also 
issued under Treasury regulations implementing the DCIA (31 CFR part 
285) and related statutes and regulations governing the offset of 
Federal salaries (5 U.S.C. 5514; 5 CFR 550, subpart K), administrative 
offset (31 U.S.C. 3716; 31 CFR subpart A); administrative offset of tax 
refunds (31 U.S.C. 3720A) and offset of military pay (37 U.S.C. 
1007(c); Volume 7A, Chapter 50 and Volume 7B, Chapter 28 of the 
Department of Defense Financial Management Regulation, DOD 7000.14-R 
\1\ (DoDFMR))
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
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    (2) Other authority. Federal claims may arise under authorities 
other than the federal statutes, referenced above. These include, but 
are not limited to:

(i) State worker's compensation laws
(ii) State hospital lien laws
(iii) State no-fault automobile statutes
(iv) Contract rights under terms of insurance policies

    (c) Policy. The Director, TMA, or a designee, shall aggressively 
collect all debts arising out of its activities. Claims arising out of 
any incident, which has or probably will generate a claim in favor of 
the government, will not be compromised, except as otherwise provided 
in this section, nor will any person not authorized to take final 
action on the government's claim, compromise or terminate collection 
action. Title 28 U.S.C. 2415-2416 establishes a statute of limitation 
applicable to the government where previously neither limitations nor 
latches were available as a defense. Claims falling within the 
provisions of this statute will be referred to the Department of 
Justice without attempting administrative collection action, if such 
action cannot be accomplished in sufficient time to preclude the 
running of the statue of limitations.
    (d) Appealability. This section describes the procedures to be 
followed in the recovery and collection of federal claims in favor of 
the United States arising from the operation of TRICARE. Actions taken 
under this section are not initial determinations for the purpose of 
the appeal procedures of Sec.  199.10 of this part. However, the proper 
exercise of the right to appeal benefit or provider status 
determinations under the procedures set forth in Sec.  199.10 of this 
part may affect the processing of federal claims arising under this 
section. Those appeal procedures afford a TRICARE beneficiary or 
participating provider an opportunity for administrative appellate 
review in cases in which benefits have been denied and in which there 
is an appealable issue. For example, a TRICARE contractor may 
erroneously make payment for services, which are excluded as TRICARE 
benefits because they are determined to be not medically necessary. In 
that event, the contractor will initiate recoupment action, and at the 
same time, the contractor will offer an administrative appeal as 
provided in Sec.  199.10 of this part on the medical necessity issue 
raised by the adverse benefit determination. The recoupment action and 
the administrative appeal are separate actions. However, in an 
appropriate case, the pendency of the appeal may provide a basis for 
the suspension of collection in the recoupment case. If an appeal were 
resolved entirely in favor of the appealing party, it would provide a 
basis for the termination of collection action in the recoupment case.
    (e) Delegation. Subject to the limitations imposed by law or 
contained in this section, the authority to assert, settle, and 
compromise or to suspend or terminate collection action arising on 
claims under the Federal Claims

[[Page 72310]]

