[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Proposed Rules]
[Pages 58204-58206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23765]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2011-HA-0058; RIN 0720-AB51]


TRICARE; Changes Included in the National Defense Authorization 
Act for Fiscal Year 2010; Constructive Eligibility for TRICARE Benefits 
of Certain Persons Otherwise Ineligible Under Retroactive Determination 
of Entitlement to Medicare Part A Hospital Insurance Benefits

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department is publishing this proposed rule to implement 
section 706 of the National Defense Authorization Act (NDAA) for Fiscal 
Year 2010, Public Law 111-84. Specifically section 706 exempts TRICARE 
beneficiaries under the age of 65 who become disabled from the 
requirement to enroll in Medicare Part B for the retroactive months of 
entitlement to Medicare Part A in order to maintain TRICARE coverage. 
This statutory amendment and proposed rule only impact eligibility for 
the period in which the beneficiary's disability determination is 
pending before the Social Security Administration. Eligible 
beneficiaries would still be required to enroll in Medicare Part B in 
order to maintain their TRICARE coverage for future months, but would 
be considered to have coverage under the TRICARE program for the months 
retroactive to their entitlement to Medicare Part A. This proposed rule 
also amends the eligibility section of the TRICARE regulation to more 
clearly address reinstatement of TRICARE eligibility following a gap in 
coverage due to lack of enrollment in Medicare Part B.

DATES: Written comments received at the address indicated below by 
November 21, 2011 will be accepted.

ADDRESSES: You may submit comments, identified by docket number or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
    The Web site http://www.regulations.gov. Follow the instructions 
for submitting comments.
    Mail: Federal Docket Management System Office, 4800 Mark Center 
Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
    Instructions: All submissions received must include the agency name 
and docket number or 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://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Anne Breslin, TRICARE Management 
Activity (TMA), TRICARE Operations Branch, telephone (703) 681-0039.

SUPPLEMENTARY INFORMATION: Prior to the enactment of section 706 of the 
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84), 10 U.S.C. 1086(d) provided that a person who would otherwise 
receive benefits under section 1086 who is entitled to Medicare Part A 
hospital insurance is not eligible for TRICARE unless the individual is 
enrolled in Medicare Part B. When a TRICARE beneficiary becomes 
eligible for Medicare, Medicare becomes the primary payer and TRICARE 
is the secondary payer. Retroactive Medicare eligibility determinations 
therefore caused DoD and Medicare to reprocess claims. Section 706 of 
the Fiscal Year 2010 National Defense Authorization Act amended 10 
U.S.C. 1086(d) to exempt TRICARE beneficiaries under the age of 65 who 
became Medicare eligible due to a retroactive disability determination 
from the requirement to enroll in Medicare Part B for the retroactive 
months of entitlement to Medicare Part A in order to maintain TRICARE 
coverage. This statutory amendment became effective upon enactment of 
the Fiscal Year 2010 National Defense Authorization Act on October 28, 
2009. Prior to this amendment, beneficiaries who did not purchase 
Medicare Part B to cover the retroactive period lost their TRICARE 
eligibility during that period of time. As a result, beneficiaries and 
providers were then subject to TRICARE

[[Page 58205]]

recoupment action for care provided during the period of retroactive 
disability. Pursuant to this amendment, TRICARE remains first payer for 
any claims filed during the retroactive months and disabled TRICARE 
beneficiaries are relieved of the financial burden of making 
retroactive payments to avoid a gap in coverage. This proposed rule 
will amend the Code of Federal Regulations to conform to current 
statury authority regarding TRICARE eligibility.
    Additionally, due to an earlier administrative omission, this 
proposed rule also amends 32 CFR 199.3 to more clearly address 
reinstatement of TRICARE eligibility following a gap in coverage due to 
lack of enrollment in Part B. While most TRICARE beneficiaries who 
become eligible for Medicare Part A maintain TRICARE coverage through 
prompt acceptance of Part B coverage, there are a number of 
beneficiaries that for one reason or another decline Part B and lose 
their TRICARE eligibility. For those individuals, they can have that 
eligibility reinstated at a later date if they re-enroll in Part B. 
This proposed rule amends the section on reinstatement of TRICARE 
eligibility to include beneficiaries who elect to enroll in Medicare 
Part B following a gap in TRICARE coverage.
    All comments will be carefully considered. A discussion of the 
major issues received by public comments will be included with the 
issuance of the final rule.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review''; Executive 
Order 13563. ``Improving Regulation and Regulatory Review''; and Public 
Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    Executive Orders 12866 and 13563 require 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. 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 rule is not subject to any of these requirements.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511)

    This rule will not impose additional information collection 
requirements on the public. OMB previously cleared the collection 
requirements under OMB Control Number 0704-0364.

