(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]