Collection Act has been delegated to the Director, TMA, or a designee.
    (f) Recoupment of erroneous payments. (1) Erroneous payments are 
expenditures of government funds, which are not authorized by law or 
this part. Examples which are sometimes encountered in the 
administration of TRICARE include mathematical errors, payment for care 
provided to an ineligible person, payment for care which is not an 
authorized benefit, payment for duplicate claims, incorrect application 
of the deductible or co-payment or payment for services which were not 
medically necessary. Claims in favor of the government arising, as the 
result of the filing of false TRICARE claims or other fraud, fall under 
the cognizance of the Department of Justice. Consequently, procedures 
in this section apply to such claims only when specifically authorized 
or directed by the Department of Justice. (See 31 CFR 900.3.) Due to 
the nature of contractual agreements between network providers and 
TRICARE prime contractors, recoupment procedures may be modified or 
adapted to conform to network agreements. The provisions of Sec.  
199.11 shall apply if recoupment under the network agreements is not 
successful.
    (2) Scope--(i) General. Paragraph (f) of this section and the 
paragraphs following contain requirements and procedures for the 
assertion, collection or compromise of, and the suspension or 
termination of collection action on claims for erroneous payments 
against a sponsor, patient, beneficiary, provider, physician or other 
supplier of products or services under TRICARE.
    (ii) Debtor defined. As used herein, ``debtor'' means a sponsor, 
beneficiary, provider, physician, other supplier of services or 
supplies, or any other person who for any reason has been erroneously 
paid under TRICARE. It includes an individual, partnership, 
corporation, professional corporation or association, estate, trust or 
any other legal entity.
    (iii) Delinquency defined. A debt is ``delinquent'' if it has not 
been paid by the date specified in the initial written demand for 
payment (that is, the initial written notification) or other applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by the date specified in the initial written demand for 
payment. A debt is considered delinquent if at any time after entering 
into a repayment agreement, the debtor fails to satisfy any obligations 
under that agreement.
    (3) Other health insurance claims. Claims arising from erroneous 
TRICARE payments in situations where the beneficiary has entitlement to 
an insurance, medical service, health and medical plan, including any 
plan offered by a third party payer as defined in 10 U.S.C. 1095(h)(1) 
or other government program, except in the case of a plan administered 
under Title XIX of the Social Security Act (42 U.S.C. 1396, et. seq.), 
through employment, by law, through membership in an organization, or 
as a student, or through the purchase of a private insurance or health 
plan, shall be recouped following the procedures in paragraph (f) of 
this section. If the other plan has not made payment to the beneficiary 
or provider, the contractor shall first attempt to recover the 
overpayment from the other plan through the contractor's coordination 
of benefits procedures. If the overpayment cannot be recovered from the 
other plan, or if the other plan has made payment, the overpayment will 
be recovered from the party that received the erroneous payment from 
TRICARE.
    (4) Claim denials due to clarification or change. In those 
instances where claim review results in the denial of benefits 
previously provided, but now denied due to a change, clarification or 
interpretation of the public law or this part, no recoupment action 
need be taken to recover funds expended prior to the effective date of 
such change, clarification or interpretation.
    (5) Good faith payment. (i) The Department of Defense, through the 
Defense Enrollment Eligibility Reporting System (DEERS), is responsible 
for establishing and maintaining a file listing of persons eligible to 
receive benefits under TRICARE. However, it is the responsibility of 
the Uniformed Services to provide eligible TRICARE beneficiaries with 
accurate and appropriate means of identification. When sources of 
civilian medical care exercise reasonable care and precaution 
identifying persons claiming to be eligible TRICARE beneficiaries, and 
furnish otherwise covered services and supplies to such persons in good 
faith, TRICARE benefits may be paid subject to prior approval by the 
Director, TMA, or a designee, notwithstanding the fact that the person 
receiving the services and supplies is subsequently determined to be 
ineligible for benefits. Good faith payments will not be authorized for 
services and supplies provided by a civilian source of medical care 
because of its own careless identification procedures.
    (ii) When it is determined that a person was not a TRICARE 
beneficiary, the TRICARE contractor and the civilian source of medical 
care are expected to make all reasonable efforts to obtain payment or 
to recoup the amount of the good faith payment from the person who 
erroneously claimed to be the TRICARE beneficiary. Recoupment of good 
faith payments initiated by the TRICARE contractor will be processed 
pursuant to the provisions of paragraph (f) of this section.
    (6) Recoupment procedures--(i) Initial action. When an erroneous 
payment is discovered, the TRICARE contractor normally will be required 
to take the initial action to effect recoupment. Such actions will be 
in accordance with the provisions of this part and the TRICARE 
contracts and will include a demand (or demands) for refund or an 
offset against any other TRICARE payment(s) becoming due the debtor. 
When the efforts of the TRICARE contractor to effect recoupment are not 
successful within a reasonable time, recoupment cases will be referred 
to the Office of General Counsel, TMA, for further action in accordance 
with the provisions of paragraph (f) of this section. All requests to 
debtors for refund or notices of intent to offset shall be in writing.
    (ii) Demand for payment. Written demand(s) for payment shall inform 
the debtor of the following:
    (A) The basis for and amount of the debt and the consequences of 
failing to cooperate to resolve the debt;
    (B) The right to inspect and copy TRICARE records pertaining to the 
debt;
    (C) The opportunity to request an administrative review by the 
TRICARE contractor; and that such a request must be received by the 
TRICARE contractor within 90 days from the date of the initial demand 
letter;
    (D) That payment of the debt is due within 30 days from the date of 
the initial demand notification;
    (E) That interest will be assessed on the debt at the Treasury 
Current Value of Funds rate, pursuant to 31 U.S.C. 3717, and will begin 
to accrue on the date of the initial demand letter; and that interest 
will be waived on the debt, or any portion thereof, which is paid 
within 30 days from the date of the initial demand notification letter;
    (F) That administrative costs and penalties will be charged 
pursuant to 31 CFR 901.9;
    (G) That collection by offset against current or subsequent claims 
or other amounts payable from the government may be taken;
    (H) The opportunity to enter into a written agreement to repay the 
debt;
    (I) The name, address, and phone number of a contact person or 
office that the debtor may contact regarding the debt.

[[Page 72311]]

