(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.