[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
32
Parts 191 to 399
Revised as of July 1, 2002
National Defense
Containing a codification of documents of general
applicability and future effect
As of July 1, 2002
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 32:
Subtitle A--Department of Defense (Continued)
Chapter I--Office of the Secretary of Defense
(Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 1143
Alphabetical List of Agencies Appearing in the CFR...... 1161
List of CFR Sections Affected........................... 1171
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 191.1 refers
to title 32, part 191,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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A subject index to the Code of Federal Regulations is contained in a
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2002.
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
End. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2002.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-189 and parts 190-399; those issued by
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear
in the volume containing parts 700-799, and those issued by the
Department of the Air Force, Defense Logistics Agency, Selective Service
System, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, National Security
Council, Office of Science and Technology Policy, Office for Micronesian
Status Negotiations, and Office of the Vice President of the United
States appear in the volume containing parts 800 to end.
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[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This volume contains parts 191 to 399)
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Part
SUBTITLE A--Department of Defense (Continued)
Chapter I--Office of the Secretary of Defense (Continued)... 191
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Subtitle A--Department of Defense (Continued)
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CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
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SUBCHAPTER M--MISCELLANEOUS
Part Page
191 The DOD Civilian Equal Employment
Opportunity (EEO) Program............... 11
192 Equal opportunity in off-base housing....... 18
193 Highways for national defense............... 26
194
[Reserved]
195 Nondiscrimination in Federally assisted
programs of the Department of Defense--
Effectuation of Title VI of the Civil
Rights Act of 1964...................... 28
196 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 38
199 Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS)............ 55
203 Technical Assistance for Public
Participation (TAPP) in defense
environmental restoration activities.... 339
204 User charges................................ 349
205 End use certificates (EUCs)................. 356
206 National Security Education Program (NSEP)
grants to institutions of higher
education............................... 358
207-209
[Reserved]
210 Enforcement of State traffic laws on DoD
installations........................... 364
211 DoD Foreign Tax Relief Program.............. 365
212 Private organizations on DoD installations.. 368
215 Employment of military resources in the
event of civil disturbances............. 371
216 Military Recruiting and Reserve Officer
Training Corps Program access to
institutions of higher education........ 378
218 Guidance for the determination and reporting
of nuclear radiation dose for DoD
participants in the atmospheric nuclear
test program (1945-1962)................ 383
219 Protection of human subjects................ 388
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220 Collection from third party payers of
reasonable costs of healthcare services. 399
221 Department of Defense participation in the
National Practitioner Data Bank (NPDB).. 414
223 Department of Defense Unclassified
Controlled Nuclear Information (DoD
UCNI)................................... 416
224 DoD Committee Management Program............ 423
226 Shelter for the homeless.................... 425
228 Security Protective Force................... 427
229 Protection of archaeological resources:
uniform regulations..................... 429
230 Financial institutions on DOD installations. 443
231 Procedures governing banks, credit unions
and other financial institutions on DOD
installations........................... 445
234 Conduct on the Pentagon Reservation......... 478
235 Sale or rental of sexually explicit material
on DoD property......................... 483
237a Public affairs liaison with industry........ 485
238 Armed Forces community relations............ 487
239 Homeowners Assistance Program--application
processing.............................. 511
240 Criteria and procedures for providing
assistance to local educational agencies 519
242 Admission policies and procedures for the
School of Medicine, Uniformed Services
University of the Health Sciences....... 522
242a Public meeting procedures of the Board of
Regents, Uniformed Services University
of the Health Sciences.................. 527
242b General procedures and delegations of the
Board of Regents of the Uniformed
Services University of the Health
Sciences................................ 532
243 Intergovernmental coordination of DoD
Federal development programs and
activities.............................. 536
245 Plan for the security control of air traffic
and air navigation aids (short title:
SCATANA)................................ 538
246 Stars and Stripes (S&S) newspaper and
business operations..................... 549
247 Department of Defense newspapers, magazines
and Civilian Enterprise publications.... 562
248 Department of Defense periodicals........... 581
249 Presentation of DoD-related scientific and
technical papers at meetings............ 583
250 Withholding of unclassified technical data
from public disclosure.................. 587
252 Department of Defense offshore military
activities program...................... 596
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253 Assignment of American National Red Cross
and United Service Organizations, Inc.,
employees to duty with the Military
Services................................ 597
254 Teacher and Teacher's Aide Placement
Assistance Program...................... 599
256 Air installations compatible use zones...... 604
257 Acceptance of service of process............ 612
258 Cooperation with allies in research and
development of defense equipment........ 612
259 Uniform relocation assistance and real
property acquisition for Federal and
federally-assisted programs............. 614
260 Vending facility program for the blind on
Federal property........................ 614
261 Armed Services military club and package
stores.................................. 621
263 Traffic and vehicle control on certain
Defense Mapping Agency sites............ 622
264 International interchange of patent rights
and technical information............... 624
266 Audits of State and local governments,
institutions of higher education, and
other nonprofit institutions............ 627
268 Collecting and reporting of foreign
indebtedness within the Department of
Defense................................. 629
269 Civil monetary penalty inflation adjustment. 633
270 Compensation of certain former operatives
incarcerated by the Democratic Republic
of Vietnam.............................. 634
271 Obtaining information from financial
institutions............................ 647
272 Administration and support of basic research
by the DoD.............................. 648
274 Regulations governing competitive bidding on
U.S. Government guaranteed military
export loan agreements.................. 650
275 Obtaining information from financial
institutions: Rights to Financial
Privacy Act of 1978..................... 651
277 Implementation of the Program Fraud Civil
Remedies Act............................ 659
SUBCHAPTER N--FREEDOM OF INFORMATION ACT PROGRAM
285 DOD Freedom of Information Act (FOIA)
Program................................. 675
286 DoD Freedom of Information Act Program
Regulation.............................. 676
286h Release of Acquisition-Related Information.. 730
287 Defense Information Systems Agency Freedom
of Information Act Program.............. 733
290 Defense Contract Audit Agency (DCAA) Freedom
of Information Act Program.............. 735
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291 Defense Nuclear Agency (DNA) Freedom of
Information Act Program................. 750
292 Defense Intelligence Agency (DIA) Freedom of
Information Act......................... 764
293 National Imagery Mapping Agency (NIMA)
Freedom of Information Act Program...... 770
295 Office of the Inspector General, Freedom of
Information Act Program................. 774
296 National Reconnaissance Office Freedom of
Information Act Program regulation...... 795
298 Defense Investigative Service (DIS) Freedom
of Information Act Program.............. 797
299 National Security Agency/Central Security
Service (NSA/CSS) Freedom of Information
Act Program............................. 799
SUBCHAPTER O--PRIVACY PROGRAM
310 DoD Privacy Program......................... 809
311 OSD Privacy Program......................... 861
312 Office of the Inspector General (OIG)
Privacy Program......................... 873
313 The Chairman of the Joint Chiefs of Staff
and the Joint Staff Privacy Program..... 879
314 Defense Advanced Research Projects Agency,
Privacy Act of 1974..................... 879
315 Uniformed Services University of Health
Sciences, Privacy Act of 1974........... 880
316 Defense Information Systems Agency Privacy
Program................................. 880
317 DCAA Privacy Act Program.................... 884
318 Defense Threat Reduction Agency Privacy
Program................................. 888
319 Defense Intelligence Agency Privacy Program. 897
320 National Imagery and Mapping Agency Privacy
Program................................. 902
321 Defense Security Service Privacy Program.... 907
322 Privacy Act systems of records--disclosures
and amendment procedures--specific
exemptions, National Security Agency.... 919
323 Defense Logistics Agency Privacy Program.... 927
324 DFAS Privacy Act Program.................... 953
326 National Reconnaissance Office Privacy Act
Program................................. 961
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327 Defense Commissary Agency Privacy Act
Program................................. 981
SUBCHAPTER P--OBTAINING DOD INFORMATION
336 Publications of proposed and adopted
regulations affecting the public........ 996
337 Availability of DoD directives, DoD
instructions, DoD publications, and
changes................................. 999
338 Availability to the public of Defense
Nuclear Agency (DNA) instructions and
changes thereto......................... 999
SUBCHAPTER Q [RESERVED]
SUBCHAPTER R--ORGANIZATIONAL CHARTERS
341 Deputy Secretary of Defense................ 1001
342 Department of Defense Civilian Personnel
Management Service...................... 1001
343 Under Secretary of Defense for Personnel and
Readiness (USD(P&R)).................... 1003
344 Assistant Secretary of Defense for Reserve
Affairs (ASD(RA))....................... 1006
345 Department of Defense section 6 schools..... 1008
346 Department of Defense education activity.... 1011
347 Department of Defense Dependents Schools
(DoDDS)................................. 1013
348 Defense Medical Programs Activity (DMPA).... 1018
350 Assistant Secretary of Defense for Command,
Control, Communications, and
Intelligence (ASD(C31))................. 1019
352a Defense Finance and Accounting Service
(DFAS).................................. 1022
353 Assistant Secretary of Defense (Legislative
Affairs)................................ 1026
362 Defense Information Systems Agency (DISA)... 1027
363 Defense Security Assistance Agency.......... 1034
364 Washington Headquarters Services............ 1036
365 Office of Economic Adjustment............... 1040
366 Assistant Secretary of Defense (Program
Analysis and Evaluation)................ 1043
367 Assistant Secretary of Defense for Health
Affairs................................. 1044
367a Uniformed Services University of the Health
Sciences (USUHS)........................ 1046
368 Functions of the Department of Defense and
its major components.................... 1050
369 Principal Deputy Under Secretary of Defense
for Acquisition and Technology
(PDUSD(A&T))............................ 1063
370 DoD Health Council.......................... 1063
371 Defense Prisoner of War/Missing in Action
Office (DPMO)........................... 1066
[[Page 10]]
373 Inspector General of the Department of
Defense................................. 1067
376 Department of Defense Support Activities
(DSAs).................................. 1072
377 Defense Investigative Service (DIS)......... 1075
378 Assistant to the Secretary of Defense for
Intelligence Oversight (ATSD(IO))....... 1079
380 Director of Operational Test and Evaluation. 1081
381 Defense Nuclear Agency...................... 1084
382 Under Secretary of Defense (Acquisition).... 1089
383a Defense Commissary Agency (DeCA)............ 1096
384 Under Secretary of Defense for Acquisition
and Technology.......................... 1100
385 Defense Intelligence Agency................. 1105
386 Central Imagery Office...................... 1110
387 Defense Contract Audit Agency............... 1113
388 Ballistic Missile Defense Organization
(BMDO).................................. 1116
390 Armed Forces Radiobiology Research Institute 1121
391 Director of Administration and Management... 1124
392 Director of Small and Disadvantaged Business
Utilization............................. 1125
394 General Counsel of the Department of Defense 1127
395 Defense Legal Services Agency............... 1128
396 DoD coordinator for drug enforcement policy
and support............................. 1130
398 Defense Logistics Agency (DLA).............. 1131
399 Defense Mapping Agency (DMA)................ 1136
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SUBCHAPTER M--MISCELLANEOUS
PART 191--THE DOD CIVILIAN EQUAL EMPLOYMENT OPPORTUNITY (EEO) PROGRAM--Table of Contents
Sec.
191.1 Purpose.
191.2 Applicability and scope.
191.3 Definitions.
191.4 Policy.
191.5 Responsibilities.
191.6 Procedures.
191.7 Civilian EEO program staff.
191.8 Defense equal opportunity council and EEO boards.
191.9 Information requirements.
191.10 Effective date.
Authority: 5 U.S.C. 301, 10 U.S.C. 113.
Source: 53 FR 30990, Aug. 17, 1988, unless otherwise noted.
Sec. 191.1 Purpose.
This part:
(a) Implements the DoD Humans Goals Charter; 29 U.S.C. 791, 792,
793, and 795; guidance from the Equal Employment Opportunity Commission
(EEOC); guidance from the Office of Personnel Management (OPM);
Executive Order 11830; General Services Administration Order ADM
5420.71A; Executive Orders 11141; 11246 Part II, 11375, and 12086;
Office of Management and Budget (OMB) Circular No. A-11; 42 U.S.C.
2000E-16; Executive Order 11478; 38 U.S.C. 2014; 29 U.S.C. 631(b) and
633a; 5 U.S.C. chapters 43 and 72; Secretary of Defense Policy on Sexual
Harassment, July 17, 1981; Assistant Secretary of Defense (Manpower,
Reserve Affairs and Logistics) Multiple Addressee Memorandum, August 16,
1981; and 29 U.S.C. 206(d) by establishing the Civilian Equal Employment
Opportunity (EEO) Program, to include affirmative action programs,
consistent with guidance from the Equal Employment Opportunity
Commission (EEOC), Office of Personnel Management (OPM), and the DoD
Human Goals Charter.
(b) Consolidates in a single document provisions of Secretary of
Defense Multiple Addressee Memorandum, June 23, 1981; DoD Directive
1100.11, DoD Directive 1450.1, DoD Directive 5120.46, and DoD Directive
1100.15, therefore cancelling each document.
(c) Authorizes, as an integral part of the Civilian EEO Program, the
establishment of Special Emphasis Programs (SEPs) entitled the Federal
Women's Program (FWP), the Hispanic Employment Program (HEP), and the
Program for People with Disabilities (PPD), the Asian/Pacific Islander
Employment Program (AEP), the American Indian/Alaskan Native Employment
Program (AIEP), and the Black Employment Program (BEP).
(d) Establishes the Defense Equal Opportunity Council (DEOC), the
Civilian EEO Review Board, the SEP Boards.
(e) Authorizes the issuance of DoD Instructions and Manuals to
implement this part and guidance from standard-setting agencies such as
EEOC and OPM, consistent with DoD 5025.1-M.
