(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]