(a) General.
This section
deals with the right of the United States to recover from third-parties
the costs of medical care furnished to or paid on behalf of TRICARE
beneficiaries. These third-parties may be individuals or entities
that are liable for tort damages to the injured TRICARE beneficiary
or a liability insurance carrier covering the individual or entity.
These third-parties may also include other entities who are primarily
responsible to pay for the medical care provided to the injured
beneficiary by reason of an insurance policy, workers’ compensation
program or other source of primary payment. Authority.
(b) Third-party payers.
(1) This part implements
the provisions of 10 U.S.C. 1095b which, in general, allow the Secretary
of Defense to authorize certain TRICARE claims to be paid, even
though a third-party payer may be primary payer, with authority
to collect from the third-party payer the TRICARE costs incurred
on behalf of the beneficiary. (See Sec. 199.2 for definition of
“third-party payer.”) Therefore, 10 U.S.C. 1095b establishes the
statutory obligation of third-party payers to reimburse the United
States the costs incurred on behalf of TRICARE beneficiaries who
are also covered by the third-party payer’s plan.
(2) Federal Medical
Care Recovery Act.
(i) In general.
In many cases
covered by this section, the United States has a right to collect
under both 10 U.S.C. 1095b and the Federal Medical Care Recovery
Act (FMCRA), Public Law 87-693 (42 U.S.C. 2651 et. seq.).
In such cases, the authority is concurrent and the United States
may pursue collection under both statutory authorities.
(ii) Cases involving
tort liability.
In cases in which the right of the
United States to collect from an automobile liability insurance
carrier is premised on establishing some tort liability on some
third person, matters regarding the determination of such tort liability
shall be governed by the same substantive standards as would be
applied under the FMCRA including reliance on state law for determinations
regarding tort liability. In addition, the provisions of 28 CFR
part 43 (Department of Justice regulations pertaining to the FMCRA)
shall apply to claims made under the concurrent authority of the
FMCRA and 10 U.S.C. 1095b. All other matters and procedures concerning
the right of the United States to collect shall, if a claim is made
under the concurrent authority of the FMCRA and this section, be
governed by 10 U.S.C. 1095b and this part.
(c) Appealability.
This section
describes the procedures to be followed in the assertion and collection
of third-party recovery 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 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 a significant factual dispute.
For example, a TRICARE contractor may deny payment for services
that are determined to be excluded as TRICARE benefits because they are
found to be not medically necessary. In that event the TRICARE 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. If the care in question results from an accidental
injury and if the appeal results in a reversal of the initial determination
to deny the benefit, a third-party recovery claim may arise as a
result of the appeal decision to pay the benefit. However, in no
case is the decision to initiate such a claim itself appealable
under Sec. 199.10.
(d) Statutory obligation of third-party payer to
pay.
(1) Basic Rule.
Pursuant to
10 U.S.C. 1095b, when the Secretary of Defense authorizes certain
TRICARE claims to be paid, even though a third-party payer may be
primary payer (as specified under Sec. 199.8(c)(2)), the right to
collect from a third-party payer the TRICARE costs incurred on behalf
of the beneficiary is the same as exists for the United States to
collect from third-party payers the cost of care provided by a facility
of the uniformed services under 10 U.S.C. 1095 and part 220 of this
title. Therefore the obligation of a third-party payer to pay is
to the same extent that the beneficiary would be eligible to receive
reimbursement or indemnification from the third-party payer if the
beneficiary were to incur the costs on the beneficiary’s own behalf.
(2) Application of cost shares.
If the third-party
payer’s plan includes a requirement for a deductible or copayment
by the beneficiary of the plan, then the amount the United States
may collect from the third-party payer is the cost of care incurred
on behalf of the beneficiary less the appropriate deductible or
copayment amount.
(3) Claim from the United States exclusive.
The only way
for a third-party payer to satisfy its obligation under 10 U.S.C.
1095b is to pay the United States or authorized representative of
the United States. Payment by a third-party payer to the beneficiary
does not satisfy 10 U.S.C. 1095b.
(4) Assignment of benefits not necessary.
The obligation
of the third-party to pay is not dependent upon the beneficiary
executing an assignment of benefits to the United States.
(e) Exclusions impermissible.
(1) Statutory requirement.
With
the same right to collect from third-party payers as exists under
10 U.S.C. 1095(b), no provision of any third-party payer’s plan
having the effect of excluding from coverage or limiting payment
for certain care if that care is provided or paid by the United
States shall operate to prevent collection by the United States.
(2) Regulatory application.
No provision
of any third-party payer’s plan or program purporting to have the
effect of excluding or limiting payment for certain care that would
not be given such effect under the standards established in part
220 of this title to implement 10 U.S.C. 1095 shall operate to exclude
or limit payment under 10 U.S.C. 1095b or this section.
(f) Records available.
When
requested, TRICARE contractors or other representatives of the United States
shall make available to representatives of any third-party payer
from which the United States seeks payment under 10 U.S.C. 1095b,
for inspection and review, appropriate health care records (or copies
of such records) of individuals for whose care payment is sought.
Appropriate records which will be made available are records which
document that the TRICARE costs incurred on behalf of beneficiaries
which are the subject of the claims for payment under 10 U.S.C.
1095b were incurred as claimed and the health care service were
provided in a manner consistent with permissible terms and conditions
of the third-party payer’s plan. This is the sole purpose for which
patient care records will be made available. Records not needed
for this purpose will not be made available.
(g) Remedies.
Pursuant to
10 U.S.C. 1095b, when the Director, TRICARE Management Activity,
or a designee, authorizes certain TRICARE claims to be paid, even
though a third-party payer may be primary payer, the right to collect
from a third-party payer the TRICARE costs incurred on behalf of
the beneficiary is the same as exists for the United States to collect
from third-party payers the cost of care provided by a facility
of the uniformed services under 10 U.S.C. 1095.