[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991;
57 FR 35755, Aug. 11, 1992]
Sec. 191.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD) and
activities supported administratively by OSD, the Military Departments,
the Organization of the Joint Chiefs of Staff (as an element of the OSD
for the purposes of this program), the Unified and Specified Commands,
the Defense Agencies, the Army and Air Force Exchange Service, the
National Guard Bureau, the Uniformed Services University of the Health
Sciences, the Office of Civilian Health and Medical Programs of the
Uniformed Services, and the DoD Dependents Schools (hereafter referred
to collectively as ``DoD Components'').
(b) Applies worldwide to all civilian employees and applicants for
civilian employment within the Department of Defense in appropriated and
non-appropriated fund positions.
(c) Does not apply to military personnel, for whom equal opportunity
is covered by DoD Directive 1350.2 \1\.
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\1\ Copies may be obtained from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
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(d) Covers Federal employment issues under section 504 of the
Rehabilitation Act of 1973, as amended, even though DoD Directive 1020.1
\2\ implements section 504 with respect to programs conducted and
assisted by the Department of Defense. The standards established under
section 501 of the Rehabilitation Act of 1973, as amended, (29 U.S.C.
791, 792, 793, and 795), are to be applied under section 504 of the Act
with respect to civilian employees and applicants for civilian
employment in Federal Agencies.
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\2\ See footnote 1 to Sec. 191.2(c).
[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991]
Sec. 191.3 Definitions.
Affirmative action. A tool to achieve equal employment opportunity.
A program of self-analysis, problem identification, data collection,
policy statements, reporting systems, and elimination of discriminatory
policies and practices, past and present.
Age. A prohibited basis discrimination. For purposes of this
Directive, persons protected under age discrimination provisions are
those 40 years of age or older, except when a maximum age requirement
has been established by statute or the OPM. Aliens employed outside the
limits of the United States are not covered by this definition.
Discrimination. Illegal treatment of a person or group based on
race, color, national origin, religion, sex, age, or disability.
Equal Employment Opportunity (EEO). The right of all persons to work
and advance on the basis of merit, ability, and potential, free from
social, personal, or institutional barriers of prejudice and
discrimination.
Minorities. All persons classified as black (not of Hispanic
origin), Hispanic, Asian or Pacific Islander, and American Indian or
Alaskan Native.
National origin. A prohibited basis for discrimination. An
individual's place of origin or his or her ancestor's place of origin or
the possession of physical, cultural, or linguistic characteristics of a
national origin group.
People with disabilities. People who have physical or mental
impairments that substantially limits one or more major life activities,
has a record of such impairment, or is regarded as having such an
impairment. For purposes of this part, such term does not include any
individual who is an alcoholic or drug abuser and whose current use of
alcohol or drugs prevents such individual from performing the duties of
the job in question, or whose employment, by reason of such current
alcohol or drug abuse, would constitute a direct threat to property or
to the safety of others. As used in this paragraph:
(a) Physical or mental impairment. Any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological; musculoskeletal and
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic and
lymphatic; skin; and endocrine; or any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities.
(b) Major life activities. Functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
(c) Has a record of such impairment. Has a history of, or has been
misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(d) Is regarded as having an impairment. Has:
(1) A physical or mental impairment that does not substantially
limit major life activities but is treated by an employer as
constituting such a limitation;
(2) A physical or mental impairment that substantially limits major
life activities only as a result of the attitude of others toward such
impairment; or
(3) None of the impairments defined above but is treated by an
employer as having an impairment.
Race. A prohibited basis for discrimination. For purposes of this
part, all persons are classified as black (not of Hispanic origin),
Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native,
and White, as follows:
[[Page 13]]
(a) Black (not of Hispanic origin). A person having origins in any
of the black racial groups of Africa.
(b) Hispanic origin. A person of Mexican, Puerto Rican, Cuban,
Central or South American or other Spanish culture or origin regardless
of race.
(c) Asian or Pacific Islander. A person having origin in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent, or the Pacific Islands. This area includes, for example,
China, India, Japan, Korea, the Philippine Islands, and Samoa.
(d) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America, and who maintains cultural
identification through tribal affiliation or community recognition.
(e) White. A person having origins in any of the original peoples of
Europe, North Africa, or the Middle East.
Religion. Traditional systems of religious belief and moral or
ethical beliefs as to what is right and wrong that are sincerely held
with the strength of traditional religious views. The phrase ``religious
practice'' as used in this part includes both religious observances and
practices. DoD Components are expected to accommodate an employee's
religious practices unless doing so causes undue hardship on the conduct
of the Component's business.
Sexual Harassment. A form of sex discrimination that involves
unwelcomed sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature when:
(a) Submission to or rejection of such conduct is made either
explicitly or implicitly a term or condition of a person's job, pay, or
career; or
(b) Submission to or rejection of such conduct by a person is used
as a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or
creates an intimidating, hostile, or offensive environment.
Any person in a supervisory or command position who uses or condones
implicit or explicit sexual behavior to control, influence, or affect
the career, pay, or job of a military member of civilian employee is
engaging in sexual harassment. Similarly, any military member of
civilian employee who makes deliberate or repeated unwelcomed verbal
comments, gestures, or physical contact of a sexual nature is also
engaging in sexual harassment.
Special Emphasis Program (SEPs). Programs established as integral
parts of the overall EEO program to enhance the employment, training,
and advancement of a particular minority group, women, or people with
disabilities.
Standard-setting agencies. Non-DoD Federal Agencies authorized to
establish Federal Government-wide EEO policy or program requirements.
The term includes the EEOC; OPM: DoL, Office of Federal Contract
Compliance Programs (OFCCP); and OMB.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35755, Aug. 11, 1992]
Sec. 191.4 Policy.
It is DoD Policy to:
(a) Recognize equal opportunity programs, including affirmative
action programs, as essential elements of readiness that are vital to
the accomplishment of the DoD national security mission. Equal
employment opportunity is the objective of affirmative action programs.
(b) Develop and implement affirmative action programs to achieve the
objective of a civilian work force in which the representation of
minorities, women, and people with disabilities at all grade levels, in
every occupational series, and in every major organization element is
commensurate with the representation specified in EEOC and OPM guidance.
Such programs, which shall be designed to identify, recruit, and select
qualified personnel, shall be coordinated with the cognizant legal
offices.
(c) Ensure that Civilian EEO Program activities for minorities,
women, and people with disabilities are integrated fully into the
civilian personnel management system.
(d) Assess progress in DoD Component programs in accordance with the
affirmative action goals of the Department of Defense.
[[Page 14]]
(e) Prohibit discrimination based on race, color, religion, sex,
national origin, mental or physical disability, or age.
(f) Eliminate barriers and practices that impede equal employment
opportunity for all employees and applicants for employment, including
sexual harassment in the work force and at work sites and architectural,
transportation, and other barriers affecting people with disabilities.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel (ASD(FM&P)), or designee, shall:
(1) Represent the Secretary of Defense in all matters related to the
DoD Civilian EEO Program, consistent with DoD Directive 5124.2 \3\
---------------------------------------------------------------------------
\3\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(2) Establish and chair the DEOC.
(3) Establish a Civilian EEO Review Board.
(4) Develop policy and provide program oversight for the Civilian
EEO Program.
(5) Ensure full implementation of this part, monitor progress of
affirmative action program elements, and advise the Secretary of Defense
on matters relating to the Civilian EEO Program.
(6) Ensure that realistic goals that provide for significant
continuing increases in the percentages of minorities, women, and people
with disabilities in entry, middle, and higher grade positions in all
organizations and occupations are set and accomplished until the overall
DoD objective is met and sustained.
(7) Prepare a new DoD Human Goals Charter each time a new Secretary
of Defense is appointed.
(8) Ensure fair, impartial, and timely investigation and resolution
of complaints of discrimination in employment, including complaints of
sexual harassment.
(9) Establish DoD SEPs for the FWP, HEP, HIP, AEP, AIEP, and BEP.
(10) Establish DoD Special Emphasis Program Boards to assist with
implementation of SEPs under this part.
(11) Establish DoD Civilian EEO Award Programs to provide for the
annual issuance of Secretary of Defense Certificates of Merit to DoD
Components and individuals for outstanding achievement in the major
areas covered by this part, and to review all awards and management
training programs within the Department of Defense to ensure that
minorities, women, and people with disabilities receive full and fair
consideration consistent with their qualifications and the applicable
program criteria.
(12) Issue implementing instructions and other documents, as
required, to achieve the goals of the DoD Civilian EEO Program and to
provide policy direction and overall guidance to the DoD Components.
(13) Represent the Department of Defense on programmatic EEO matters
with EEOC, OPM, the Department of Justice, other Federal Agencies, and
Congress.
(14) Represent the Department of Defense on the Interagency
Committee on Handicapped Employees under E.O. 11830, as amended, and the
Council on Accessible Technology under General Services Administration
Order ADM 5420.71A.
(15) Represent the Department of Defense at meetings and conferences
of non-Federal organizations concerned with EEO programs, and coordinate
DoD support of such organizations' activities with the Assistant
Secretary of Defense (Public Affairs) and with DoD General Counsel in
accordance with DoD Directive 5410.18 \4\, DoD Instruction 5410.19 \5\,
DoD Directive 5500.2 \6\, and DoD Directive 5500.7 \7\.
---------------------------------------------------------------------------
\4\ See footnote 1 to Sec. 191.2(c).
\5\ See footnote 1 to Sec. 191.2(c).
\6\ See footnote 1 to Sec. 191.2(c).
\7\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(16) Serve as the DoD liaison with the Office of Federal Contract
Compliance Programs (OFCCP), Department of Labor (DoL), for the purpose
of providing contract information, forwarding complaints of
discrimination filed against DoD contractors, and implementing
administrative sanctions imposed against DoD contractors for
[[Page 15]]
violations of E.O. 11141; E.O. 11246; as amended by E.O. 11375, E.O.
12088; and DoL implementing regulations.
(17) Ensure that the DoD FAR Supplement contains appropriate
contract provisions for EEO for Government contractors and
subcontractors under Executive Orders 11141, 11246 Part II, 11375, and
12086; Section 402 of the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended; Section 503 of the Rehabilitation Act of 1973,
as amended; and DoL implementing regulations.
(b) The Heads of DoD Components, or their designees, shall:
(1) Ensure that all EEO policies are disseminated widely and that
they are understood and implemented at all levels within their
Components.
(2) Ensure that their Components comply with EEOC and OPM guidance
and this part and that minorities, women, and people with disabilities
receive full and fair consideration for civilian employment in all grade
levels, occupations, and major organizations, with special emphasis on
mid-level and higher grades and executive-level jobs, including the
Senior Executive Service (SES) and SES candidate pools.
(3) Treat equal opportunity and affirmative action programs as
essential elements of readiness that are vital to accomplishment of the
national security mission.
(4) Designate a Director of Civilian Equal Opportunity and allocate
sufficient staff and other resources to ensure a viable EEO program
under this Directive. This includes assignment of staff to be
responsible for EEO and affirmative action programs generally and SEP
Managers for the SEPs established under this part at the Component
level.
(5) Establish DoD SEPs, for the FWP, HEP, PPD, AEP, AIEP, and BEP at
Headquarters level and at all field activities levels unless exemptions
are granted to field activities. Authority to grant exceptions to field
activities of DoD Components is delegated to the Component Heads who, in
turn, may redelegate this authority.
(6) Require that EEO be included in critical elements in the
performance appraisals of all supervisors, managers, and other Component
personnel, military and civilian, with EEO responsibilities.
(7) Ensure fair, impartial, and timely investigation and resolution
of complaints of discrimination in employment, including complaints of
sexual harassment.
(8) Set realistic Component goals and motivate subordinate managers
and supervisors to set and meet their own goals until overall DoD and
Component goals are met and sustained.
(9) Evaluate employment policies, practices, and patterns within
their respective Components and identify and correct and institutional
barriers that restrict opportunities for recruitment, employment,
advancement, awards, or training for minorities, women, and people with
disabilities and ensure that EEO officers and civilian personnel
officers provide leadership in eliminating these barriers.
(10) Ensure that installations and activities establish focused
external recruitment programs to produce employment applications from
minorities, women, and people with disabilities who are qualified to
compete effectively with internal DoD candidates for employment at all
levels and in all occupations.
(11) Establish a continuing EEO educational program (including
training in the prevention of sexual harassment) for civilian and
military personnel who supervise civilian employees.
(12) Establish EEO Awards Programs to recognize individuals and
organizational units for outstanding achievement in one or all of the
major EEO areas covered by this part.
(13) Review all award and management training programs to ensure
that minorities, women, and people with disabilities are considered,
consistent with their qualifications and program criteria.
(14) At military installations having a civilian work force and
military units, ensure that the Civilian EEO Program is managed by and
conducted for civilian personnel only and that the Military Equal
Opportunity Program is managed by and conducted for military personnel
only. Any exceptions to this
[[Page 16]]
policy must be authorized by the Component head.
[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991;
57 FR 35756, Aug. 11, 1992]
Sec. 191.6 Procedures.
(a) Officials designated in this Directive shall allocate resources
necessary to develop methods and procedures to ensure that all elements
of this part are fully implemented and are in compliance with the spirit
and intent of the DoD Human Goals Charter, laws, executive orders,
regulatory requirements, and other Directive and Instructions governing
the Civilian EEO Program within the Department of Defense.
(b) Heads of DoD Components, in accordance with EEOC and OPM
guidance and subject to oversight by and supplemental guidance from the
ASD(FM&P), or designee shall:
(1) Develop procedures for and implement an affirmative action
program for minorities and women, consistent with section 717 of the
Civil Rights Act of 1964, as amended; E.O. 11478; guidance from EEOC;
and guidance from OPM.
