(d) Special considerations.
(1) CHAMPUS and Medicare--
(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.
(ii) Payment limit.
The total CHAMPUS
amount payable for care under paragraph (d)(1)(i) of this section
may not exceed the total amount that would be paid under CHAMPUS
if payment for that care was made solely under CHAMPUS.
(iii) Application
of general rule.
In applying the general rule under
paragraph (d)(1)(i) of this section, the first determination will
be whether payment may be made under Medicare. For this purpose, Medicare
exclusions, conditions, and limitations will be based for the determination.
(A) For
items or services or portions or segments of items or services for
which payment may be made under Medicare, the CHAMPUS payment will
be the amount of the beneficiary’s actual out of pocket liability,
minus the amount payable by Medicare, also minus amount payable
by other third party payers, subject to the limit under paragraph
(d)(1)(ii) of this section.
(B) For items or services
or segments of items or services for which no payment may be made
under Medicare, the CHAMPUS payment will be the same as it would
be for a CHAMPUS eligible retiree, dependent, or survivor beneficiary
who is not Medicare eligible.
(C) For
Medicare beneficiaries who enroll in Medicare Part D, the Part D
plan is primary and TRICARE is secondary payer. TRICARE will pay
the beneficiary's out-of-pocket costs for Medicare and TRICARE covered
medications, including the initial deductible and Medicare Part
D cost-sharing amounts up to the initial coverage limit of the Medicare
Part D plan. The Medicare Part D plan, although the primary plan,
pays nothing during any coverage gap period. When the beneficiary
becomes responsible for 100 percent of the drug costs under a Part
D coverage gap period, the beneficiary may use the TRICARE pharmacy
benefit as the secondary payer. TRICARE will cost share during the
coverage gap to the same extent as it does under Section 199.21
for beneficiaries not enrolled in Medicare Part D plan. The beneficiary
is responsible for the applicable TRICARE pharmacy cost-sharing
amounts (and deductible if using a retail non-network pharmacy).
Part D plan sponsors may offer a defined standard benefit, or an
actuarially equivalent standard benefit. Part D plan sponsors may
also offer alternative prescription drug coverage, which may consist
of basic alternative coverage or enhanced alternative coverage. Therefore
depending on the Part D plan that a beneficiary chooses, monthly
premiums, coinsurances, co-pays, deductibles and benefit design
may vary from plan to plan. TRICARE payment of the beneficiary’s
initial deductible, if any, along with payment of any beneficiary
cost share count towards total spending on drugs, and may have the
effect of moving the beneficiary more quickly through the initial
phase of coverage to the coverage gap. Irrespective of the phase
of the benefit in which a beneficiary may be, if a beneficiary is
accessing a pharmacy under contract with his or her Part D plan, the
provider will bill the Part D plan first, then TRICARE. If the beneficiary
chooses to use his or her TRICARE pharmacy benefit during a coverage
gap under Part D, the beneficiary may do so, but the beneficiary
is responsible for the TRICARE cost-shares.
(iv) Examples of
applications of general rule.
The
following examples are illustrative. They are not all-inclusive.
(A) In
the case of a Medicare-eligible beneficiary receiving typical physician
office visit services, Medicare payment generally will be made.
CHAMPUS payment will be determined consistent with paragraph (d)(1)(iii)(A)
of this section.
(B) In the case of
a Medicare-eligible beneficiary residing and receiving medical care
overseas, Medicare payment generally may not be made. CHAMPUS payment
will be determined consistent with paragraph (d)(1)(iii)(B) of this
section.
(C) In the case of
a Medicare-eligible beneficiary receiving skilled nursing facility
services a portion of which is payable by Medicare (such as during
the first 100 days) and a portion of which is not payable by Medicare
(such as after 100 days), CHAMPUS payment for the first portion
will be determined consistent with paragraph (d)(1)(iii)(A) of this
section and for the second portion consistent with paragraph (d)(1)(iii)(B)
of this section.
(v) Application of catastrophic cap.
Only in
cases in which CHAMPUS payment is determined consistent with paragraph
(d)(1)(iii)(B) of this section, actual beneficiary out of pocket
liability remaining after CHAMPUS payments will be counted for purposes
of the annual catastrophic loss protection, set forth under Sec.
199.4(f)(10). When a family has met the cap, CHAMPUS will pay allowable
amounts for remaining covered services through the end of that calendar
year.
(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.
(vii) Effect on enrollment
in Medicare Advantage Prescription Drug (MA-PD) plan.
In the
case of a beneficiary enrolled in a MA-PD plan who receives items
or services for which payment may be made under both the MA-PD plan
and CHAMPUS/TRICARE, a claim for the beneficiary’s normal out-of-pocket costs
under the MA-PD plan may be submitted for CHAMPUS/TRICARE payment.
