[Code of Federal Regulations]
[Title 32, Volume 2]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR199.8]

[Page 212-215]
 
                       TITLE 32--NATIONAL DEFENSE
 
        CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
 
PART 199_CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES 
 
Sec. 199.8  Double coverage.

    (a) Introduction. (1) In enacting TRICARE legislation, Congress 
clearly has intended that TRICARE be the secondary payer to all health 
benefit, insurance and third-party payer plans. 10 U.S.C. 1079(j)(1) 
specifically provides that a benefit may not be paid under a plan 
(CHAMPUS) covered by this section in the case of a person enrolled in, 
or covered by, any other insurance, medical service, or health plan, 
including any plan offered by a third-party payer (as defined in 10 
U.S.C. 1095(h)(1)) to the extent that the benefit is also a benefit 
under the other plan, except in the case of a plan administered under 
title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).
    (2) The provision in paragraph (a)(1) of this section is made 
applicable specifically to retired members, dependents, and survivors by 
10 U.S.C. 1086(g). The underlying intent, in addition to preventing 
waste of Federal resources, is to ensure that TRICARE beneficiaries 
receive maximum benefits while ensuring that the combined payments of 
TRICARE and other health and insurance plans do not exceed the total 
charges.
    (b) Double coverage plan. A double coverage plan is one of the 
following:
    (1) Insurance plan. An insurance plan is any plan or program that is 
designed to provide compensation or coverage for expenses incurred by a 
beneficiary for medical services and supplies. It includes plans or 
programs for which the beneficiary pays a premium to an issuing agent as 
well as those plans or programs to which the beneficiary is entitled as 
a result of employment or membership in, or association with, an 
organization or group.
    (2) Medical service or health plan. A medical service or health plan 
is any plan or program of an organized health care group, corporation, 
or other entity for the provision of health care to an individual from 
plan providers, both professional and institutional. It includes plans 
or programs for which the beneficiary pays a premium to an issuing agent 
as well as those plans or programs to which the beneficiary is entitled 
as a result of employment or membership in, or association with, an 
organization or group.
    (3) Third-party payer. A third-party payer means an entity that 
provides an insurance, medical service, or health plan by contract or 
agreement, including an automobile liability insurance or no-fault 
insurance carrier and a workers' compensation program or plan, and any 
other plan or program (e.g., homeowners insurance, etc.) that is 
designed to provide compensation or coverage for expenses incurred by a 
beneficiary for medical services or supplies. For purposes of the 
definition of ``third-party payer,'' an insurance, medical service or 
health plan includes a preferred provider organization, an insurance 
plan described as Medicare supplemental insurance, and a personal injury 
protection plan or medical payments benefit plan for personal injuries 
resulting from the operation of a motor vehicle.
    (4) Exceptions. Double coverage plans do not include:
    (i) Plans administered under title XIX of the Social Security Act 
(Medicaid);
    (ii) Coverage specifically designed to supplement CHAMPUS benefits 
(a health insurance policy or other health benefit plan that meets the 
definition and criteria under supplemental insurance plan as set forth 
in Sec. 199.2(b));
    (iii) Entitlement to receive care from Uniformed Services medical 
care facilities;
    (iv) Certain Federal Government programs, as prescribed by the 
Director,

[[Page 213]]