(2) Develop procedures for and implement an affirmative action
program for people with disabilities consistent with section 501 of
Rehabilitation Act of 1973, as amended, and guidance from EEOC.
(3) Develop procedures for and implement an affirmative action
program for disabled veterans, consistent with DoD Directive 1341.6.\8\
This program shall be consistent with the program established in
paragraph (b)(2) of this section and coordinated with the Component's
PPD manager.
---------------------------------------------------------------------------
\8\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(4) Develop procedures for and implement systems for investigation
and resolution of complaints of employment discrimination under section
717 of the Civil Rights Act of 1964, as amended; sections 501, 503, and
504 of the Rehabilitation Act of 1973, as amended and DoD Directive
1020.1; section 402 of the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended; the Age Discrimination in Employment Act of
1967, as amended; guidance from EEOC; and applicable case law.
(5) Develop procedures for and implement a Federal Equal Opportunity
Recruitment Program for minorities and women and a comparable special
recruitment program for people with disabilities in accordance with the
Civil Service Reform Act of 1978; EEOC instruction concerning
affirmative action programs for people with disabilities; guidance from
OPM; external recruitment programs to obtain employment applications
from minorities, women, and people with disabilities who are competitive
with internal DoD candidates for employment at all levels.
(6) Develop procedures for and implement all SEPs established under
this part at the Component level. These SEPs shall be integral parts of
the Civilian EEO Program and shall be conducted in accordance with the
provisions of this part and applicable EEOC and OPM guidance.
(7) Develop procedures for and implement a program to eliminate
sexual harassment in Component work places, consistent with DoD Policy
on Sexual Harassment memorandums, and to ensure compliance with the
Equal Pay Act.
(8) Develop procedures for and implement a program of employment
preference for spouses of military personnel, in accordance with DoD
Instruction 1404.12.\9\
---------------------------------------------------------------------------
\9\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(9) Develop procedures for and implement a selective placement
program for people with disabilities in accordance with guidance from
OPM. This program shall be consistent with the program established in
paragraph (b)(2) of this section, and coordinated with the Component's
PPD manager.
(10) Develop procedures for and implement staffing initiatives,
training and development programs, and upward mobility programs designed
to increase the representation of qualified minorities, women, and
people with disabilities on certificates of eligibility and accompanying
lists of individuals eligible for special appointments that are provided
to selecting officials at all levels within the Component. These
[[Page 17]]
programs should include SES candidate programs and shall be targeted in
career field in which there is underrepresentation and a likelihood of
vacancies (e.g., science and engineering positions).
(11) Develop procedures for and implement a program to evaluate all
supervisors and managers with EEO responsibilities on their
contributions to and support of the Component's EEO program.
Specifically, Component SES and General Manager personnel, when
appropriate, shall have their EEO responsibilities defined as a critical
element in their performance appraisals in accordance with the Civil
Service Reform Act of 1978.
(12) Develop procedures for an implement a program to participate in
and conduct ceremonies, where appropriate, at all levels of the
Component to observe nationally proclaimed or other specially-designated
community activities that particularly affect minorities, women, and
people with disabilities and that support the Civilian EEO Program.
Military and civilian personnel should both participate whenever
possible. Example of special observances include Dr. Martin Luther King
Jr.'s Birthday, Black History Month, National Women's History Week,
Women's Equality Day, Hispanic Heritage Week, National Disability
Employment Awareness Month, and the Decade of Disabled Persons.
(13) Develop procedures for and implement a program to revise
documents and change practices and policies that discriminate against
civilian personnel on the basis or race, color, sex, religion, national
origin, mental or physical disability, or age.
(14) Develop procedures for and implement and affirmative action
program for the continued Federal employment of minorities, women, and
people with disabilities who have lost their jobs in DoD Components
because of contracting decisions made under OMB Circular No. A-76.
(Under OMB Circular Federal employees have, in general, the right of
first refusal of employment under these contracts.)
(15) Develop precedures for and implement a program for computer
support of employees with disabilities consistent with DoD participation
in activities of the Council on Accessible Technology in accordance with
General Services Administration Order ADM 5420.71A.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.7 Civilian EEO program staff.
(a) EEO Managers, including SEP Managers and other staff who are
responsible for EEO and affirmative action programs, shall function at a
level that is sufficiently responsible with the assigned organization to
enable them to communicate effectively the goals and objectives of the
program and to enable them to obtain the understanding, support, and
commitment of managers and other officials at all levels within the
organization.
(b) It shall be the responsibility of EEO Managers, SEP Managers,
and other program staff to develop, coordinate, implement, and recommend
to managers, other officials, and covered groups the policy, guidance,
information, and activities necessary to attain the goals of the SEPs
and the overall DoD Civilian EEO Program.
Sec. 191.8 Defense equal opportunity council and EEO boards.
(a) The DEOC shall be chaired by the ASD (FM&P) and shall coordinate
policy for and review civilian and military equal opportunity programs,
monitor progress of program elements, and advise the secretary of
Defense on pertinent matters. One of the mandates of the DEOC shall be
to pursue an aggressive course of action to increase the numbers of
minorities, women, and people with disabilities in management and
executive positions at grades 13 and above, including the SES and, at
the request of the Secretary of Defense, Schedule C, and other noncareer
executive positions in the SES and on the Executive Schedule. Members of
the DEOC shall include the assistant Secretary of Defense (Reserve
Affairs), Director of Administration and Management, and the Assistant
Secretaries with responsibility for personnel policy and reserve affairs
in the Military Departments.
(b) The Civilian EEO Review Board shall be chaired by the ASD(FM&P),
or
[[Page 18]]
designee. The Board shall support the DEOC and shall be made up of
designated EEO and personnel representatives from the DoD Components and
such other individuals as may be necessary to carry out the work of the
DEOC and implement this part. The Board shall work with career
management officials, other key management officials, and union
representatives in developing policies, programs, and objectives.
(c) The DoD SEP Boards shall be chaired by the DoD SEP Managers.
These Boards shall be comprised of designated SEP Managers from the DoD
Components and such other individuals as may be necessary to advise and
assist in EEO activities and policy development in the Department of
Defense. The Boards shall work with career management officials, other
key management officials, and union representatives in developing
policies, programs, and objectives.
(d) The DEOC, Civilian EEO Review Board, and each SEP Board
established at the DoD level shall have a Charter that describes its
organization, management, functions, and operating procedures,
consistent with DoD Directive 5105.18.\1\\0\
---------------------------------------------------------------------------
\1\\0\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------
(e) Civilian EEO Review Boards and SEP Boards may be established at
Component, command, and installation levels as well as the DoD level to
assist in program activities.
(f) Members of covered groups should be represented on Civilian EEO
Review Boards, SEP Boards, and subcommittees at all levels; and
consideration should be given to participation by military personnel and
by Federal employees who are union representatives.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.9 Information requirements.
(a) The ASD(FM&P) shall:
(1) Submit an annual report to the Secretary of Defense on the
status of the DoD EEO program. This report shall be developed from
existing documents, such as affirmative action plan accomplishment
reports, civil rights budget reports, semiannual discrimination
complaint reports, and Federal Equal Opportunity Recruitment Program
reports, plus statistical data obtained from the Defense Manpower Data
Center and reports of visits to DoD installations.
(2) Submit consolidated DoD annual reports on discrimination
complaints to the EEOC in accordance with EEOC guidance. This reporting
requirement is assigned Interagency Report Control Number 0288-EEO-NA.
(b) Heads of DoD Components shall:
(1) Submit annual reports on discrimination complaints to the
ASD(FM&P), or designee, in accordance with guidance from the EEOC. This
reporting requirement is assigned Interagency Report Control Number
0288-EEO-NA.
(2) Submit copies of affirmative action program plan, affirmative
action program plan updates, and affirmative action plan accomplishment
reports for minorities, women, and people with disabilities to the
ASD(FM&P), or designee, in addition to copies of annual reports for the
Federal Equal Opportunity Recruitment Program.
(3) Ensure that designated officials submit information for an
annual report on computer support of employees with disabilities and for
reports on individual computer accommodations for employees with
disabilites. These reporting requirements are assigned RCS DD-FM&P (A)
1731 and RCS DD-FM&P (AR) 1732.
[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989;
57 FR 35756, Aug. 11, 1992]
Sec. 191.10 Effective date.
This part is effective May 21, 1987.
PART 192--EQUAL OPPORTUNITY IN OFF-BASE HOUSING--Table of Contents
Sec.
192.1 Purpose.
192.2 Applicability.
192.3 Definitions.
192.4 Policy.
192.5 Responsibilities.
192.6 Procedures.
Appendix A to Part 192--Checklist for Commanders
Appendix B to Part 192--Procedures and Reports
[[Page 19]]
Authority: 42 U.S.C. 3601 et seq.
Source: 55 FR 6248, Feb. 22, 1990, unless otherwise noted.
Redesignated at 56 FR 32964, July 18, 1991.
Sec. 192.1 Purpose.
This part:
(a) Revises 32 CFR part 192.
(b) Revises the references, policies, and procedures covering off-
base housing and fair housing enforcement.
(c) Outlines discrimination complaint inquiries or investigative
procedures and hearing requirements.
(d) Deletes the requirement for each Military Department to submit a
semi-annual housing discrimination report to the Assistant Secretary of
Defense (Force Management and Personnel) (ASD(FM&P)).
(e) Requires each Military Service to report to the ASD(FM&P) any
housing discrimination cases and their results in their Annual Military
Equal Opportunity Assessment Report to the ASD(FM&P).
(f) Requires each Military Department to maintain all completed or
resolved housing discrimination cases.
(g) Emphasizes liaison with other Government (local, State, or
Federal) agencies.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Joint Chiefs of Staff (JCS), the Joint
Staff, the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), the Uniformed Services University of
the Health Sciences (USUHS), the Defense Agencies, and DoD Field
Activities (hereafter referred to collectively as ``DoD Components'').
The term ``Military Services,'' as used herein, refers to the Army,
Navy, Air Force, and Marine Corps. DoD civilian employees (as defined in
Sec. 192.3) will be offered the same services that members of the Armed
Forces receive.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.3 Definitions.
Agent. Real estate agency, manager, landlord, or owner of a housing
facility doing business with DoD personnel or a housing referral service
(HRS).
Area Outside the United States. Foreign countries where DoD
personnel reside.
Commander. The military or civilian head of any installation,
organization, or agency of the Department of Defense who is assigned
responsibility for the off-base housing program.
Commuting Area. That area which is within a 1 hour commute by a
privately-owned vehicle during rush hour and no farther than 30 miles
from the installation, or within other limits to satisfy mission
requirements.
Complainant. A member of the Armed Forces (or authorized dependent
designated by the member) or a civilian employee of the Department of
Defense (or authorized dependent designated by the civilian employee)
who submits a complaint of discrimination under this part.
Discrimination. An act, policy, or procedure that arbitrarily denies
equal treatment in housing because of race, color, religion, sex,
national origin, age, handicap, or familial status to an individual or
group of individuals.
DoD Personnel. (1) Members of the Armed Forces (and their
dependents) authorized to live off-base.
(2) DoD civilian employees (and their dependents) who are
transferred from one place of residence to another because of job
requirements or recruited for job opportunities away from their current
place of residence in the United States, and all DoD U.S. citizen
appropriated fund and nonappropriated fund civilian employees and their
dependents outside the United States.
Familial Status. One or more individuals (who have not attained the
age of 18 years) being domiciled with a parent or another person having
legal custody of such an individual or individuals; or the designee of
such parent or other person having such custody, with the written
permission of such parent or other person.
Listed Facility. A suitable housing facility (not on restrictive
sanction) listed with the HRS as available for occupancy by DoD
personnel.
[[Page 20]]
Minorities. All persons classified as black (not of Hispanic
origin), Hispanic, Asian or Pacific Islander, or American Indian or
Alaskan native.
Relief for the Complainant. Action taken by a commander for the
benefit of a complainant.
Restrictive Sanctions. Actions taken by a commander to prevent
military personnel from moving to, or entering into a rental, lease, or
purchase arrangement with, a housing facility, when its agent has been
found to have discriminated against DoD personnel. Restrictive sanctions
are effective against the agent and the facility.
Survey. The procedure by which the HRS identifies housing resources
to ascertain the availability of housing facilities for occupancy by DoD
personnel.
Verifiers. Volunteers used by the commander during the course of a
housing discrimination investigation to determine if, in fact, housing
discrimination is being practiced by an agent, as alleged. Verifiers are
not required to be prospective tenants.
Sec. 192.4 Policy.
It is DoD policy that under DoD Directive 1350.2 \1\ the Department
of Defense is fully committed to the goal of obtaining equal treatment
for all DoD personnel. Specific guidance on off-base housing and fair
housing enforcement is as follows:
---------------------------------------------------------------------------
\1\ Copies of all DoD issuances listed in this part may be obtained,
at cost, from the National Technical Information Service, 5285 Port
Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
(a) National Housing Policy. Federal law prohibits discrimination in
housing in the United States against any person because of race, color,
religion, sex, age, national origin, handicap, or familial status.
(1) Title VIII of P.L. 90-284 contains the following:
(i) The fair housing provisions.
(ii) Outlines the responsibilities of the Secretary of Housing and
Urban Development (HUD) with regard to Public Law 90-284.
(iii) Requires all Executive Departments and Agencies to administer
housing and urban development programs and activities under their
jurisdiction in a manner that shall reflect ``affirmatively'' the
furthering of title VIII.
(2) Title IX of Public Law 90-284 makes it a crime to intimidate
willfully or interfere with any person by force or threat because of
that person's activities in support of fair housing.
(3) Title 42 U.S.C. 1982 prohibits discrimination in housing in the
United States. This statute protects DoD personnel.
(4) Public Law 100-430 amends title VIII of Public Law 90-284 by
revising the procedures for the enforcement of fair housing requirements
and adding protected classes of individuals.