    (iii) A minimum of one demand letter is required. However, the 
specific content, timing and number of demand letters may be tailored 
to the type and amount of the debt, and the debtor's response, if any. 
Contractors' demand letters must be mailed or hand-delivered on the 
same date they are dated.
    (iv) The initial or subsequent demand letters may also inform the 
debtor of the requirement to report delinquent debts to credit 
reporting agencies and to collection agencies, the requirement to refer 
debts to the Treasury Offset Program for offset from Federal income tax 
refunds and other amounts payable by the Government, offset from state 
payments, the requirement to refer debts to the Department of Treasury 
for collection and TRICARE policies concerning the referral of 
delinquent debts to the Department of Justice for enforced collection 
action. The initial or subsequent demand letter may also inform the 
debtor of TRICARE policies concerning waiver. When necessary to protect 
the Government's interest (for example to prevent the running of a 
statute of limitations), written demand may be preceded by other 
appropriate actions under this regulation, including referral to the 
Department of Justice for litigation. There should be no undue delay in 
responding to any communication received from the debtor. Responses to 
communications from debtors should be made within 30 days of receipt 
whenever feasible. If prior to the initiation of the demand process or 
at any time during or after completion of the demand process, the 
Director, TMA, or a designee, determines to pursue or is required to 
pursue offset, the procedures applicable to administrative offset, 
found at paragraph (f)(6)(v) of this section must be followed. If it 
appears that initial collection efforts are not productive or if 
immediate legal action on the claim appears necessary, the claim shall 
be referred promptly by the contractor to the Office of General 
Counsel, TMA.
    (v) Collection by administrative offset. Collections by offset will 
be undertaken administratively in every instance when feasible. 
Collections may be taken by administrative offset under 31 U.S.C. 3716, 
the common law or other applicable statutory authority. No collection 
by offset may be undertaken unless the debtor has been sent a written 
demand for payment, including the procedural safeguards described in 
paragraph (f)(6)(ii) of this section, unless the failure to take the 
offset would substantially prejudice the Government's ability to 
collect the debt, and the time before payment is to be made does not 
reasonably permit the time for sending written notice. Such prior 
offset must be promptly followed by sending a written notice and 
affording the debtor the opportunity for a review by the TRICARE 
contractor. Examples of erroneous payments include, but are not limited 
to, claims submitted by individuals ineligible for TRICARE benefits, 
claims submitted for non-covered services or supplies, claims for which 
payments by another insurance or health plan reduces TRICARE liability 
and from claims made from participating providers in which payment was 
initially erroneously made to the beneficiary. The resolution of 
recoupment claims rarely involves issues of credibility or veracity and 
a review of the written record is ordinarily an adequate means to 
correct prior mistakes. For this reason, the pre-offset oral hearing 
requirements of the Federal Claims Collection Standards, 31 CFR 
901.3(e) do not apply to the recoupment of erroneous TRICARE payments. 
However, in instances where an oral hearing is not required, the debtor 
will be afforded an administrative review if the TRICARE contractor 
receives a written request for an administrative review within 90 days 
from the date of the initial demand letter. The appeals procedures 
described in Sec.  199.10 of this part, affords a TRICARE beneficiary 
or participating provider an opportunity for an administrative 
appellate review, including under certain circumstances, the right to 
an oral hearing before a hearing officer when an appealable issue 
exists. TRICARE contractors may take administrative action to offset 
erroneous payments against other current TRICARE payments owing a 
debtor. Payments on the claims of a debtor pending at or filed 
subsequent to the time collection action is initiated should be 
suspended pending the outcome of the collection action so that these 
funds will be available for offset. All or part of a debt may be offset 
depending on the amount available for offset. Any requests for offset 
received from other agencies and garnishment orders issued by courts of 
competent jurisdiction will be forwarded to the Office of General 
Counsel, TMA. Unless otherwise provided by law, administrative offset 
of payments under the authority of 31 U.S.C. 3716 may not be conducted 
more than 10 years after the Government's right to collect the debt 
first accrued, unless facts material to the Government's right to 
collect the debt were not known and could not reasonably have been 
known by the TRICARE official or officials charged with the 
responsibility to discover and collect such debts. This limitation does 
not apply to debts reduced to judgment. This section does not apply to 
debts arising under the Social Security Act, except as provided in 42 
U.S.C. 404, payments made under the Social Security Act, except as 
provided for in 31 U.S.C. 3716(c), debts arising under, or payments 
made under, the Internal Revenue Code, except for offset of tax refunds 
or tariff laws of the United States; offsets against Federal salaries 
to the extent these standards are inconsistent with regulations 
published to implement such offsets under 5 U.S.C. 5514 and 31 U.S.C. 
3716; offsets under 31 U.S.C. 3728 against a judgment obtained by a 
debtor against the United States; offset or recoupment under common 
law, state law, or federal statutes specifically prohibiting offset or 
recoupment of particular types of debts or offsets in the course of 
judicial proceedings, including bankruptcy.
    (A) Referral for centralized administrative offset. When cost-
effective, legally enforceable non-tax debts delinquent over 180 days 
delinquent that are eligible for collection through administrative 
offset shall be referred to the Department of the Treasury for 
administrative offset, unless otherwise exempted from referral. 
Referrals shall include certification that the debt is past due and 
legally enforceable and that TMA has complied with all due process 
requirements of the statute-authorizing offset. Administrative offset, 
including administrative offset against tax refunds due debtors under 
26 U.S.C. 6402, in accordance with 31 U.S.C. 3720A, shall be effected 
through referral for centralized administrative offset, after debtors 
have been afforded at least sixty (60) days notice required in 
paragraph (f)(6) of this section. Salary offsets shall be effected 
through referral for centralized administrative offset, after debtors 
have been afforded due process required by 5 U.S.C. 5514, in accordance 
with 31 CFR 285.7. Referrals for salary offset shall include 
certification that the debts are past due, legally enforceable debts 
and that TMA has complied with all due process requirements under 5 
U.S.C. 5514 and applicable agency regulations. The Treasury, Financial 
Management Service (FMS) may waive the salary offset certification 
requirement set forth in 31 CFR 285.7, as a prerequisite to submitting 
the debt to FMS for offset from other payment types. If FMS waives the 
certification requirement, before an offset occurs, TMA will provide 
the employee with the notice and opportunity for a hearing as