(1) This includes the
authority under 10 U.S.C. 1095(e)(1) for the United States to institute
and prosecute legal proceedings against a third-party payer to enforce
a right of the United States under 10 u.S.C. 1095b and this section.
(2) This also includes
the authority under 10 u.S.C. 1095(e)(2) for an authorized representative
of the United States to compromise, settle or waive a claim of the
United States under 10 U.S.C. 1095b and this section.
(3) The
authorities provided by the Federal Claims Collection Act of 1966,
as amended (31 U.S.C. 3701 et. seq.) and any implementing
regulations (including Sec. 199.11) regarding collection of indebtedness
due the United States shall also be available to effect collections
pursuant to 10 U.S.C. 1095b and this section.
(h) Obligations of
beneficiaries.
To insure
the expeditious and efficient processing of third-party payer claims,
any person furnished care and treatment under TRICARE, his or her
guardian, personal representative, counsel, estate, dependents or
survivors shall be required:
(1) To provide information
regarding coverage by a third-party payer plan and/or the circumstances surrounding
an injury to the patient as a conditional precedent of the processing
of a TRICARE claim involving possible third-party payer coverage.
(2) To furnish such
additional information as may be requested concerning the circumstances
giving rise to the injury or disease for which care and treatment
are being given and concerning any action instituted or to be instituted
by or against a third person; and,
(3) To cooperate in
the prosecution of all claims and actions by the United States against
such third person.
(i) Responsibility
for recovery.
The Director,
TRICARE Management Activity, or a designee, is responsible for insuring
that TRICARE claims arising under 10 U.S.C. 1095b and this section
(including claims involving the FMCRA) are properly referred to
and coordinated with designated claims authorities of the uniformed
services who shall assert and recover TRICARE costs incurred on
behalf of beneficiaries. Generally, claims arising under this section
will be processed as follows:
(1) Identification and referral.
In most
cases where civilian providers provide medical care and payment
for such care has been by a TRICARE contractor, initial identification
of potential third-party payers will be by the TRICARE contractor.
In such cases, the TRICARE contractor is responsible for conducting
a preliminary investigation and referring the case to designated
appropriate claims authorities of the Uniformed Services.
(2) Processing TRICARE
claims.
When
the TRICARE contractor initially identifies a claim as involving
a potential third-party payer, it shall request additional information
concerning the circumstances of the injury or disease and/or the
identify of any potential third-party payer from the beneficiary
or other responsible party unless adequate information is submitted
with the claim. The TRICARE claim will be suspended and no payment
issued pending receipt of the requested information. If the requested information
is not received, the claim will be denied. A TRICARE beneficiary
may expedite the processing of his or her TRICARE claim by submitting
appropriate information with the first claim for treatment of an
accidental injury. Third-party payer information normally is required
only once concerning any single accidental injury on episode of
care. Once the third-party payer information pertaining to a single
incident or episode of care is received, subsequent claims associated
with the same incident or episode of care may be processed to payment
in the usual manner. If, however, the requested third-party payer
information is not received, subsequent claims involving the same
incident or episode of care will be suspended or denied as stated
above.
(3) Ascertaining total potential liability.
It is essential
that the appropriate claims responsible for asserting the claim
against the third-party payer receive from the TRICARE contractor
a report of all amounts expended by the United States for care resulting
from the incident upon which potential liability in the third party
is based (including amounts paid by TRICARE for both inpatient and outpatient
care). Prior to assertion and final settlement of a claim, it will
be necessary for the responsible claims authority to secure from
the TRICARE contractor updated information to insure that all amounts
expended under TRICARE are included in the government’s claim. It
is equally important that information on future medical payments
be obtained through the investigative process and included as a
part of the government’s claim. No TRICARE-related claim will be
settled, compromised or waived without full consideration being
given to the possible future medical payment aspects of the individual
case.
(j) Reporting requirements.
Pursuant
to 10 U.S.C. 1079a, all refunds and other amounts collected in the
administration of TRICARE shall be credited to the appropriation
available for that program for the fiscal year in which the refund
or amount is collected. Therefore, the Department of Defense requires
an annual report stating the number and dollar amount of claims
asserted against, and the number and dollar amount of recoveries
from third-party payers (including FMCRA recoveries) arising from
the operation of the TRICARE. To facilitate the preparation of this
report and to maintain program integrity, the following reporting
requirements are established:
(1) TRICARE contractors.
Each TRICARE contractor shall submit
on or before January 31 of each year an annual report to the Director,
TRICARE Management Activity, or a designee, covering the 12 months of
the previous calendar year. This report shall contain, as a minimum,
the number and total dollar of cases of potential third-party payer/FMCRA
liability referred to uniformed services claims authorities for further
investigation and collection. These figures are to be itemized by
the states and uniformed services to which the cases are referred.
(2) Uniformed Services.
Each
uniformed service will submit to the Director, TRICARE Management Activity,
or designee, an annual report covering the 12 calendar months of
the previous year, setting forth, as a minimum, the number and total
dollar amount of cases involving TRICARE payments received from
TRICARE contractors, the number and dollar amount of cases involving
TRICARE payments received from other sources, and the number and
dollar amount of claims actually asserted against, and the dollar
amount of recoveries from, third-payment payers or under the FMCRA.
The report, itemized by state and foreign claims jurisdictions,
shall be provided no later than February 28 of each year.
(3) Implementation
of the reporting requirements.
The Director, TRICARE Management
Activity, or a designee shall issue guidance for implementation
of the reporting requirements prescribed by this section.
[68
FR 6619, Feb 10, 2003]