(5) Title VIII of Public Law 90-284, as amended by Public Law 100-
430, does not limit the applicability of any reasonable local, State, or
Federal restrictions regarding the maximum number of occupants permitted
to occupy a dwelling. Additionally, provisions of such title VIII
regarding familial status do not apply with respect to housing intended
for, and solely occupied by, persons 62 years of age or older or
intended and operated for occupancy, but at least one person 55 years of
age or older. For guidance regarding housing occupied by those 55 years
of age or older, use the statutory provision at section 805 b(2)(c), 102
Stat. 1623, of Public Law 100-430.
(b) DoD Fair Housing Policy. The Department of Defense intends that
Federal fair housing law shall be supported and that DoD personnel shall
have equal opportunity for available housing regardless of race, color,
religion, sex, age, national origin, handicap, or familial status.
(1) That policy includes the objective of eliminating discrimination
against DoD personnel in off-base housing. That objective is not
achieved simply by finding a place to live in a particular part of town
or in a particular facility for a specific person.
(2) The intent is achieved when a person meeting the ordinary
standards of character and financial responsibility is able to obtain
off-base housing equally as any other person anywhere in the area
surrounding a military installation, without suffering discrimination
based on race, color, religion,
[[Page 21]]
sex, age, national origin, handicap or familial status.
(i) The accomplishment of this objective shall not be hampered by
requiring the submission of a formal complaint of discrimination. A
suspected discriminatory act, with or without the filing of a formal
complaint, is a valid basis for investigation and, if discrimination is
substantiated, imposition of restrictive sanctions.
(ii) On substantiation that an agent practiced discrimination,
restrictive sanctions shall be imposed for a minimum of 180 days.
(iii) The fact that Public Law 90-284, 42 U.S.C. 1982, and Public
Law 100-430 may or may not provide a remedy in a given case of
discrimination affecting DoD personnel does not relieve a commander of
the responsibility to ensure equal treatment and equal opportunity for
such personnel or to impose restrictive sanctions against the agent and/
or facility, when appropriate.
(iv) Military installations shall develop information programs to
apprise Service members of the DoD policy and program for equal
opportunity in off-base housing. Commanders should use local community
resources, such as civil rights organizations, religious and service
groups, and local information media, in support of their programs.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.5 Responsibilities.
The Secretaries of the Military Departments shall:
(a) Ensure nondiscrimination in referring DoD personnel to off-base
housing facilities.
(b) Continue efforts (as described in DoD 4165.63-M \2\ to identify
and solicit nondiscriminatory assurances for housing facilities within
the commuting area, which are considered to be suitable for occupancy by
Service members.
---------------------------------------------------------------------------
\2\ See footnote 1 to Sec. 192.4.
---------------------------------------------------------------------------
(c) Ensure that an office and staff required by DoD 4165.63-M are
available in conjunction with the cognizant staff judge advocate or
other legal authority to advise Service members on the following:
(1) The procedures in this part.
(2) The application of Public Law 90-284, 42 U.S.C. 1982, and Public
Law 100-430 in specific situations.
(3) The rights of individuals to pursue remedies through civilian
channels, without recourse and in addition to the procedures prescribed
in this part, including the right to:
(i) Make a complaint directly to the Department of HUD and/or to the
Department of Justice (DoJ) in the United States.
(ii) Bring a private civil action in any court of competent
jurisdiction.
(d) Periodically review off-base housing procedures and policies to
ensure effectiveness and compliance with this part. (Appendix A to this
part is a checklist to help commanders with this review.)
(e) Cooperate with other Government Agencies investigating housing
discrimination complaints filed by Service members.
(f) Ensure that each Military Service reports any housing
discrimination cases and their results in the Annual Military Equal
Opportunity Assessment Report required by DoD Instruction 1350.3.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964,
July 18, 1991]
Sec. 192.6 Procedures.
(a) Appendix B to this part contains the detailed procedures for
assisting Service members, investigating housing complaints, and
reporting requirements for housing discrimination complaints.
(b) The complaint and investigative report required in section B.,
appendix B to this part is exempt from formal approval and licensing
under DoD 7750.5-M.\3\
---------------------------------------------------------------------------
\3\ See footnote 1 to Sec. 192.4.
[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Appendix A to Part 192--Checklist for Commanders
A. Are all assigned personnel informed of the Equal Opportunity in
Off-Base Housing Program requirements before obtaining housing off base?
B. Is there an effective information program ensuring equal
opportunity in off-base housing information program?
[[Page 22]]
C. Are community resources being used to support the equal
opportunity in off-base housing information program?
D. Are housing discrimination complaints being processed within the
required time?
E. Are complainants being informed in writing of the results of
housing discrimination inquiry and/or investigating actions?
F. Are housing surveys being conducted periodically to obtain new
listings?
G. Are restrictive sanctions being imposed immediately for a minimum
of 180 days on agents found to be practicing discrimination?
H. Are the services of command representatives provided to assist
applicants in their search for housing?
I. Are HHS personnel and equal opportunity personnel aware of and
sensitive to housing problems encountered by DoD personnel?
J. Are equal opportunity in off-base housing reports being submitted
accurately and on time?
Appendix B to Part 192--Procedures and Reports
A. Off-Base Housing Procedures
DoD personnel seeking off-base housing shall be processed as
follows:
1. Seen by an HRS when available (optional for DoD civilian
personnel).
2. Provided assistance in seeking temporary and permanent off-base
housing, as follows:
a. Counseling on the equal opportunity in off-base housing program
with particular emphasis placed on reporting any indication of
discrimination against DoD personnel in their search for housing.
b. Counseling and personal assistance shall include the following
services:
(1) Offering to check by telephone the availability of selected
listings. A record shall be made and retained for future reference of
the date, time, and nature of any conversation confirming the
availability of a facility. The race, color, religion, sex, national
origin, handicap, or familial status of the applicant shall not be
divulged. Caution must be exercised to ensure that a pattern of
``confirmation only for minorities'' does not develop.
(2) Offering the services of a command representative (such as a
unit sponsor or other designated person, when available) to accompany
and assist the applicant in the search for housing.
(3) Explaining various discriminatory methods that may be employed
by agents. For instance, an agent may arbitrarily refuse to accept or
consider the applicant as a tenant, falsely indicate the unit sought has
been rented to another applicant, or refuse to make the unit available
under the same terms and conditions as are ordinarily applied to
applicants for the facilities. In such instances the following shall
apply:
(a) The agent shall be queried on the reasons why the unit is not
available. After all reasonable steps have been taken to ascertain
whether any valid nondiscriminatory reason can be shown for the agent's
rejection of the applicant, and if there appears to be no such reason, a
reasonable effort shall be made to persuade the agent to make the unit
available to the applicant.
(b) The incident shall be reported immediately by the command
representative and the applicant to the HRS for appropriate command
action.
B. Complaint Procedures--United States
Commanders shall ensure that all DoD personnel are informed of the
scope and provisions of the DoD Equal Opportunity in Off-Base Housing
Program and advised to report immediately to the HRS (when available)
any form of discrimination encountered when seeking housing within a
Civilian Community. Incidents should be reported to base agencies or
command representatives when an HRS is not available (i.e., equal
opportunity officer, unit commander, supervisor). A verbal or written
statement of discriminatory policy by an agent is considered to be an
act or incident of discrimination, and the investigative procedures
outlined in this appendix shall be followed.
1. Inquiry into Complaint. Complaints of off-base housing
discrimination must receive prompt attention. An inquiry into the
complaint shall begin within 3 working days after receipt of the
complaint. The inquiry may be informal, but must be detailed
sufficiently to determine if discrimination occurred. Upon receipt of a
discrimination complaint, the HRS (if there is no HRS, a command
designated representative) shall take the following action:
a. Immediately notify the commander.
b. Promptly interview the complainant to determine the details and
circumstances of the alleged discriminatory act.
c. Immediately telephone or visit the facility and/or agent
concerned, if the complaint is received shortly after the time of the
alleged act and it concerns the change in availability of a vacancy
(i.e., ``just rented,'' etc.). Attempt to determine if a vacancy exists
without making reference to the complaint received. Request the
commander to authorize the use of verifiers, as necessary. (See this
appendix, subsection B.2.)
d. Advise the complainant of the provisions and procedures in this
Instruction and of the right to pursue further actions through HUD, DoJ,
and local or State agencies. Coordinate efforts with the Office of Judge
Advocate or other cognizant legal counsel to determine
[[Page 23]]
to what extent legal assistance can be provided to the complainant.
Assist the complainant in completing seven signed, dated, and notarized
copies of HUD Form 903, ``Housing Discrimination Complaint.'' The fact
that a complainant might report an act of alleged discriminatory
treatment, but declines completing a HUD Form 903, does not relieve the
command of responsibility for making further inquiry and taking such
subsequent actions, as may be appropriate.
e. Document the complainant's action for future reference and inform
the commander of the results of the HRS preliminary inquiry and actions
taken. The commander shall take action to assist the complainant in
obtaining suitable housing. If, due to previous discriminatory practices
in the community, suitable housing cannot be obtained by the complainant
in a reasonable amount of time, the complainant and the commander may
use this fact to justify a request for priority in obtaining military
housing or for humanitarian reassignment. Reassignment action is a last
resort and must be justified fully through command personnel channels.
2. Use of Verifiers. Verifiers are authorized to determine if a
vacancy exists and whether or not rental or such practices are
discriminatory. Verifiers shall not be used only for determining
sincerity or normal practices of an agent about whom the HRS has not
received a housing discrimination complaint.
a. When selecting and using verifiers, the following applies:
(1) Verification of the vacancy shall be made expediently after
alleged act of discrimination.
(2) Verifiers may be volunteers. (The equal opportunity office is a
possible source for identifying individuals to be used as verifiers.)
(3) The purpose of verification is to isolate the attribute of race,
color, religion, sex, national origin, age, handicap, or familial status
that is the suspected basis for the alleged discrimination against the
complainant. Except for those attributes that are considered to be the
source of the discrimination complaint, the verifier should possess
attributes that are similar to the complainant. If two verifiers are
used, one may possess similar attributes to the complainant. Ideally,
two verifiers should be used.
b. Instructions provided to the verifiers by HRS personnel should
include the following:
(1) Explanation of the equal opportunity in off-base housing and
off-base housing referral programs.
(2) Verifiers are to obtain information only on agent and/or
facility operating policies, practices, and procedures for subsequent
determination of complaint validity.
(3) Verifiers are not to make a verbal or written contract for the
housing unit, pay any money, or say they want the housing unit.
(4) Verifiers shall be knowledgeable concerning family composition,
pets, and housing requirements of the complainant; they shall ask for
identical housing requirements.
(5) The following information shall be obtained by the verifier, if
possible:
(a) Concerning the Facility. What is available? Does it meet the
requirements of the complainant? Amount of rent or cost of facility?
Deposit required? Is an application required? What is the time between
filing an application and permission to move in? Are there minority
families and/or singles in the facility? Make a note of the presence or
absence of a vacancy sign, and any other information deemed appropriate.
(b) Concerning the Prospective Tenants/Purchasers. If possible,
ascertain criteria and qualifications that must be met (credit rating,
salary, marital status, deposit, written application, etc.) and obtain a
complete description of all procedures for becoming a tenant/purchaser
including all steps from initial inquiry to moving in. Does the agent's
subjective impression of the applicant appear to play any part in the
decision to rent the unit?
(6) The verifier's statement shall be completed immediately after
the verification visit, if possible. It shall be accurate, objective,
and factual. Include the following in the statement:
(a) Date, time of visit, persons contacted, positions of persons
contacted. Include any other pertinent information obtained during
visit; i.e., length of time employed at facility, in addition to the
information in this appendix, subparagraph B.2.b.(5), above.
(b) When reconstructing a conversation, write in the first person
and try to use direct quotes. Do not use pronouns such as ``he,''
``she,'' or ``they.'' Clearly identify who said what to whom.
(c) Sign and date statement. Give full name, address, telephone
number (duty or home), race, color, religion, sex, national origin, age,
handicap or familial status, as relevant to the complaint.
3. Complaint Process. If the basic facts of the HRS preliminary
inquiry appear to substantiate the complaint, the commander shall ensure
that the following actions begin within 3 working days of receipt of the
inquiry report:
a. Informal Hearing. Give written notice to the agent explaining the
nature of the complaint and the agent's right to request an informal
hearing with the commander. The notification shall state specifically
the nature of the discrimination complaint and the right of the agent to
appear personally at the hearing, to be represented by an attorney, to
present evidence, and to call witnesses. The notification also shall
state that the agent has 5 days after receipt of the written notice to
request a hearing. If no request
[[Page 24]]
is received within 5 days, the lack of response shall be considered as a
waiver of the right to such hearing. The written notification either
shall be delivered to the agent personally by a representative of the
commander, or shall be sent to the agent by certified mail with return
receipt requested.
(1) Composition of an Informal Hearing. The informal hearing shall
be conducted by the commander or designee at a convenient location. The
agent, agent's attorney, the complainant, the complainant's attorney,
the equal opportunity officer, the HRS, the Staff Judge Advocate or
other cognizant legal counsel, or other designated persons may attend.
(2) Record of Hearing. A summary of the hearing shall be made a part
of the complaint file.
b. Legal Review. A legal review shall be accomplished following the
inquiry and informal hearing (if applicable) and before the commander's
final decision that the inquiry supports or fails to support the
complaint. The summary and other pertinent documents shall be reviewed
for content and completeness. A statement that such a review was
conducted and signed by the Staff Judge Advocate or other cognizant
legal counsel performing the review shall be made a part of the case
file. That statement shall include:
(1) Any necessary explanatory remarks, including comments on the
facts and evidence presented.