[[Page 72312]]

required by 5 U.S.C. 5514 and applicable regulations, and will certify 
to FMS that the requirements of 5 U.S.C. 5514 and applicable agency 
regulations have been met. TMA is not required to duplicate notice and 
administrative review or salary offset hearing opportunities before 
referring debts for centralized administrative offset when the debtor 
has been previously given them.
    (B) Referral for non-centralized administrative offset. Unless 
otherwise prohibited by law, when centralized administrative offset is 
not available or appropriate, past due legally enforceable non-tax 
delinquent debts that are eligible for referral may be collected 
through non-centralized administrative offset through a request 
directly to the payment-authorizing agency. Referrals shall include 
certification that the debts are past due and that the agency has 
complied with due process requirements under 31 U.S.C. 3716(a) or other 
applicable authority and applicable agency regulations concerning 
administrative offset. Generally, non-centralized administrative 
offsets will be made on an ad hoc case-by-case basis, in cooperation 
with the agency certifying or authorizing payments to the debtor.
    (vi) Collection by transfer of debts to Treasury or a Treasury-
designated debt collection center for collection through cross-
servicing. (A) The Director, TMA or a designee, is required to transfer 
legally enforceable non-tax debts that are delinquent 180 days or more 
to the Department of the Treasury for collection through cross-
servicing (31 U.S.C. 3711(g); 31 CFR 285.12.) Debts referred or 
transferred to Treasury or Treasury-designated debt collection centers 
shall be serviced, collected, or compromised, or the collection action 
will be suspended or terminated, in accordance with the statutory 
requirements and authorities applicable to the collection of such 
debts. Agencies operating Treasury-designated debt collection centers 
are authorized to charge a fee for services rendered regarding referred 
or transferred debts. This fee may be paid out of amounts collected and 
may be added to the debt as an administrative cost. Referrals will 
include certification that the debts transferred are valid, legally 
enforceable debts, that there are no legal bars to collection and that 
the agency has complied with all prerequisites to a particular 
collection action under the applicable laws, regulations or policies, 
unless the agency and Treasury agree that Treasury will do so on behalf 
of the agency.
    (B) The requirement of paragraph (1) of this section does not apply 
to any debt that:
    (1) Is in litigation or foreclosure.
    (2) Will be disposed of under an approved asset sale program.
    (3) Has been referred to a private collection contractor for a 
period of time acceptable to Treasury.
    (4) Will be collected under internal offset procedures within 3 
years after the debt first became delinquent.
    (5) Is exempt from this requirement based on a determination by the 
Secretary of the Treasury that exemption for a certain class of debt is 
in the best interest of the United States.
    (vii) Collection by salary offset. When a debtor is a member of the 
military service or a retired member and collection by offset against 
other TRICARE payments due the debtor cannot be accomplished, and there 
have been no positive responses to a demand for payment, the Director, 
TMA, or a designee, may refer the debt for offset from the debtor's pay 
account pursuant to 37 U.S.C. 1007(c), as implemented by Volume 7A, 
Chapter 50 and Volume 7B, Chapter 28 of the DoDFMR. Collection from a 
Federal employee may be effected through salary offset under 5 U.S.C. 
5514.
    (A) For collections by salary offset the Director, TMA, or 
designee, will issue written notification, as required by 5 CFR 
550.1104(d) at least 30 days before any offsets are taken. In addition, 
the notification will advise the employee that if he or she retires, 
resigns or his or her employment ends before collection of the debt is 
completed, collection may be made from subsequent payments of any 
nature due from the United States (e.g., final salary payment, lump-sum 
leave under 31 U.S.C. 3716 due the employee as of date of separation.) 
A debtor's involuntary payment of all or part of a debt being collected 
will not be construed as a waiver of any rights the debtor may have 
under 5 U.S.C. 5514 or any other provision of contract or law, unless 
there are statutory or contractual provisions to the contrary or the 
employee's paying agency is directed by an administrative or judicial 
order to refund amounts deducted from his or her current pay. No 
interest will be paid on amounts waived or determined not to be owed 
unless there are statutory or contractual provisions to the contrary.
    (B) Petition for hearing. The notice of the proposed offset will 
advise the debtor of his or her right to petition for a hearing. The 
petition for hearing must be signed by the debtor or his or her 
representative and must state whether he or she is contesting debt 
validity, debt amount and/or the terms of the proposed offset schedule. 
It must explain with reasonable specificity all the facts, evidence and 
witnesses, if any (in the case of an oral hearing and a summary of 
their anticipated testimony), which the debtor believes support his or 
her position, and include any supporting documentation. If contesting 
the terms of the proposed offset schedule, the debtor must provide 
financial information including a completed Department of Justice 
Financial Statement of Debtor form (OBD-500 or other form prescribed by 
DOJ), including specific details concerning income and expenses of the 
employee, his or her spouse and dependents for 1-year period preceding 
the debt notification and projected income and expenses for the 
proposed offset period and a statement of the reason why the debtor 
believes the salary offset schedule will impose extreme financial 
hardship. Upon receipt of the petition for hearing, the Director, TMA, 
or a designee, will complete reconsideration. If the Director, TMA, or 
a designee determines that the debt amount is not owed, that a less 
amount is owed, or that the terms of the employee's proposed offset 
schedule are acceptable, it will advise the debtor and request that the 
employee accept the results of the reconsideration in lieu of a 
hearing. If the employee declines to accept the results of 
reconsideration in lieu of a hearing, the debtor will be afforded a 
hearing. Ordinarily, a petition for hearing and required submissions 
that are not timely filed, shall be accepted after expiration of the 
deadline provided in the notice of the proposed offset, only when the 
debtor can demonstrate to the Director, TMA, or a designee, that the 
timely filing of the request was not feasible due to extraordinary 
circumstances over which the appealing party had no practical control 
or because of failure to receive notice of the time limit (unless he or 
she was otherwise aware of it). Each request for an exception to the 
timely filing requirement will be considered on its own merits. The 
decision of the Director, TMA, or a designee, on a request for an 
exception to the timely filing requirement shall be final.
    (C) Extreme financial hardship. The maximum authorized amount that 
may be collected through involuntary salary offset is the lesser of 15 
percent of the employee's disposable pay or the full amount of the 
debt. An employee who has petitioned for a hearing may assert that the 
maximum allowable rate of involuntary offset produces extreme