However, consistent with paragraph (c)(4) of this section, out-of-pocket
costs do not include costs associated with unauthorized out-of-system
care or care otherwise obtained under circumstances that result
in a denial or limitation of coverage for care that would have been
covered or fully covered had the beneficiary met applicable requirements
and procedures. In such cases, the CHAMPUS/TRICARE amount payable
is limited to the amount that would have been paid if the beneficiary
had received care covered by the Medicare Advantage plan. If the
TRICARE-Medicare beneficiary enrolls in a MA-PD drug plan, it generally
will be governed by Medicare Part C, although plans that offer a
prescription drug benefit must comply with Medicare Part D rules.
The beneficiary has to pay the plan’s monthly premiums and obtain
all medical care and prescription drugs through the Medicare Advantage
plan before seeking CHAMPUS/TRICARE payment. CHAMPUS/TRICARE payment
for such beneficiaries may not exceed that which would be payable
for a beneficiary under paragraph (d)(1)(iii)(C) of this section.
(viii) Effect of
other double coverage plans, including medigap plans.
CHAMPUS is second
payer to other third-party payers of health insurance, including
Medicare supplemental plans.
(ix) Effect of employer-provided
insurance.
In the
case of individuals with health insurance due to their current employment
status, the employer insurance plan shall be first payer, Medicare
shall be the second payer, and CHAMPUS shall be the tertiary payer.
(3) TRICARE and Workers’ Compensation.
TRICARE benefits
are not payable for a work-related illness or injury that is covered
under a workers’ compensation program. Pursuant to paragraph (c)(2)
of this section, however, the Director, TRICARE Management Activity,
or a designee, may authorize payment of a claim involving a work-related
illness or injury covered under a workers’ compensation program
in advance of adjudication and payment of the workers’ compensation
claim and then recover, under Sec. 199.12, the TRICARE costs of
health care incurred on behalf of the covered beneficiary.
(6) Prohibition
against financial and other incentives not to enroll in a group
health plan--
(i) General rule.
Under 10 U.S.C.
1097c, an employer or other entity is prohibited from offering TRICARE beneficiaries
financial or other benefits as incentives not to enroll in, or to
terminate enrollment in, a group health plan that is or would be
primary to TRICARE. This prohibition applies in the same manner as
section 1862(b)(3)(C) of the Social Security Act applies to incentives
for a Medicare-eligible employee not to enroll in a group health
plan that is or would be primary to Medicare.
(ii) Application
of general rule.
The
prohibition in paragraph (d)(6)(i) of this section precludes offering to
TRICARE beneficiaries an alternative to the employer primary plan
unless:
(A) The beneficiary has primary coverage other than
TRICARE; or
(B) The benefit is offered under a cafeteria plan
under section 125 of the Internal Revenue Code and is offered to
all similarly situated employees, including non-TRICARE eligible
employees; or
(C) The benefit is offered under a cafeteria plan
under section 125 of the Internal Revenue Code and, although offered
only to TRICARE-eligible employees, the employer does not provide
any payment for the benefit nor receive any direct or indirect consideration
or compensation for offering the benefit; the employer’s only involvement
is providing the administrative support for the benefits under the cafeteria
plan, and the employee’s participation in the plan is completely
voluntary.
(iii) Documentation.
In the case
of a benefit excluded by paragraph (d)(6)(ii)(C) of this section
from the prohibition in paragraph (d)(6)(i) of this section, the
exclusion is dependent on the employer maintaining in the employer’s
files a certification signed by the employer that the conditions
described in paragraph (d)(6)(ii)(C) of this section are met, and,
upon request of the Department of Defense, providing a copy of that
certification to the Department of Defense.
(iv) Remedies and
penalties.
(A) Remedies
for violation of this paragraph (d)(6) include but are not limited
to remedies under the Federal Claims Collection Act, 31 U.S.C. 3701
et seq.
(B) Penalties for violation of this paragraph (d)(6)
include a civil monetary penalty of up to $5,000 for each violation.
The provisions of section 1128A of the Social Security Act, 42 U.S.C.
1320a-7a, (other than subsections (a) and (b)) apply to the civil
monetary penalty in the same manner as the provisions apply to a
penalty or proceeding under section 1128A.
(v) Definitions.
For the purposes
of this paragraph (d)(6):
(A) The term “employer” includes any State or unit
of local government and any employer that employs at least 20 employees.
(B) The term “group
health plan” means a group health plan as that term is defined in
section 5000(b)(1) of the Internal Revenue Code of 1986 without
regard to section 5000(d) of the Internal Revenue Code of 1986.
(C) The
term “similarly situated” means sharing common attributes, such
as part-time employees, or other bona fide employment-based classifications
consistent with the employer’s usual business practice. (Internal
Revenue Service regulations at 26 CFR 54.9802-1(d) may be used as
a reference for this purpose). However, in no event shall eligibility
for or entitlement to TRICARE (or ineligibility or non-entitlement
to TRICARE) be considered a bona fide employment-based classification.
(D) The term “TRICARE-eligible
employee” means a covered beneficiary under section 1086 of title 10,
United States Code, Chapter 55, entitled to health care benefits
under the TRICARE program.
(vi) Procedures.
The Departments
of Defense and Health and Human Services are authorized to enter into
agreements to further carry out this section.