(2) Information known about pending complaints brought by other
parties on the same facility and/or agent.
(3) Comments on the civil rights laws relevant to the particular
case.
4. Commander's Decision. The responsibility for imposition of
restrictive sanctions rests with the commander and cannot be delegated.
The commander's decision shall be based on a full and impartial review
of all facts and the policies and requirements as stated in this part.
The commander's options include the following:
a. If the commander determines that more information is required, or
for any reason further inquiry is deemed necessary, an officer shall be
appointed from sources other than the HRS to conduct a formal inquiry or
investigation, as the situation warrants. The officer, if not an
attorney, shall be afforded the advice and assistance of a Staff Judge
Advocate or other cognizant legal counsel.
b. If, in the commander's judgment, the inquiry or investigation
fails to support the complaint the case shall be considered closed and
the commander shall:
(1) Inform the complainant in writing of all actions taken and
advise the complainant of rights to pursue further actions to include
the following:
(a) The right to submit a complaint to the HUD and the DoJ.
(b) The right to bring a private civil action in a State or Federal
court of competent jurisdiction.
(c) The availability of legal assistance from their local Staff
Judge Advocate or other cognizant legal counsel in pursuing civil
redress.
(2) Summarize in the report file the practices giving rise to the
complaint, the actions and results of the inquiry or investigation, and
if discriminatory practices were found, written assurances from the
agent on future facility and/or agent practices. The following
statement, completed by the complainant, shall be included, as part of
the case file: ``I am (am not) satisfied with the efforts taken by the
commander on my behalf to achieve satisfactory resolution of my off-base
housing discrimination complaint.'' If the complainant indicates a lack
of satisfaction, the reasons must be included in the case file.
(3) Inform the agent of the results of the inquiry by command
correspondence if an informal hearing was held. Such correspondence
should reiterate DoD policy and requirements for equal opportunity in
off-base housing.
(4) Forward unsubstantiated complaint reports and HUD Form 903 to
the HUD and the DoJ if requested by the complainant.
(5) Retain a copy of the report file for 2 years for future
reference.
c. If the inquiry or investigation supports the complainant's charge
of discrimination and the discriminatory act is determined by the
commander to conflict with DoD policy, the commander shall:
(1) Impose restrictive sanctions against the agent and/or facility
for a minimum of 180 days. Sanctions shall remain in effect until the
requirements in this appendix, subparagraphs B.6.a.(1) or B.6.a.(2),
below, are met. Restrictive sanctions shall be imposed when a suspected
discriminatory act, despite the absence of a formal complaint, is
investigated and found valid. The fact that a validated discrimination
complaint and/or incident has been or is scheduled to be forwarded to
another Agency (the HUD, the DoJ, etc.) is not cause for withholding
sanction action pending the outcome of that Agency's further review or
investigation. When imposing a restrictive sanction, the commander
shall:
(a) Remove the facility listing(s) from HRO files.
(b) Impose restrictive sanctions against all facilities owned or
operated by the agent concerned.
(c) Place the facility on the restrictive sanction list maintained
by the HRS. The restrictive sanction list shall be prepared on official
letterhead stationery, signed by the commander, and include the
authority for and conditions of the restrictive sanctions.
(d) Inform the agent concerned by command correspondence that:
[[Page 25]]
(1) Restrictive sanctions have been imposed.
(2) The reasons, nature, and minimum duration of the restrictions.
(3) The action required for the removal of sanctions at the
conclusion of the minimum period.
The notification of restrictive sanctions shall be sent by certified
mail, return receipt requested or delivered to the agent personally by a
command representative.
(e) Provide all DoD personnel reporting to the HRS with a copy of
the restrictive sanction list, and advise members of the Armed Forces
that they may not rent, lease, purchase, or reside in any of the listed
facilities. Obtain a signed acknowledgment of receipt of the restrictive
sanction list from the HRS using a DD Form 1746, ``Application for
Assignment to Housing.''
(f) Advise other military installations of the restrictive sanction
action taken when the sanctioned facility is located within the
commuting area of their military installations.
(2) Inform the complainant in writing of all actions taken and
advise the complainant that his or her case will receive continuing
action to include, if the complainant requests, forwarding the case file
to the HUD and/or the DoJ for action.
(3) Before forwarding the report to the respective Military
Department, prepare a memorandum outlining the following:
(a) The base efforts made to obtain housing relief for the
complainant.
(b) The impact of restrictive sanctions on the off-base housing
program and DoD personnel and their dependents.
(c) Any other considerations deemed relevant.
(4) Include a statement completed by the complainant for the case
file. (See this appendix, subparagraph B.4.b.(3), above.)
(5) If the act of discrimination falls within existing regulations,
forward a copy of the complaint and investigation report directly to the
HUD within 180 days after the occurrence of the alleged discriminating
act, using HUD Form 903. The original report shall be sent to the
appropriate HUD Regional Office or the U.S. Department of Housing and
Urban Development Office of Fair Housing and Equal Opportunity, 451 7th
Street SW., Washington, DC 20410. A copy of the complaint and
investigation report shall be forwarded to the Civil Rights Division,
Department of Justice, Washington, DC 20530.
(6) When more than one complaint alleging discrimination in the same
facility or by the same agent has been received, consolidate the
complaints for the inquiry, legal review, and commander's memorandum.
d. When a commander receives a complaint alleging further
discrimination in a facility or by an agent after a completed case file
has been closed, the commander shall forward the summary of the facts on
the subsequent complaint, outlined in this enclosure, subparagraph
B.4.c.(6), above. Include brief comments indicating the extent to which
the new complaint affects the previous action.
5. Followup Actions. After forwarding the report and all required
attachments to the HUD and the DoJ, the commander shall take the
following actions:
a. Cooperate with the HUD, the DoJ, and the local and State agency
representatives during their investigation and processing of the case,
should those entities seek assistance.
b. Periodically determine the status of the case by maintaining
liaison with the HUD office concerned. Contact shall be maintained until
such time as the case is resolved by the HUD.
c. Ensure that the complainant is kept informed directly by the HUD
and/or the DoJ.
d. Ensure that DoD personnel comply with the restrictive sanctions
imposed on the facility and/or the agent. Housing personnel will comply
with the following:
(1) Military personnel moving into or changing their place of
residence in the commuting area of a military installation or activity
may not enter into a rental, purchase, or lease arrangement with an
agent or a facility that is under restrictive sanction.
(2) Implement procedures for ensuring that DoD personnel seeking
housing are made aware of, and are counselled on, current restrictive
sanctions.
(3) Sanctions are not applicable to the DoD personnel who may be
residing in a facility when the sanction is imposed or to the extension
or renewal of a rental or lease agreement originally entered into before
the imposition of the sanction. Relocation of a military tenant within a
restricted facility is prohibited without the written approval of the
commander.
(4) If it is determined that a member of the Armed Forces has
intentionally taken residency in a restricted facility contrary to
instructions received by Housing Referal personnel, the commander shall
take appropriate disciplinary action against that number.
(5) Periodically publish a current listing of restricted facilities
in the base bulletin (or other appropriate means of internal
distribution). Minimally, such publication shall occur when there has
been an addition or deletion to the list.
6. Removal of Restrictive Sanction
a. A facility and/or agent may be removed from restrictive sanction
only if one of the following actions is taken:
[[Page 26]]
(1) The restrictive sanction may be removed before completion of the
180 day restrictive period if an approved waiver request is obtained
from the senior installation commander concerned, or designee.
Consideration shall be given to lifting an imposed sanction only in
exceptional circumstances and in conjunction with a written assurance of
nondiscrimination from the agent concerned.
(2) After completion of 180 days on restrictive sanction, if the
agent provides written assurance of future nondiscrimination to the HRS.
b. The commander shall inform the HRS, the equal opportunity office,
and the agent in writing of the removal from restrictive sanction.
7. ``Privacy Act'' and ``Freedom of Information Act'' Inquiries.
Requests for information from reports of housing discrimination shall be
processed in accordance with 32 CFR parts 285 and 286a.
C. Compliant Procedures--Outside the United States
Commanders of installations or activities outside the United States
shall ensure that all DoD personnel, on reporting to the HRS, are
clearly informed of the scope and provisions of the DoD Equal
Opportunity in Off-Base Housing Program and advised to report
immediately to the HRS any form of discrimination encountered as a
tenant, prospective tenant, or purchaser. Incidents reported to base
agencies or representatives other than the HRS (i.e., equal opportunity
officer, unit commander, supervisor) shall be brought to the immediate
attention of the HRS for appropriate action. On receiving a complaint of
discrimination, the commander and HRS shall:
1. Consult with the Staff Judge Advocate or other cognizant legal
counsel to determine if the laws of the country concerned (or any
subdivision thereof) prohibit any of the actions outlined in this
appendix, section B., above.
2. Take actions outlined in this appendix, section B, above, except
that a HUD Form 903 shall not be completed because reports of cases
arising outside the United States are not forwarded to the HUD or the
DoJ. Complainants should understand that the fair housing provisions of
the P.L. 90-284, ``Civil Rights Act,'' Title 42, United States, 1982,
and Public Law 100-430, ``Fair Housing Amendments Act of 1988,''
September 13, 1988, are not applicable in areas outside the United
States.
3. Determine, with legal advice, whether redress for the
discriminatory act should be sought from authorities in the host
country. Redress shall be based on the laws of the country (or
subdivision thereof) concerned.
D. Reporting Requirements
1. A copy of each complaint and investigative report that
substantiates a housing discrimination shall be submitted to the
appropriate Military Department (manpower and reserve affairs and/or the
equal opportunity office) not later than 45 days from the date the case
is completed. Under normal circumstances, the commander of the
installation concerned shall complete the required investigation and
processing complaints within 45 days from the date that a housing
complaint is filed by a complainant.
2. A copy of complaint and investigative reports that do not
substantiate allegations of housing discrimination shall be kept on file
at the installation level for a 24-month period beginning from the date
the case was completed.
PART 193--HIGHWAYS FOR NATIONAL DEFENSE--Table of Contents
Sec.
193.1 Purpose and scope.
193.2 Applicability.
193.3 Policy.
193.4 Authorities and responsibilities.
Authority: 5 U.S.C. 301.
Source: 33 FR 13016, Sept. 14, 1968, unless otherwise noted.
Sec. 193.1 Purpose and scope.
This part sets forth policy, responsibilities, and authority in
matters pertaining to Department of Defense highway needs and, when
appropriate, to the highway needs of other Federal agencies, during
peacetime and emergencies in the United States and its territories and
possessions.
Sec. 193.2 Applicability.
The provisions of this part apply to all components of the Deparment
of Defense.
Sec. 193.3 Policy.
In order to insure that the national defense is served by adequate,
safe and efficient highway transportation, it shall be the policy of the
DoD to (a) integrate the highway needs of the national defense into the
civil highway programs of the various State and Federal agencies, and
(b) cooperate with those agencies in matters pertaining to the use of
public highways and in planning their development and construction.
[[Page 27]]
Sec. 193.4 Authorities and responsibilities.
(a) The Secretary of the Army, as the Single Manager for Military
Traffic, Land Transportation, and Common-User Ocean Terminals (see DoD
Directive 5160.53, Single Manager Assignment for Military Traffic, Land
Transportation, and Common-User Ocean Terminals, March 24, 1967 (32 FR
5295)), is hereby designated as the Executive Agent for the Department
of Defense (hereinafter referred to as the Executive Agent), in matters
pertaining to public highways to serve the national defense in meeting
both peacetime and mobilization highway transportation needs in the
United States, its territories and possessions; and highway needs of
other Federal agencies, when appropriate. The Executive Agent, or his
designee, under the policy guidance of the Assistant Secretary of
Defense (Installations and Logistics), will:
(1) Coordinate the defense transportation interest in public
highways, including the implementation of subsection (h), section 210 of
Title 23 U.S. Code, and integrate foreseen DoD highway needs and
operational requirements into the highway programs of the United States,
its territories and possessions.
(2) Review and analyze DoD access road needs, and, when appropriate,
those of other Federal agencies from the standpoint of approved
transportation engineering practices, statutory provisions, and policies
and procedures of the Bureau of Public Roads, Department of
Transportation.
(3) Represent the DoD in matters pertaining to highways to serve the
national defense in liaison with the Bureau of Public Roads, the
American Association of State Highway Officials, and other appropriate
Government and non-Government agencies.
(4) Certify on behalf of the Secretary of Defense to the appropriate
Government agency, the public highway needs of the DoD and, when
appropriate, the needs of other Federal agencies, as being important to
the national defense. (See section 210, Title 23, U.S. Code.)
(5) Advise and assist the Assistant Secretary of Defense
(Comptroller) in matters pertaining to the (i) preparation and
justification of budget requirements for defense access road needs, and
(ii) transfer of funds appropriated for this purpose to the Bureau of
Public Roads.
(6) Develop and maintain an efficient relationship between the
design of military vehicles and State and Federal standards for the
design of public highways to ensure the effective and efficient
utilization of such highways by military vehicles.
(7) Provide highway traffic engineering services to DoD components,
when requested.
(8) Insure effective cooperation between the Department of Defense
and state highway authorities in matters pertaining to special defense
utilization of public highways.
(b) The other DoD Components will:
(1) Maintain official liaison with the Executive Agent in matters
pertaining to the provision of public highways to serve the national
defense and the access road needs of new or expanded DoD installations
and activities.
(2) Furnish the Executive Agent with information and data on current
and potential access-road and highway-system needs on request.
(c) The Secretaries of the Military Departments, or their designees,
are authorized to act for the Secretary of Defense under the provisions
of subsection (h) of section 210, Title 23, U.S. Code, in determining,
in connection with the funding of contracts for the construction of
classified military installations and facilities for ballistic missiles,
that construction estimates and the bids of contractors did not include
allowances for repairing road damages.