[[Page 72313]]

financial hardship. An offset produces an extreme financial hardship if 
the offset prevents the employee from meeting the costs necessarily 
incurred for the essential expenses of the employee, employee's spouse 
and dependents. These essential expenses include costs incurred for 
food, housing, necessary public utilities, clothing, transportation and 
medical care. In determining whether the offset would prevent the 
employee from meeting the essential expenses identified above, the 
following shall be considered:
    (1) Income from all sources of the employee, the employee's spouse, 
and dependents;
    (2) The extent to which assets of the employee, employee's spouse 
and dependents are available to meet the offset and essential 
subsistence expenses;
    (3) Whether these essential subsistence expenses have been 
minimized to the greatest extent possible;
    (4) The extent to which the employee or the employee's spouse can 
borrow money to meet the offset and other essential expenses; and
    (5) The extent to which the employee and the employee's spouse and 
dependents have other exceptional expenses that should be taken into 
account and whether these expenses have been minimized.
    (D) Form and content of hearings. The resolution of recoupment 
claims rarely involves issues of credibility or veracity and a review 
of the written record is ordinarily an adequate means to determine the 
validity or amount of the debt and/or the terms of a proposed offset 
schedule. The Director, TMA, or a designee, will determine whether an 
oral hearing is required. A debtor who has petitioned for a hearing, 
but who is not entitled to an oral hearing will be given an 
administrative hearing, based on the written documentation submitted by 
the debtor and the Director, TMA, or a designee. If the Director, TMA, 
or a designee, determines that the debtor should be afforded the 
opportunity for an oral hearing, the debtor may elect to have a hearing 
based on the written record in lieu of an oral hearing. The Director, 
TMA, or a designee, will provide the debtor (or his representative) 
notification of the time, date and location of the oral hearing to be 
held if the debtor has been afforded an oral hearing. Copies of records 
documenting the debt will be provided to the debtor or his 
representative (if they have not been previously provided), at least 3 
calendar days prior to the date of the oral hearing. At oral hearings, 
the only evidence permitted, except oral testimony, will be that which 
was previously submitted as pre-hearing submissions. At oral hearings, 
the debtor may not raise any issues not previously raised with TMA. In 
the absence of good cause shown, a debtor who fails to appear at an 
oral hearing will be deemed to have waived the right to a hearing and 
salary offset may be initiated.
    (E) Costs for attendance at oral hearings. Debtors and their 
witnesses will bear their own costs for attendance at oral hearings.
    (F) Hearing official's decision. The Hearing Official's decision 
will be in writing and will identify the documentation reviewed. It 
will indicate the amount of debt that he or she determined is valid and 
shall state the amount of the offset and the estimated duration of the 
offset. The determination of a hearing official designated under this 
section is considered an official certification regarding the existence 
and amount of the debt and/or the terms of the proposed offset schedule 
for the purposes of executing salary offset under 5 U.S.C. 5514. The 
Hearing Official's decision must be issued at the earliest practical 
date, but not later than 60 days from the date the petition for hearing 
is received by the Office of General Counsel, TMA, unless the debtor 
requests, and the Hearing Official grants a delay in the proceedings. 
If a hearing official determines that the debt may not be collected by 
salary offset, but the Director, TMA, or a designee, finds the debt is 
still valid, the Director, TMA or a designee, may seek collection 
through other means, including but not limited to, offset from other 
payments due from the United States.
    (viii) RESERVED
    (ix) Collection of installments. Debts, including interest, penalty 
and administrative costs shall be collected in one lump sum whenever 
possible. However, when the debtor is financially unable to pay the 
debt in one lump sum, the TRICARE contractor or the Director, TMA, or 
designee, may accept payment in installments. Debtors claiming that 
lump sum payment will create financial hardship may be required to 
complete a Department of Justice Financial Statement of Debtor form or 
provide other financial information that will permit TMA to verify such 
representations. TMA may also obtain credit reports to assess 
installment requests. Normally, debtors will make installment payments 
on a monthly basis. Installment payment shall bear a reasonable 
relationship to the size of the debt and the debtor's ability to pay. 
Except when a debtor can demonstrate financial hardship or another 
reasonable cause exists, installment payments should be sufficient in 
size and frequency to liquidate the debt in 3 years or less. (31 CFR 
901.8(b)). Normally, installment payments of $75 or less will not be 
accepted unless the debtor demonstrates financial hardship. Any 
installment agreement with a debtor in which the total amount of 
deferred installments will exceed $750, should normally include an 
executed promissory agreement. Copies of installment agreements will be 
retained in the contractor's or TMA, Office of General Counsel's files.
    (x) Interest, penalties, and administrative costs. Title 31 U.S.C. 
3717 and the Federal Claims Collection Standards, 31 CFR 901.9, require 
the assessment of interest, penalty and administrative costs on 
delinquent debts. Interest shall accrue from the date the initial debt 
notification is mailed to the debtor. The rate of interest assessed 
shall be the rate of the current value of funds to the United States 
Treasury (the Treasury tax and loan account rate). The collection of 
interest on the debt or any portion of the debt, which is paid within 
30 days after the date on which interest begins to accrue, shall be 
waived. The Director, TMA, or designee, may extend this 30-day period 
on a case-by-case basis, if it reasonably determines that such action 
is appropriate. The rate of interest as initially assessed shall remain 
fixed for the duration of the indebtedness; except that where the 
debtor has defaulted on a repayment agreement and seeks to enter into a 
new agreement, a new interest rate may be set which reflects the 
current value of funds to the Treasury at the time the new agreement is 
executed. Interest shall not be compounded; that is, interest shall not 
be charged on interest, penalties, or administrative costs required by 
this section. However, if a debtor defaults on a previous repayment 
agreement, charges that accrued but were not collected under the 
defaulted agreement, shall be added to the principal under the new 
repayment agreement. The collection of interest, penalties and 
administrative costs may be waived in whole or in part as a part of the 
compromise of a debt as provided in paragraph (g) of this section. In 
addition, the Director, TMA, or designee may waive in whole or in part, 
the collection of interest, penalties, or administrative costs assessed 
herein if he or she determines that collection would be against equity 
and good conscience and not in the best interest of the United States. 
Some situations in