Executive Order 13132, ``Federalism,''

    We have examined the impact(s) of the rule under Executive Order 
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 the various levels of 
government, therefore, consultation with State and local officials is 
not required.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    This rule does not contain unfunded mandates. It does not contain a 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

List of Subjects in 32 CFR Part 199

    Claims, Dental health, Health care, Health insurance, Individuals 
with disabilities, 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; chapter 55 of 10 U.S.C.

    2. Section 199.3 is amended by:
    a. Adding paragraph (f)(2)(iii);
    b. Revising paragraph (f)(3)(ix)(C); and
    c. Adding paragraph (g)(3) to read as follows:


Sec.  199.3  Eligibility.

* * * * *
    (f) * * *
    (2) * * *
    (iii) Attainment of entitlement to hospital insurance benefits 
(Part A) under Medicare except as provided in paragraphs (b)(3), 
(f)(3)(vii), (f)(3)(viii) and (f)(3)(ix) of this section.
    (3) * * *
    (ix) * * *
    (C) The individual is enrolled in Part B of Medicare except that in 
the case of a retroactive determination of entitlement to Medicare Part 
A hospital insurance benefits for a person under 65 years of age there 
is no requirement to enroll in Medicare Part B from the Medicare Part A 
entitlement date until the issuance of such retroactive determination; 
and
* * * * *
    (g) * * *
    (3) Enrollment in Medicare Part B. For individuals whose CHAMPUS 
eligibility has terminated pursuant to paragraph (f)(2)(iii) or 
(f)(3)(vi) of this section due to beneficiary action to decline Part B 
of Medicare, CHAMPUS eligibility resumes, effective on the date 
Medicare Part B coverage begins, if the person subsequently enrolls in 
Medicare Part B and the person is otherwise still eligible.
    3. Section 199.8 is amended as follows:
    a. Revise paragraph (d)(1)(i);
    b. Redesignate (d)(1)(vi), (d)(1)(vii) and (d)(1)(viii) as 
(d)(1)(vii), (d)(1)(viii), and (d)(1)(ix) respectively; and
    c. Add the following new paragraph (d)(1)(vi).


Sec.  199.8  Double Coverage.

* * * * *
    (d) * * *
    (1) * * *
    (i) General rule. In any case in which a beneficiary is eligible 
for both Medicare and CHAMPUS received medical or dental care for which 
payment may be made under Medicare and CHAMPUS, Medicare is always the 
primary payer except in the case of retroactive determinations of 
disability as provided in paragraph (d)(1)(v) of this section. For 
dependents of active duty members, payment will be determined in 
accordance to paragraph (c) of this section. For all other 
beneficiaries eligible for Medicare, the amount payable under CHAMPUS 
shall be the amount of actual out-of-pocket costs incurred by the 
beneficiary for that care over the sum of the amount paid for that care 
under Medicare and the total of all amounts paid or payable by third 
party payers other than Medicare.
* * * * *
    (vi) Retroactive determinations of disability. In circumstances 
involving determinations of retroactive Medicare Part A entitlement for 
persons under 65 years of age, Medicare becomes the primary payer 
effective as of the date of issuance of the retroactive determination 
by the Social Security Administration. For care and services rendered 
prior to issuance of the retroactive determination, the CHAMPUS payment 
will be determined consistent with paragraph (d)(1)(iii)(B) of this 
section notwithstanding the beneficiary's retroactive entitlement for 
Medicare Part A during that period.

[[Page 58206]]

    4. Section 199.11 is amended as follows:
    a. Revising paragraph (f)(3) to read as follows:


Sec.  199.11  Overpayments Recovery.

* * * * *
    (f) * * *
    (3) 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. Nothing in this section shall be construed to require 
recoupment from any sponsor, beneficiary, provider, supplier and/or the 
Medicare Program under Title XVIII of the Social Security Act in the 
event of a retroactive determination of entitlement to SSDI and 
Medicare Part A coverage made by the Social Security Administration as 
discussed in section 199.8(d) of this part.

    Dated: August 24, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-23765 Filed 9-19-11; 8:45 am]
BILLING CODE 5001-06-P