(d) The Secretaries of the Military Departments and the Directors of
DoD Agencies will program, budget, and finance for the responsibilities
assigned by this part and their access road requirements (see Pub. L.
90-180, Military Construction Appropriation Act, fiscal year 1968, and
successor statutes) in accordance with applicable program and financial
guidelines and procedures.
PART 194 [RESERVED]
[[Page 28]]
PART 195--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE DEPARTMENT OF DEFENSE--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents
Sec.
195.1 Purpose.
195.2 Definitions.
195.3 Application.
195.4 Policy.
195.5 Responsibilities.
195.6 Assurances required.
195.7 Compliance information.
195.8 Conduct of investigations.
195.9 Procedure for effecting compliance.
195.10 Hearings.
195.11 Decisions and notices.
195.12 Judicial review.
195.13 Effect on other issuances.
195.14 Implementation.
Appendix A to Part 195--Programs to Which This Part Applies
Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws
referred to in appendix A.
Source: 29 FR 19291, Dec. 31, 1964, unless otherwise noted.
Redesignated at 56 FR 32965, July 18, 1991.
Sec. 195.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act of 1964 (referred to in this part as the
``Act'') to the end that no person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity receiving Federal
financial assistance from any component of the Department of Defense.
Sec. 195.2 Definitions.
(a) Component means the Office of the Secretary of Defense, a
military department or a Defense agency.
(b) Responsible Department official means the Secretary of Defense
or other official of the Department of Defense or component thereof who
by law or by delegation has the principal responsibility within the
Department or component for the administration of the law extending such
assistance.
(c) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term ``State'' means any one
of the foregoing.
(d) The term Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in
property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(e) The term program includes any program, project, or activity for
the provision of services, financial aid, or other benefits to
individuals, or for the provision of facilities for furnishing services,
financial aid or other benefits to individuals. The services, financial
aid, or other benefits provided under a program receiving Federal
financial assistance shall be deemed to include any services, financial
aid, or other benefits provided with the aid of Federal financial
assistance or with the aid of any non-Federal funds, property, or other
resources required to be expended or made available for the program to
meet matching requirements or other conditions which must be met in
order to receive the Federal financial assistance, and to include any
services, financial aid, or other benefits provided in or through a
facility provided with the aid of Federal financial assistance or such
non-Federal resources.
(f) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
[[Page 29]]
(g) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assign, or transferee thereof, but such term
does not include any ultimate beneficiary under any such program.
(h) The term primary recipient means any recipient which is
authorized or required to extend Federal financial assistance to another
recipient for the purpose of carrying out a program.
(i) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible Department
official, or by a primary recipient, as a condition to eligibility for
Federal financial assistance, and the term ``application'' means such an
application, request or plan.
Sec. 195.3 Application.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by any component of
the Department of Defense, including the federally assisted programs and
activities listed in appendix A of this part. This directive applies to
money paid, property transferred, or other Federal financial assistance
extended under any such program after January 7, 1965 pursuant to an
application approved prior to such date. This directive does not apply
to: (a) Any Federal financial assistance by way of insurance guaranty
contracts, (b) money paid, property transferred, or other assistance
extended under any such program before January 7, 1965, (c) any
assistance to any individual who is the ultimate beneficiary under any
such program, or (d) any employment practice, under any such program, of
any employer, employment agency, or labor organization, except as noted
in Sec. 195.4(b)(5) of this part. The fact that a program or activity
is not listed in appendix A shall not mean, if title VI of the Act is
otherwise applicable, that such program is not covered. Other programs
under statutes now in force or hereinafter enacted may be added to this
list by notice published in the Federal Register.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.4 Policy.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program to which this (part) applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this part applies may not, directly or
through contractual or other arrangements, on the ground of race, color,
or national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) In determining the site or location of facilities, a recipient
may not make selections with the purpose of excluding individuals from,
denying them the benefits of, or subjecting them to discrimination under
any program to which this part applies, on the ground of race, color, or
national origin; or with the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of the Act
or this part.
(iv) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any service, financial aid, or
other benefit under the program;
(v) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(vi) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must meet
in order to be provided any service, financial aid, or
[[Page 30]]
other benefit provided under the program;
(vii) Deny an individual an opportunity to participate in the
program through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program;
(viii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals
of a particular race, color, or national origin.
(3) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(4)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
(5) Where a primary objective of the Federal financial assistance is
not to provide employment, but nevertheless discrimination on the
grounds of race, color or national origin in the employment practices of
the recipient or other persons subject to this Directive tends, on the
grounds of race, color, or national origin of the intended
beneficiaries, to exclude intended beneficiaries from participation in,
to deny them benefits of, or to subject them to discrimination under any
program to which this Directive applies, the recipient or other persons
subject to this Directive are prohibited from (directly or through
contractual or other arrangements) subjecting an individual to
discrimination on the grounds of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising; employment, layoff or termination; upgrading,
demotion or transfer; rates of pay and/or other forms of compensation;
and use of facilities), to the extent necessary to assure equality of
opportunity to, and nondiscriminatory treatment of the beneficiaries.
Any action taken by a component pursuant to this provision with respect
to a state or local agency subject to Standards for a Merit System of
Personnel Administration, 45 CFR part 70, shall be consistent with those
standards and shall be coordinated with the U.S. Civil Service
Commission.
(6) The enumeration of specific forms of prohibited discrimination
in this section does not limit the generality of the prohibition in
paragraph (a) of this section.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973]
Sec. 195.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower) shall be
responsible for insuring that the policies of this part are effectuated
throughout the Department of Defense. He may review from time to time as
he deems necessary the implementation of these policies by the
components of the Department of Defense.
(b) The Secretary of each Military Department is responsible for
implementing this part with respect to programs and activities receiving
financial assistance from his Military Department; and the Assistant
Secretary of Defense (Manpower) is responsible for similarly
implementing this part
[[Page 31]]
with respect to all other components of the Department of Defense. Each
may designate official(s) to fulfill this responsibility in accordance
with Sec. 195.2(b).
(c) The Assistant Secretary of Defense (Manpower) or, after
consultation with the Assistant Secretary of Defense (Manpower), the
Secretary of each Military Department or other responsible Department
official designated by the Assistant Secretary of Defense (Manpower) may
assign to officials of other departments or agencies of the Government,
with the consent of such departments or agencies, responsibilities in
connection with the effectuation of the purposes of Title VI of the Act
and this part (other than responsibility for final decision as provided
in Sec. 195.11), including the achievement of effective coordination
and maximum uniformity within the Department and within the Executive
Branch of the Government in the application of Title VI and this part to
similar programs and in similar situations.
[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. 195.6 Assurances required.
(a) General. (1)(i) Every application for Federal financial
assistance to carry out a program to which this part applies, except a
program to which paragraph (b) of this section applies, and every
application for Federal financial assistance to provide a facility
shall, as a condition to its approval and the extension of any Federal
financial assistance pursuant to the application, contain or be
accompanied by an assurance that the program will be conducted or the
facility operated in compliance with all requirements imposed by or
pursuant to this part.
(ii) In the case where the Federal financial assistance is to
provide or is in the form of personal property, or real property or
interest therein or structures thereon, the assurance shall obligate the
recipient, or, in the case of a subsequent transfer, the transferee, for
the period during which the property or structures are used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services and
benefits, or for as long as the recipient retains ownership or
possession of the property, whichever is longer. In all other cases the
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the application. In
any case in which Federal financial assistance is extended without an
application having been made, such extension shall be subject to the
same assurances as if an application had been made. The responsible
Department official shall specify the form of the foregoing assurances
for each program, and the extent to which like assurances will be
required of subguarantees, contractors and subcontractors, transferees,
successors in interest, and other participants in the program. Any such
assurance shall include provisions which give the United States a right
to seek its judicial enforcement.
(2) In the case of real property, structures or improvements
thereon, or interest therein, which was acquired through a program of
Federal financial assistance, or in the case where Federal financial
assistance is provided in the form of a transfer of real property or
interest therein from the Federal Government, the instrument effecting
or recording the transfer, shall contain a covenant running with the
land assuring nondiscrimination for the period during which the real
property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits, or for as long as the recipient retains
ownership or possession of the property, whichever is longer. Where no
transfer of property is involved, but property is improved under a
program of Federal financial assistance, the recipient shall agree to
include such a covenant in any subsequent transfer of such property.
Where the property is obtained from the Federal Government, such
covenant may also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant where, in the discretion of the responsible
Department official, such a condition and right of reverter is
appropriate to the program under which the real property
[[Page 32]]
is obtained and to the nature of the grant and the grantee. In the event
a transferee of real property proposes to mortgage or otherwise encumber
the real property as security for financing construction of new, or
improvement of existing facilities on such property for the purposes for
which the property was transferred, the responsible Department official
may agree, upon request of the transferee and if necessary to accomplish
such financing, and upon such conditions as he deems appropriate, to
forbear the exercise of such right to revert title for so long as the
lien of such mortgage or other encumbrance remains effective. In
programs receiving Federal financial assistance in the form, or for the
acquisition of real property or an interest in real property, to the
extent that rights to space on, over, or under any such property are
included as part of the program receiving such assistance, the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(3) The assurance required in the case of a transfer of surplus
personal property shall be inserted in a written agreement by and
between the Department of Defense component concerned and the recipient.
(b) Continuing State programs. Every application by a State agency
to carry out a program involving continuing Federal financial assistance
to which this part applies shall as a condition to its approval and the
extension of any Federal financial assistance pursuant to the
application (1) contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the responsible
Department official to give reasonable assurance that the applicant and
all recipients of Federal financial assistance under such program will
comply with all requirements imposed by or pursuant to this part. In
cases of continuing State programs in which applications are not made,
the extension of Federal financial assistance shall be subject to the
same conditions under this subsection as if applications had been made.
(c) Assurances from institutions. (1) In the case of Federal
financial assistance to an institution of higher education, the
assurance required by this section shall extend to admission practices
and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher
education, or any other institution, insofar as the assurance relates to
the institution's practices with respect to admission or other treatment
of individuals as students of the institution or to the opportunity to
participate in the provision of services or other benefits to such
individuals, shall be applicable to the entire institution unless the
applicant establishes, to the satisfaction of the responsible Department
official, that the institution's practices in designated parts or
programs of the institution will in no way affect its practices in the
program of the institution for which Federal financial assistance is
sought, or the beneficiaries of or participants in such program. If in
any such case the assistance sought is for the construction of a
facility or part of a facility, the assurance shall in any event extend
to the entire facility and to facilities operated in connection
therewith.
(d) Elementary and secondary schools. The requirement of paragraph
(a), (b), or (c) of this section, with respect to any elementary or
secondary school or school system shall be deemed to be satisfied if
such school or school system (1) is subject to a final order of a court
of the United States for the desegregation of such school or school
system, and provides an assurance that it will comply with such order,
including any future modification of such order, or (2) submits a plan
for the desegregation of such school or school system which the
responsible official of the Department of Health, Education, and Welfare
determines is adequate to accomplish the purposes of the Act and this
part, and provides reasonable assurance that it will carry out such
plan; in any case of continuing Federal financial assistance the said
Department officer may reserve the right to redetermine, after such
period as may
[[Page 33]]
be specified by him, the adequacy of the plan to accomplish the purpose
of the Act or this part within the earliest practicable time. In any
case in which a final order of a court of the United States for the
desegregation of such school or school system is entered after
submission of such a plan, such plan shall be revised to conform to such
final order, including any future modification of said order.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]
Sec. 195.7 Compliance information.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible Department official timely, complete and
accurate compliance reports at such times, and in such form and
containing such information, as the responsible Department official may
determine to be necessary to enable him to ascertain whether the
recipient has complied or is complying with this part. In general,
recipients should have available for the Department racial and ethnic
data showing the extent to which members of minority groups are
beneficiaries of federally assisted programs. In the case of any program
under which a primary recipient extends Federal financial assistance to
any other recipient, such other recipient shall also submit such
compliance reports to the primary recipient as may be necessary to
enable the primary recipient to carry out its obligations imposed
pursuant to this part.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official during normal business
hours to such of its books, records, accounts, and other sources of
information, and its facilities as may be pertinent to ascertain
compliance with this part. Where any information required of a recipient
is in the exclusive possession of any other institution or person and
this institution or person shall fail or refuse to furnish this
information, the recipient shall so certify in its report and shall set
forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible Department official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]
Sec. 195.8 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official
or his designee(s) shall from time to time review the practices of
recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this part may by himself or by a representative file with the
responsible Department official a written complaint. A complaint must be
filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official.
(c) Investigations. The responsible Department official will make a
prompt investigation whenever a compliance review, report, complaint, or
any other information indicates a possible failure to comply with this
part. The investigation should include, where appropriate, a review of
the pertinent practices and policies of the recipient, the circumstances
under which the possible noncompliance with this part occurred, and
other factors relevant to a determination of whether the recipient has
failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible Department official will so inform the
[[Page 34]]
recipient and the matter will be resolved by informal means whenever
possible. If it has been determined that the matter cannot be resolved
by informal means, action will be taken as provided in Sec. 195.9.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, the responsible Department official
will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall not be disclosed except when necessary to
carry out the purposes of this part including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1974.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.9 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law as determined by the responsible Department
official. Such other means may include, but are not limited to (1) a
reference to the Department of Justice with a recommendation that
appropriate proceedings be brought to enforce any rights of the United
States under any law of the United States (including other titles of the
Act), or any assurance or other contractual undertaking, and (2) any
applicable proceedings under State or local law.