[[Page 72314]]

which a waiver may be appropriate include:
    (A) Waiver of interest consistent with 31 CFR 903.2(c)(2) in 
connection with a suspension of collection when a TRICARE appeal is 
pending under Sec.  199.10 of this part where there is a substantial 
issue of fact in dispute.
    (B) Waiver of interest where the original debt arose through no 
fault or lack of good faith on the part of the debtor and the 
collection of interest would impose a financial hardship or burden on 
the debtor. Some examples in which such a waiver would be appropriate 
include: a debt arising when a TRICARE beneficiary in good faith files 
and is paid for a claim for medical services or supplies, which are 
later determined not to be covered benefits, or a debt arising when a 
TRICARE beneficiary is overpaid as the result of a calculation error on 
the part of the TRICARE contractor or TMA.
    (C) Waiver of interest where there has been an agreement to repay a 
debt in installments, there is no indication of fault or lack of good 
faith on the part of the debtor, and the amount of interest is so large 
in relation to the size of the installments that the debtor can 
reasonably afford to pay, that it is likely the debt will never be 
repaid in full. When a debt is paid in installments, the installment 
payments first will be applied to the payment of outstanding penalty 
and administrative cost charges, second, to accrued interest and then 
to principal. Administrative costs incurred as the result of a debt 
becoming delinquent (as defined in paragraph (f)(2)(iii) of this 
section) shall be assessed against a debtor. These administrative costs 
represent the additional costs incurred in processing and handling the 
debt because it became delinquent. The calculation of administrative 
costs should be based upon cost analysis establishing an average of 
actual additional costs incurred in processing and handling claims 
against other debtors in similar stages of delinquency. A penalty 
charge, not exceeding six percent a year, shall be assessed on the 
amount due on a debt that is delinquent for more than 90 days. This 
charge, which need not be calculated until the 91st day of delinquency, 
shall accrue from the date that the debt became delinquent.
    (xi) Referral to private collection agencies. TMA shall use 
government-wide debt collection contracts to obtain debt collection 
services provided by private contractors in accordance with 31 CFR 
901.5(b).
    (xii) Reporting delinquent debts to credit reporting agencies. 
Delinquent consumer debts shall be reported to credit reporting 
agencies. Delinquent debts are debts which are not paid or for which 
satisfactory payment arrangements are not made by the due date 
specified in the initial debt notification letter, or those for which 
the debtor has entered into a written payment agreement and installment 
payments are past due 30 days or longer. Such referrals shall comply 
with the Bankruptcy Code and the Privacy Act of 1974, 5 U.S.C. 552a, as 
amended. The provisions of the Privacy Act do not apply to credit 
bureaus (31 CFR 901.4(1)). There is no requirement to duplicate the 
notice and review opportunities before referring debts to credit 
bureaus. Debtors will be advised of the specific information to be 
transmitted (i.e., name, address, and taxpayer identification number, 
information about the debt). Procedures developed for such referrals 
must ensure that an accounting of the disclosures shall be kept which 
is available to the debtor; that the credit reporting agencies are 
provided with corrections and annotations of disagreements of the 
debtor; and that reasonable efforts are made to ensure that the 
information to be reported is accurate, complete, timely and relevant. 
When requested by a credit-reporting agency, verification of the 
information disclosed will be provided promptly. Once a claim has been 
reviewed and determined to be valid, a complete explanation of the 
claim will be given the debtor. When the claim is overdue, the 
individual will be notified in writing that payment is overdue; that 
within not less than 60 days, disclosure of the claim shall be made to 
a consumer reporting agency unless satisfactory payment arrangements 
are made, or unless the debtor requests an administrative review and 
demonstrates some basis on which the debt is legitimately disputed; and 
of the specific information to be disclosed to the consumer reporting 
agency. The information to be disclosed to the credit reporting agency 
will be limited to information necessary to establish the identity of 
the debtor, including name, address and taxpayer identification number; 
the amount, status and history of the claim; and the agency or program 
under which the claim arose. Reasonable action will be taken to locate 
an individual for whom a current address is not available. The 
requirements of this section do not apply to commercial debts, although 
commercial debts shall be reported to commercial credit bureaus. The 
Department of the Treasury will report debts transferred to it for 
collection to credit reporting agencies on behalf of the Director, TMA, 
or a designee.
    (xiii) Use and disclosure of mailing addresses. In attempting to 
locate a debtor in order to collect or compromise a debt under this 
section, the Director, TMA, or a designee, may send a written request 
to the Secretary of the Treasury, or a designee, for current address 
information from records of the Internal Revenue Service. TMA may 
disclose mailing addresses obtained under this authority to other 
agencies and to collection agencies for collection purposes.
    (g) Compromise, suspension or termination of collection actions 
arising under the Federal Claims Collection Act--(1) Basic 
considerations. Federal claims against the debtor and in favor of the 
United States arising out of the administration of TRICARE may be 
compromised or collection action taken thereon may be suspended or 
terminated in compliance with the Federal Claims Collection Act, 31 
U.S.C. 3711, as implemented by the Federal Claims Collection Standards, 
31 CFR parts 900-904. The provisions concerning compromise, suspension 
or termination of collection activity pursuant to 31 U.S.C. 3711 apply 
to debts, which do not exceed $100,000 or any higher amount authorized 
by the Attorney General, exclusive of interest, penalties, and 
administrative costs, after deducting the amount of partial payments or 
collections, if any. If, after deducting the amount of any partial 
payments or collections, the principal amount of a debt exceeds 
$100,000, or any higher amount authorized by the Attorney General, 
exclusive of interest, penalties and administrative costs, the 
authority to suspend or terminate rests solely with the DOJ.
    (2) Authority. TRICARE contractors are not authorized to compromise 
or to suspend or terminate collection action on TRICARE claims. Only 
the Director, TMA, or designee or Uniformed Services claims officers 
acting under the provisions of their own regulations are so authorized.
    (3) Basis for compromise. A compromise should be for an amount that 
bears a reasonable relation to the amount that can be recovered by 
enforced collection procedures, with regard to the exemptions available 
to the debtor and the time collection will take. A claim may be 
compromised hereunder if the government cannot collect the full amount 
if:
    (i) The debtor or the estate of a debtor does not have the present 
or prospective ability to pay the full amount within a reasonable time;

