[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38175-38177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15508]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

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


TRICARE; 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: Final rule.

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SUMMARY: The Department is publishing this final 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 final rule only impact eligibility for the 
period in which the beneficiary's disability determination is pending 
before the Social Security Administration. Eligible beneficiaries are 
still required to enroll in Medicare Part B in order to maintain their 
TRICARE coverage for future months, but are considered to have coverage 
under the TRICARE program for the retroactive months of their 
entitlement to Medicare Part A. This final 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: Effective Date: This final rule is effective July 27, 2012.

FOR FURTHER INFORMATION CONTACT: Ms. Anne Breslin, TRICARE Operations 
Branch, TRICARE Management Activity (TMA), 5111 Leesburg Pike, Suite 
810, Falls Church, VA 22041, telephone (703) 681-0039.

SUPPLEMENTARY INFORMATION: 

I. Background

    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 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 final rule amends the Code of Federal Regulations to 
conform to current statutory authority regarding TRICARE eligibility.
    Additionally, due to an earlier administrative omission, this final 
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

[[Page 38176]]

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 final 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.

II. Public Comments

    We provided a 60-day public comment period following publication of 
the Proposed Rule in the Federal Register (76 FR 58204-58206) on 
September 20, 2011. We received no public comments.

III. 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 final 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 amended as follows:

PART 199--[AMENDED]

0
1. The authority citation for part 199 continues to read as follows:

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

0
2. Section 199.3 is amended by:
0
a. Adding paragraph (f)(2)(iii);
0
b. Revising paragraph (f)(3)(ix)(C); and
0
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.

0
3. Section 199.8 is amended by:
0
a. Revising paragraph (d)(1)(i);
0
b. Redesignating paragraphs (d)(1)(vi), (d)(1)(vii) and (d)(1)(viii) as 
(d)(1)(vii), (d)(1)(viii), and (d)(1)(ix) respectively; and
0
c. Adding new paragraph (d)(1)(vi) to read as follows.


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.
* * * * *

0
4. Section 199.11 is amended by 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

[[Page 38177]]

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 Sec.  199.8(d) of this part.
* * * * *

    Dated: June 20, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-15508 Filed 6-26-12; 8:45 am]
BILLING CODE 5001-06-P