(b) Noncompliance with Sec. 195.6. If an applicant fails or refuses
to furnish an assurance required under Sec. 195.6 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The component of the
Department of Defense concerned shall not be required to provide
assistance in such a case during the pendency of the administrative
proceedings under such paragraph except that the component shall
continue assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application therefor
approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. Except as provided in paragraph (b) of this
section no order suspending, terminating or refusing to grant or
continue Federal financial assistance shall become effective until (1)
the responsible Department official has advised the applicant or
recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means, (2) there has been an express
finding, after opportunity for a hearing (as provided in Sec. 195.10),
of a failure by the applicant or recipient to comply with a requirement
imposed by or pursuant to this part, (3) the action has been approved by
the Secretary of Defense pursuant to Sec. 195.11, and (4) the
expiration of 30 days after the Secretary of Defense has filed with the
committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for such action. Any action
to suspend or terminate or to refuse to grant or to continue Federal
financial assistance shall be limited to the particular political
entity, or part thereof, or other applicant or recipient as to whom such
a finding has been made and shall be limited in its effect to the
particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to affect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the action has been approved
[[Page 35]]
by the Assistant Secretary of Defense (Manpower), (3) the recipient or
other person has been notified of its failure to comply and of the
action to be taken to effect compliance, and (4) the expiration of at
least 10 days from the mailing of such notice to the recipient or other
person. During this period of at least 10 days additional efforts shall
be made to persuade the recipient or other person to comply with this
part and to take such corrective action as may be appropriate.
[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. 195.10 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 195.9, reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and either
(1) fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
Department official that the matter be scheduled for hearing or (2)
advise the applicant or recipient that the matter in question has been
set down for hearing at a stated place and time. The time and place so
fixed shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of hearing.
An applicant or recipient may waive a hearing and submit written
information and argument. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and Sec. 195.11(c) and consent
to the making of a decision on the basis of such information as is
available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the responsible component of the Department of Defense in Washington,
D.C., at a time fixed by the responsible Department official unless he
determines that the convenience of the applicant or recipient or of the
component requires that another place be selected. Hearings shall be
held before the responsible Department official or, at his discretion,
before a hearing examiner designated by him.
(c) Hearing examiner. The examiner shall be a field grade officer or
civilian employee above the grade of GS-12 (or the equivalent) who shall
be a person admitted to practice law before a Federal court or the
highest court of a State.
(d) Right to counsel. In all proceedings under this section, the
applicant or recipient and the responsible component of the Department
shall have the right to be represented by counsel.
(e) Procedures. (1) The recipient shall receive an open hearing at
which he or his counsel may examine any witnesses present. Both the
responsible Department official and the applicant or recipient shall be
entitled to introduce all relevant evidence on the issues as stated in
the notice for hearing or as determined by the officer conducting the
hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for record shall be open
to examination by the parties and opportunity shall be given to refute
facts and arguments advanced on either side of the issues. A transcript
shall be made of the oral evidence except to the extent the substance
thereof is stipulated for the record. All decisions shall be based upon
the hearing record and written findings shall be made.
(f) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with
[[Page 36]]
this part and the regulations of one or more other Federal departments
or agencies issued under Title VI of the Act, the Assistant Secretary of
Defense (Manpower), the Secretary of a Military Department, or other
responsible Department official designated by the Assistant Secretary of
Defense (Manpower) after consultation with the Assistant Secretary of
Defense (Manpower) may, by agreement with such other departments or
agencies where applicable, provide for the conduct of consolidated or
joint hearings, and for the application to such hearings of appropriate
procedures not inconsistent with this part. Final decisions in such
cases, insofar as this part is concerned, shall be made in accordance
with Sec. 195.11.
[29 FR 19291, Dec. 31, 1964, as amended at 30 FR 133, Jan. 7, 1965.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.11 Decisions and notices.
(a) Decision by person other than the responsible department
official. If the hearing is held by a hearing examiner such hearing
examiner shall either make an initial decision, if so authorized, or
certify the entire record including his recommended findings and
proposed decision to the responsible Department official for a final
decision, and a copy of such initial decision or certification shall be
mailed to the applicant or recipient. Where the initial decision is made
by the hearing examiner the applicant or recipient may within 30 days of
the mailing of such notice of initial decision file with the responsible
Department official his exceptions to the initial decision, with his
reasons therefor. In the absence of exceptions, the responsible
Department official may on his own motion within 45 days after the
initial decision serve on the applicant or recipient a notice that he
will review the decision. Upon the filing of such exceptions or of such
notice of review the responsible Department official shall review the
initial decision and issue his own decision thereon including the
reasons therefor. In the absence of either exceptions or a notice of
review the initial decision shall constitute the final decision of the
responsible Department official.
(b) Decisions on record or review by the responsible department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing examiner
pursuant to paragraph (a) of this section or whenever the responsible
Department official conducts the hearing, the applicant or recipient
shall be given reasonable opportunity to file with him briefs or other
written statements of its contentions, and a copy of the final decision
of the responsible Department official shall be given in writing to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 195.10(a), a decision shall be made
by the responsible Department official on the record and a copy of such
decision shall be given in writing to the applicant or recipient, and to
the complainant, if any.
(d) Rulings required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the applicant or recipient has failed to comply.
(e) Approval by the Secretary of Defense. Any final decision of a
responsible Department official which provides for the suspension or
termination of, or the refusal to grant or continue Federal financial
assistance, or the imposition of any other sanction available under this
part or the Act, shall promptly be transmitted to the Secretary of
Defense, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Contents of orders. The final decision may provide for
suspension or termination of, or refusal to grant or continue Federal
financial assistance, in whole or in part, under the program involved,
and may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
part, including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program to the
applicant or recipient determined by such decision to be in
[[Page 37]]
default in its performance of an assurance given by it pursuant to this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies the responsible
Department official that it will fully comply with this part.
(g) Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the applicant or
recipient has met the requirements of paragraph (g)(1) of this section.
If the responsible Department official determines that those
requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request,
the applicant or recipient may submit a request for a hearing in
writing, specifying why it believes such official to have been in error.
It shall thereupon be given an expeditious hearing, with a decision on
the record, in accordance with rules of procedure issued by the
responsible Department official. The applicant or recipient will be
restored to such eligibility if it proves at such a hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this subsection are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.12 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 195.13 Effect on other issuances.
All issuances heretofore issued by any officer of the Department of
Defense or its components which impose requirements designed to prohibit
any discrimination against individuals on the ground of race, color, or
national origin under any program to which this part applies, and which
authorize the suspension or termination of or refusal to grant or to
continue Federal financial assistance to any applicant for or recipient
of such assistance under such program for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any person of any obligation assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to the effective date of this part. Nothing in this
part, however, shall be deemed to supersede any of the following
(including future amendments thereof):
(a) Executive Orders 10925 and 11114 and issuances thereunder,
(b) The ``Standards for a Merit System of Personnel
Administration,'' issued jointly by the Secretaries of Defense, of
Health, Education, and Welfare, and of Labor, 28 FR 734, or
(c) Executive Order 11063 and issuances thereunder, or any other
issuances, insofar as such Order or issuances prohibit discrimination on
the ground of race, color, or national origin in any program or
situation to which this part is inapplicable, or prohibit discrimination
on any other ground.
Sec. 195.14 Implementation.
The Secretary of each Military Department shall submit regulations
implementing this part to the Assistant Secretary of Defense (Manpower).
Appendix A to Part 195--Programs to Which This Part Applies
1. The Army and Air National Guard (Title 32, United States Code).
[[Page 38]]
2. Various programs involving loan or other disposition of surplus
property (various general and specialized statutory provisions
including: 40 United States Code 483, 484, 512; 49 United States Code
1101-1119; 10 United States Code 2541, 2542, 2543, 2572, 2662, 7308,
7541, 7542, 7545, 7546, 7547).
3. National Program for Promotion of Rifle Practice (10 United
States Code 4307 and annual Department of Defense Appropriation Act).
4. National Defense Cadet Corps Program (10 United States Code
3540(b), 4651).
5. Office of Civil Defense assistance to programs of adult education
in civil defense subjects (50 United States Code App. 2281 (e), (f)).
6. Office of Civil Defense radiological instruments grants (50
United States Code App. 2281(h)).
7. Office of Civil Defense program (with Public Health Service) for
development of instructional materials on medical self-help (50 United
States Code App. 2281 (e), (f)).
8. Office of Civil Defense university extension programs for civil
defense instructor training (50 United States Code App. 2281 (e)).
9. Office of Civil Defense programs for survival supplies and
equipment, survival training, emergency operating center construction,
and personnel and administrative expenses (50 United States Code App.
2281(i), 2285).
10. Office of Civil Defense Shelter Provisioning Program (50 United
States Code App. 2281(h)).
11. Office of Civil Defense assistance to students attending Office
of Civil Defense schools (50 United States Code App. 2281(e)).
12. Office of Civil Defense loans of equipment or materials from OCD
stockpiles for civil defense, including local disaster purposes (50
United States Code App. 2281).
13. Navy Science Cruiser Program (SecNav Instruction 5720.19A).
14. Civil Air Patrol (10 United States Code 9441).
15. Research grants made under the authority of Pub. L. 85-934 (42
United States Code 1892).
16. Contracts with nonprofit institutions of higher education or
with nonprofit organizations whose primary purpose is the conduct of
scientific research, wherein title to equipment purchased with funds
under such contracts may be vested in such institutions or organizations
under the authority of Pub. L. 85-934 (42 United States Code 1891).
17. Army Corps of Engineers participation in cooperative
investigations and studies concerning erosion of shores of coastal and
lake waters (33 United States Code 426).
18. Army Corps of Engineers assistance in the construction of works
for the restoration and protection of shores and beaches (33 United
States Code 426e-h).
19. Public park and recreational facilities at water resource
development projects under the administrative jurisdiction of the
Department of the Army (16 United States Code 460d and Federal Water
Project Recreation Act, Pub. L. 89-72, 79 Stat. 218, July 9, 1965).
20. Payment to States of proceeds of lands acquired by the United
States for flood control, navigation, and allied purposes (33 United
States Code 701-c-3).
21. Grants of easements without consideration, or at a nominal or
reduced consideration, on lands under the control of the Department of
the Army at water resource development projects (33 United States Code
558c and 702d-1; 10 United States Code 2668 and 2669); 43 United States
Code 961; 40 United States Code 319).
22. Army Corps of Engineers assistance in the construction of small
boat harbor proj[chyph]ects (33 United States Code 540 and 577, and 47
Stat. 42, Feb. 10, 1932).
23. Emergency bank protection works constructed by the Army Corps of
Engineers for protection of highways, bridge approaches, and public
works (33 United States Code 701r).
24. Assistance to States and local interests in the development of
water supplies for municipal and industrial purposes in connection with
Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43
United States Code 390b).
25. Army Corps of Engineers contracts for remedial works under
authority of section 111 of Act of July 3, 1958 (33 United States Code
633).
[29 FR 19291, Dec. 31, 1964, as amended at 31 FR 6831, May 7, 1966]
PART 196--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A--Introduction
Sec.
196.100 Purpose and effective date.
196.105 Definitions.
196.110 Remedial and affirmative action and self-evaluation.
196.115 Assurance required.
196.120 Transfers of property.
196.125 Effect of other requirements.
196.130 Effect of employment opportunities.
196.135 Designation of responsible employee and adoption of grievance
procedures.
196.140 Dissemination of policy.
Subpart B--Coverage
196.200 Application.
[[Page 39]]
196.205 Educational institutions and other entities controlled by
religious organizations.
196.210 Military and merchant marine educational institutions.
196.215 Membership practices of certain organizations.
196.220 Admissions.
196.225 Educational institutions eligible to submit transition plans.
196.230 Transition plans.
196.235 Statutory amendments.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
196.300 Admission.
196.305 Preference in admission.
196.310 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
196.400 Education programs or activities.
196.405 Housing.
196.410 Comparable facilities.
196.415 Access to course offerings.
196.420 Access to schools operated by LEAs.
196.425 Counseling and use of appraisal and counseling materials.
196.430 Financial assistance.
196.435 Employment assistance to students.
196.440 Health and insurance benefits and services.
196.445 Marital or parental status.
196.450 Athletics.
196.455 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
196.500 Employment.
196.505 Employment criteria.
196.510 Recruitment.
196.515 Compensation.
196.520 Job classification and structure.
196.525 Fringe benefits.
196.530 Marital or parental status.
196.535 Effect of state or local law or other requirements.
196.540 Advertising.
196.545 Pre-employment inquiries.
196.550 Sex as a bona fide occupational qualification.
Subpart F--Procedures
196.600 Notice of covered programs.
196.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52885, Aug. 30, 2000, unless otherwise noted.
Subpart A--Introduction
Sec. 196.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 196.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means Assistant Secretary of Defense
(Force Management Policy).
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by
[[Page 40]]
the Federal agency that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of
[[Page 41]]
Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
196.100 through 196.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 196.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 196.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec.
196.110(a) to eliminate existing discrimination on the basis of sex or
to eliminate the effects of past discrimination whether occurring prior
to or subsequent to the submission to the designated agency official of
such assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the
[[Page 42]]
transferee, for the period during which the real property or structures
are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 196.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 196.205 through 196.235(a).
Sec. 196.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 196.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 196.135 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations.
[[Page 43]]
The recipient shall notify all its students and employees of the name,
office address, and telephone number of the employee or employees
appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 196.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 196.300 through 196.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 196.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B--Coverage
Sec. 196.200 Application.
Except as provided in Sec. Sec. 196.205 through 196.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
Sec. 196.205 Educational institutions and other entities controlled by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes
[[Page 44]]
to claim the exemption set forth in paragraph (a) of this section shall
do so by submitting in writing to the designated agency official a
statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 196.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 196.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 196.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 196.225 and 196.230, and Sec. Sec. 196.300 through
196.310, each administratively separate unit shall be deemed to be an
educational institution.