[[Page 72315]]

    (ii) The cost of collecting the claim does not justify enforced 
collection of the full amount; or
    (iii) The government is unable to enforce collection of the full 
amount within a reasonable time by enforced collection proceedings; or
    (iv) There is significant doubt concerning the Government's ability 
to prove its case in court for the full amount claimed; or
    (v) The cost of collecting the claim does not justify enforced 
collection of the full amount.
    (4) Basis for suspension. Collection action may be suspended for 
the following reasons if future collection action may be sufficiently 
productive to justify periodic review and action on the claim, 
considering its size and the amount, which may be realized thereon:
    (i) The debtor cannot be located; or
    (ii) The debtor's financial condition is expected to improve; or
    (iii) The debtor is unable to make payments on the government's 
claim or effect a compromise at the time, but the debtor's future 
prospects justify retention of the claim for periodic review and action 
and;
    (A) The applicable statute of limitations has been tolled or 
started running anew; or
    (B) Future collections can be effected by administrative offset, 
notwithstanding the expiration of the applicable statute of limitations 
for litigation of claims with due regard to the 10-year limitation for 
administrative offset under 31 U.S.C. 3716(e)(1); or
    (C) The debtor agrees to pay interest on the amount of the debt on 
which collection action will be temporarily suspended and such 
temporary suspension is likely to enhance the debtor's ability fully to 
pay the principal amount of the debt with interest at a later date.
    (iv) Consideration may be given by the Director, TMA, or designee 
to suspend collection action pending action on a request for a review 
of the government's claim against the debtor or pending an 
administrative review under Sec.  199.10 of this part of any TRICARE 
claim or claims directly involved in the government's claim against the 
debtor. Suspension under this paragraph will be made on a case-by-case 
basis as to whether:
    (A) There is a reasonable possibility that the debt (in whole or in 
part) will be found not owing from the debtor;
    (B) The Government's interest would be protected if suspension were 
granted by reasonable assurance that the debt would be recovered if the 
debtor does not prevail; and
    (C) Collection of the debt will cause undue hardship.
    (5) Collection action may be terminated for one or more of the 
following reasons:
    (i) TMA cannot collect or enforce collection of any substantial 
amount through its own efforts or the efforts of others, including 
consideration of the judicial remedies available to the government, the 
debtor's future financial prospects, and the exemptions available to 
the debtor under state and federal law;
    (ii) The debtor cannot be located, and either;
    (iii) The costs of collection are anticipated to exceed the amount 
recoverable; or
    (iv) It is determined that the debt is legally without merit or 
enforcement of the debt is barred by any applicable statute of 
limitations; or
    (v) The debt cannot be substantiated; or
    (vi) The debt against the debtor has been discharged in bankruptcy. 
Collection activity may be continued subject to the provisions of the 
Bankruptcy Code, such as collection of any payments provided under a 
plan of reorganization or in cases when TMA did not receive notice of 
the bankruptcy proceedings.
    (6) In determining whether the debt should be compromised, 
suspended or terminated, the responsible TMA collection authority will 
consider the following factors:
    (i) Age and health of the debtor; present and potential income; 
inheritance prospects; the possibility that assets have been concealed 
or improperly transferred by the debtor; and the availability of assets 
or income which may be realized upon by enforced collection 
proceedings;
    (ii) Applicability of exemptions available to a debtor under state 
or federal law;
    (iii) Uncertainty as to the price which collateral or other 
property may bring at a forced sale;
    (iv) The probability of proving the claim in court because of legal 
issues involved or because of a bona fide dispute of the facts; the 
probability of full or partial recovery; the availability of necessary 
evidence and related pragmatic considerations. Debtors may be required 
to provide a completed Department of Justice Financial Statement of 
Debtor form (OBD-500 or such other form that DOJ shall prescribe) or 
other financial information that will permit TMA to verify debtors' 
representations. TMA may obtain credit reports or other financial 
information to enable it independently to verify debtors' 
representations.