OCHAMPUS, that are designed to provide benefits to a distinct 
beneficiary population and for which entitlement does not derive from 
either premium payment of monetary contribution (for example, the Indian 
Health Service); or
    (v) State Victims of Crime Compensation Programs.
    (c) Application of double coverage provisions. CHAMPUS claims 
submitted for otherwise covered services or supplies and which involve 
double coverage shall be adjudicated as follows:
    (1) TRICARE last pay. For any claim that involves a double coverage 
plan as defined in paragraph (b) of this section, TRICARE shall be last 
pay except as may be authorized by the Director, TRICARE Management 
Activity, or a designee, pursuant to paragraph (c)(2) of this section. 
That is, TRICARE benefits may not be extended until all other double 
coverage plans have adjudicated the claim.
    (2) TRICARE advance payment. The Director, TRICARE Management 
Activity, or a designee, may authorize payment of a claim in advance of 
adjudication of the claim by a double coverage plan and recover, under 
Sec. 199.12, the TRICARE costs of health care incurred on behalf of the 
covered beneficiary under the following conditions:
    (i) The claim is submitted for health care services furnished to a 
covered beneficiary; and,
    (ii) The claim is identified as involving services for which a 
third-party payer, other than a primary medical insurer, may be liable.
    (3) Primary medical insurer. For purposes of paragraph (c)(2) of 
this section, a ``primary medical insurer'' is an insurance plan, 
medical service or health plan, or a third-party payer under this 
section, the primary or sole purpose of which is to provide or pay for 
health care services, supplies, or equipment. The term ``primary medical 
insurer'' does not include automobile liability insurance, no-fault 
insurance, workers' compensation program or plan, homeowners insurance, 
or any other similar third-party payer as may be designated by the 
Director, TRICARE Management Activity, or a designee, in any policy 
guidance or instructions issued in implementation of this Part.
    (4) Waiver of benefits. A CHAMPUS beneficiary may not elect to waive 
benefits under a double coverage plan and use CHAMPUS. Whenever double 
coverage exists, the provisions of this Section shall be applied.
    (5) Lack of payment by double coverage plan. Amounts that have been 
denied by a double coverage plan simply because a claim was not filed 
timely or because the beneficiary failed to meet some other requirement 
of coverage cannot be paid. If a statement from the double coverage plan 
as to how much that plan would have paid had the claim met the plan's 
requirements is provided to the CHAMPUS contractor, the claim can be 
processed as if the double coverage plan actually paid the amount shown 
on the statement. If no such statement is received, no payment from 
CHAMPUS is authorized.
    (6) Lack of payment by double coverage plan. Amounts that have been 
denied by a double coverage plan simply because a claim was not filed 
timely or because the beneficiary failed to meet some other requirement 
of coverage cannot be paid. If a statement from the double coverage plan 
as to how much that plan would have paid had the claim met the plan's 
requirements is provided to the CHAMPUS contractor, the claim can be 
processed as if the double coverage plan actually paid the amount shown 
on the statement. If no such statement is received, no payment from 
CHAMPUS is authorized.
    (d) Special considerations--(1) CHAMPUS and Medicare--(i) General 
rule. In any case in which a beneficiary eligible for both Medicare and 
CHAMPUS receives medical or dental care for which payment may be made 
under Medicare and CHAMPUS, Medicare is always the primary payer. 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 by CHAMPUS shall be the amount 
of the 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.

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    (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.
    (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 fiscal year.
    (vi) Effect of enrollment in Medicare+Choice plan. In the case of a 
beneficiary enrolled in a Medicare+Choice plan who receives items or 
services for which payment may be made under both the Medicare+Choice 
plan and CHAMPUS, a claim for the beneficiary's normal out-of-pocket 
costs under the Medicare+Choice plan may be submitted for CHAMPUS 
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 amount payable 
is limited to the amount that would have been paid if the beneficiary 
had received care covered by the Medicare+Choice plan.
    (vii) 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.
    (viii) 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.
    (2) CHAMPUS and Medicaid. Medicaid is not a double coverage plan. In 
any double coverage situation involving

[[Page 215]]

Medicaid, CHAMPUS is always the primary 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.
    (4) Extended Care Health Option (ECHO). For those services or 
supplies that require use of public facilities, an ECHO eligible 
beneficiary (or sponsor or guardian acting on behalf of the beneficiary) 
does not have the option of waiving the full use of public facilities 
which are determined by the Director, TRICARE Management Activity or 
designee to be available and adequate to meet a disability related need 
for which an ECHO benefit was requested. Benefits eligible for payment 
under a state plan for medical assistance under Title XIX of the Social 
Security Act (Medicaid) are never considered to be available in the 
adjudication of ECHO benefits.
    (5) Primary payer. The requirements of paragraph (d)(4) of this 
section notwithstanding, TRICARE is primary payer for services and items 
that are provided in accordance with the Individualized Family Service 
Plan as required by Part C of the Individuals with Disabilities 
Education Act and that are medically or psychologically necessary and 
otherwise allowable under the TRICARE Basic Program or the Extended Care 
Health Option.
    (e) Implementing instructions. The Director, OCHAMPUS, or a 
designee, shall issue such instructions, procedures, or guidelines, as 
necessary, to implement the intent of this section.

[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 62 
FR 54384, Oct. 20, 1997; 63 FR 59232, Nov. 3, 1998; 64 FR 46141, Aug. 
24, 1999; 66 FR 40607, Aug. 3, 2001; 67 FR 18827, Apr. 17, 2002; 68 FR 
6618, Feb. 10, 2003; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30, 
2003; 69 FR 51569, Aug. 20, 2004]