    (7) Payment of compromised claims--(i) Time and manner. Compromised 
claims are to be paid in one lump sum whenever possible. However, if 
installment payments of a compromised claim are necessary, a legally 
enforceable compromise agreement must be obtained. Payment of the 
amount that TMA has agreed to accept as a compromise in full settlement 
of a TRICARE claim must be made within the time and in the manner 
prescribed in the compromise agreement. Any such compromised amount is 
not settled until full payment of the compromised amount has been made 
within the time and manner prescribed. Compromise agreements must 
provide for the reinstatement of the prior indebtedness, less sums paid 
thereon, and acceleration of the balance due upon default in the 
payment of any installment.
    (ii) Failure to pay the compromised amount. Failure of any debtor 
to make payment as provided in the compromise agreement will have the 
effect of reinstating the full amount of the original claim, less any 
amounts paid prior to default.
    (iii) Effect of compromise, waiver, suspension or termination of 
collection action. Pursuant to the Internal Revenue Code, 26 U.S.C. 
6050P, compromises and terminations of undisputed debts totaling $600 
or more for the year will be reported to the Internal Revenue Service 
in the manner prescribed. Amounts, other than those discharged in 
bankruptcy, will be included in the debtor's gross income for that 
year. Any action taken under paragraph (g) of this section regarding 
the compromise of a federal claim, or waiver or suspension or 
termination of collection action on a federal claim is not an initial 
determination for the purposes of the appeal procedures in Sec.  
199.10.
    (h) Referrals for collection--(1) Prompt referral. Federal claims 
of $2,500, exclusive of interest, penalties and administrative costs, 
or such other amount as the Attorney General shall from time to time 
prescribe on which collection action has been taken under the 
provisions of this section which cannot be collected or compromised or 
on which collection action cannot be suspended or terminated as 
provided herein, will be promptly referred to the Department of Justice 
for litigation in accordance with 31 CFR part 904. Such referrals shall 
be made as early as possible consistent with aggressive collection 
action made by TRICARE contractors and TMA. Referral will be made with 
sufficient time to bring timely suit against the debtor. Referral

[[Page 72316]]

shall be made by submission of a completed Claims Collection Litigation 
Report (CCLR), accompanied by a signed Certificate of Indebtedness. 
Claims of less than the minimum amount shall not be referred unless 
litigation to collect such smaller claims is important to ensure 
compliance with TRICARE's policies or programs; the claim is being 
referred solely for the purpose of securing a judgment against the 
debtor, which will be filed as a lien against the debtor's property 
pursuant to 28 U.S.C. 3201 and returned to the referring office for 
enforcement; or the debtor has the clear ability to pay the claim and 
the Government effectively can enforce payment, with due regard for the 
exemptions available to the debtor under state and Federal law and 
judicial remedies available to the Government.
    (2) Preservation of evidence. The Director, TMA, or a designee will 
take such action as is necessary to ensure that all files, records and 
exhibits on claims referred, hereunder, are properly preserved.
    (i) Claims involving indication of fraud, filing of false claims or 
misrepresentation. Any case in which there is an indication of fraud, 
the filing of a false claim or misrepresentation on the part of the 
debtor or any party having an interest in the claim, shall be promptly 
referred to the Director, TMA, or designee. The Director, TMA, or a 
designee, will investigate and evaluate the case and either refers the 
case to an appropriate investigative law enforcement agency or return 
the claim for other appropriate administrative action, including 
collection action under this section. Payment on all TRICARE 
beneficiary or provider claims in which fraud, filing false claims or 
misrepresentation is suspected will be suspended until the Director, 
TMA, or designee, authorizes payment or denial of the claims. 
Collection action on all claims in which a suspicion of fraud, 
misrepresentation or filing false claims arises, will be suspended 
pending referral to the appropriate law enforcement agencies by the 
Director, TMA, or a designee. Only the Department of Justice has 
authority to compromise, suspend or terminate collection of such debts.

    Dated: December 14, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E7-24707 Filed 12-19-07; 8:45 am]
BILLING CODE 5001-06-P