(c) Application of Sec. Sec. 196.300 through 196.310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 196.300
through 196.310 apply to each recipient. A recipient to which Sec. Sec.
196.300 through 196.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 196.300 through
196.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 196.300 through 196.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Sec. Sec. 196.300 through 196.310 do not apply to any public
institution of undergraduate higher education that traditionally and
continually from its establishment has had a policy of admitting
students of only one sex.
Sec. 196.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 196.300 through 196.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 196.300 through
196.310.
Sec. 196.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 196.225
applies and that is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all such
units, or a separate transition plan applicable to each such unit.
[[Page 45]]
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 196.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 196.300 through
196.310 unless such treatment is necessitated by an obstacle identified
in paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 196.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 196.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
[[Page 46]]
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 196.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 196.300 through Sec. Sec. 196.310 apply,
except as provided in Sec. Sec. 196.225 and Sec. Sec. 196.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 196.300 through 196.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the
[[Page 47]]
basis of sex unless the use of such test or criterion is shown to
predict validly success in the education program or activity in question
and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 196.300 through 196.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 196.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 196.305 Preference in admission.
A recipient to which Sec. Sec. 196.300 through 196.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Sec. Sec. 196.300 through 196.310.
Sec. 196.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
196.300 through 196.310 apply shall not discriminate on the basis of sex
in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as
remedial action pursuant to Sec. 196.110(a), and may choose to
undertake such efforts as affirmative action pursuant to Sec.
196.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 196.300 through 196.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 196.300 through 196.310.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 196.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
196.400 through 196.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Sec. Sec. 196.300 through 196.310 do
not apply, or an entity, not a recipient, to which Sec. Sec. 196.300
through 196.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 196.400
through 196.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
[[Page 48]]
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 196.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization,
[[Page 49]]
or person that provides all or part of such housing to students of only
one sex.
Sec. 196.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 196.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 196.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 196.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
[[Page 50]]
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 196.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 196.450.
Sec. 196.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
196.500 through 196.550.
Sec. 196.440 Health and insurance benefits and services.
Subject to Sec. 196.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 196.500 through 196.550 if it were provided to
employees of the recipient.
[[Page 51]]
This section shall not prohibit a recipient from providing any benefit
or service that may be used by a different proportion of students of one
sex than of the other, including family planning services. However, any
recipient that provides full coverage health service shall provide
gynecological care.
Sec. 196.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 196.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 196.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
[[Page 52]]
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 196.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 196.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 196.500
through 196.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 196.500 through
196.550 apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure,
[[Page 53]]
demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 196.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 196.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 196.500 through 196.550.
Sec. 196.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 196.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 196.550.
Sec. 196.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 196.515.
(b) Prohibitions. A recipient shall not:
[[Page 54]]
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 196.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec.
196.235(d), a recipient shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy, recovery therefrom, and any
temporary disability resulting therefrom as any other temporary
disability for all job-related purposes, including commencement,
duration, and extensions of leave, payment of disability income, accrual
of seniority and any other benefit or service, and reinstatement, and
under any fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 196.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 196.500 through 196.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 196.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 196.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
[[Page 55]]
Sec. 196.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec.
196.500 through 196.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
sex with regard to such action is essential to successful operation of
the employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F--Procedures
Sec. 196.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 196.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 32 CFR 195.7 through 195.12.
[65 FR 52885, Aug. 30, 2000]
PART 199--CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS)--Table of Contents
Sec.
199.1 General provisions.
199.2 Definitions.
199.3 Eligibility.
199.4 Basic program benefits.
199.5 Program for Persons with Disabilities (PFPWD).
199.6 Authorized providers.
199.7 Claims submission, review, and payment.
199.8 Double coverage.
199.9 Administrative remedies for fraud, abuse, and conflict of
interest.
199.10 Appeal and hearing procedures.
199.11 Overpayments recovery.
199.12 Third party recoveries.
199.13 TRICARE Dental Program.
199.14 Provider reimbursement methods.
199.15 Quality and utilization review peer review organization program.
199.16 Supplemental Health Care Program for active duty members.
199.17 TRICARE program.
199.18 Uniform HMO Benefit.
199.20 Continued Health Care Benefit Program (CHCBP).
199.21 Pharmacy Benefits Program.
199.22 TRICARE Retiree Dental Program (TRDP).
Appendix A to Part 199--Acronyms
Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55.
Source: 51 FR 24008, July 1, 1986, unless otherwise noted.
Sec. 199.1 General provisions.
(a) Purpose. This part prescribes guidelines and policies for the
administration of the Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS) for the Army, the Navy, the Air Force, the
Marine Corps, the Coast Guard, the Commissioned Corps of the U.S. Public
Health Service (USPHS) and the Commissioned Corps of the National
Oceanic and Atmospheric Administration (NOAA).
(b) Applicability--(1) Geographic. This part is applicable
geographically within the 50 States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, and the United States
possessions and territories, and in all foreign countries, unless
specific exemptions are granted in writing by the Director, OCHAMPUS, or
a designee.
(2) Agency. The provisions of this part apply throughout the
Department of Defense (DoD), the Coast Guard, the Commissioned Corps of
the USPHS, and the Commissioned Corps of the NOAA.
(c) Authority and responsibility--(1) Legislative authority--(i)
Joint regulations. 10 U.S.C. chapter 55 authorizes
[[Page 56]]
the Secretary of Defense, the Secretary of Health and Human Services,
and the Secretary of Transportation jointly to prescribe regulations for
the administration of CHAMPUS.
(ii) Administration. 10 U.S.C. chapter 55 also authorizes the
Secretary of Defense to administer CHAMPUS for the Army, Navy, Air
Force, and Marine Corps under DoD jurisdiction, the Secretary of
Transportation to administer CHAMPUS for the Coast Guard, when the Coast
Guard is not operating as a service in the Navy, and the Secretary of
Health and Human Services to administer CHAMPUS for the Commissioned
Corps of the NOAA and the USPHS.
(2) Organizational delegations and assignments--(i) Assistant
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to
provide policy guidance, management control and coordination as required
for CHAMPUS, and to develop, issue, and maintain regulations with the
coordination of the Military Departments and consistent with DoD 5025.1-
M.\1\ Additional implementing authority is contained in DoD Directive
5105.46.\2\
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\1\ Copies may be obtained, if needed, from the National Technical
Information Service (NTIS), U.S. Department of Commerce, 5285 Port Royal
Road, Springfield, VA 22161.
\2\ Copies may be obtained; if needed from the Naval Publications
and Forms Center, 5801 Tabor Avenue, Code 301, Philadelphia, PA 19120.
---------------------------------------------------------------------------
(ii) Department of Health and Human Services. The Secretary of
Health and Human Services has delegated authority to the Assistant
Secretary for Health, DHHS, to consult with the Secretary of Defense or
a designee and to approve and issue joint regulations implementing 10
U.S.C. chapter 55. This delegation was effective April 19, 1976 (41 FR
18698, May 6, 1976).
(iii) Department of Transportation. The Secretary of Transportation
has delegated authority to the Commandant, United States Coast Guard, to
consult with the Secretary of Defense or a designee and to approve an
issue joint regulations implementing 10 U.S.C., chapter 55.
(iv) Office of CHAMPUS (OCHAMPUS). By DoD Directive 5105.46,
OCHAMPUS was established as an OSD field activity under the policy
guidance and direction of the ASD(HA). The Director, OCHAMPUS, is
directed to execute the following responsibilities and functions:
(A) Supervise and administer the programs and missions to:
(1) Provide technical direction and guidance on organizational,
administrative, and operational matters.
(2) Conduct studies and research activities in the health care area
to assist in formulating policy required to guide OCHAMPUS in carrying
out its programs.
(3) Enter into agreements through the Department of Defense with
respect to the Military Departments or other U.S. Government entities,
as required, for the effective performance of CHAMPUS.
(4) Supervise and administer OCHAMPUS financial management
activities to include:
(i) Formulating budget estimates and justifications to be submitted
to the Deputy Assistant Secretary of Defense (Administration) (DASD(A))
for inclusion in the overall budget for the Office of the Secretary of
Defense.
(ii) Ensuring the establishment and maintenance of necessary
accounting records and submission of required financial reports to the
DASD(A).
(iii) Ensuring the effective execution of approved budgets.
(5) Contract for claims processing services, studies and research,
supplies, equipment, an other services necessary to carry out the
CHAMPUS programs.
(6) Monitor claims adjudication and processing contracts to ensure
that CHAMPUS fiscal intermediaries are fulfilling their obligations.
(7) Convey appropriate CHAMPUS information to providers of care,
practitioners, professional societies, health industry organizations,
fiscal agents, hospital contractors, and others who have need of such
information.
(8) Collect, maintain, and analyze program cost and utilization data
appropriate for preparation of budgets, fiscal planning, and as
otherwise needed to carry out CHAMPUS programs and missions.
[[Page 57]]
(9) Arrange for the facilities logistical and administrative support
to be provided by the Military Departments.
(10) Execute such other functions as appropriate to administer the
programs and missions assigned.
(B) Direct and control of the office, activities, and functions of
OCHAMPUS Europe (OCHAMPUSEUR).
Note: The Director, OCHAMPUS, may also establish similar offices for
OCHAMPUS Southern Hemisphere (OCHAMPUSSO) and OCHAMPUS Pacific
(OCHAMPUSPAC).
(C) Develop for issuance, subject to approval by the ASD(HA), such
policies or regulations as required to administer and manage CHAMPUS
effectively.
(v) Evidence of eligibility. The Department of Defense, through the
Defense Enrollment Eligibility Reporting System (DEERS), is responsible
for establishing and maintaining a listing of persons eligible to
receive benefits under CHAMPUS. Identification cards or devices bearing
information necessary for preliminary evidence of eligibility, subject
to verification through the DEERS, shall be issued to eligible persons
by the appropriate Uniformed Services (DoD 1341.1-M, ``Defense
Enrollment Eligibility Reporting System (DEERS) Program Manual'').
(d) Medical benefits program. The CHAMPUS is a program of medical
benefits provided by the U.S. Government under public law to specified
categories of individuals who are qualified for these benefits by virtue
of their relationship to one of the seven Uniformed Services. Although
similar in structure in many of its aspects, CHAMPUS is not an insurance
program in that it does not involve a contract guaranteeing the
indemnification of an insured party against a specified loss in return
for a premium paid. Further, CHAMPUS is not subject to those state
regulatory bodies or agencies that control the insurance business
generally.
(e) Program funds. The funds used by CHAMPUS are appropriated funds
furnished by the Congress through the annual appropriation acts for the
Department of Defense and the DHHS. These funds are further disbursed by
agents of the government under contracts negotiated by the Director,
OCHAMPUS, or a designee, under the provisions of the Federal Aquisition
Regulation (FAR). These agents (referred to in this part as CHAMPUS
fiscal intermediaries) receive claims against CHAMPUS and adjudicate the
claims under this part and in accordance with administrative procedures
and instructions prescribed in their contracts. The funds expended for
CHAMPUS benefits are federal funds provided CHAMPUS fiscal
intermediaries solely to pay CHAMPUS claims, and are not a part of or
obtained from the CHAMPUS fiscal intermediary's funds related to other
programs or insurance coverage. CHAMPUS fiscal intermediaries are
reimbursed for the adjudication and payment of CHAMPUS claims at a rate
(generally fixed-price) prescribed in their contracts.
(f) Claims adjudication and processing. The Director, OCHAMPUS, is
responsible for making such arrangements as are necessary to adjudicate
and process CHAMPUS claims worldwide.
(1) The United States--(i) Contracting out. The primary method of
processing CHAMPUS claims in the United States is through competitively
procured, fixed-price contracts. The Director, OCHAMPUS, or a designee,
is responsible for negotiating, under the provisions of the FAR,
contracts for the purpose of adjudicating and processing CHAMPUS claims
(and related supporting activities).
(ii) In-house. The Director, OCHAMPUS, or a designee, is authorized
to adjudicate and process certain CHAMPUS claims in-house at OCHAMPUS,
when it is determined to be in the best interests of CHAMPUS subject to
applicable considerations set forth in OMB Circular A-76. Such in-house
claims processing may involve special or unique claims, or all claims
for a specific geographic area.
(2) Outside the United States--(i) Special subsidiary office or
contracting out. For adjudicating and processing CHAMPUS claims for
services or supplies provided outside the United States, the Director,
OCHAMPUS, or a designee, has the option of either setting up a special
subsidiary claims paying operation (such as OCHAMPUSEUR) or contracting
out as described in paragraph (f)(1)(i) of this
[[Page 58]]
section. Such claims paying operations are reviewed periodically to
determine whether current arrangements continue to be appropriate and
the most effective.
(ii) Support agreements. In those situations outside the United
States that demand special arrangements, the Director, OCHAMPUS, may
enter into support agreements through the Department of Defense with any
of the Military Departments or other government agency to process
CHAMPUS claims in specific geographic locations. Such agreements may be
negotiated for such period of time as the Director, OCHAMPUS, or
designee, may determine to be necessary to meet identified special
demands.
(g) Recommendations for change to part. The Director, OCHAMPUS, or a
designee, shall establish procedures for receiving and processing
recommendations for changes to this part from interested parties.
(h) CHAMPUS, claims forms. The Director, OCHAMPUS, or a designee, is
responsible for the development and updating of all CHAMPUS claim forms
and any other forms necessary in the administration of CHAMPUS.
(i) The CHAMPUS handbook. The Director, OCHAMPUS, or a designee,
shall develop the CHAMPUS, Handbook. The CHAMPUS Handbook is a general
program guide for the use of CHAMPUS beneficiaries and providers and
shall be updated, as required.
(j) Program integrity. The Director, OCHAMPUS, or a designee, shall
oversee all CHAMPUS personnel, fiscal intermediaries, providers, and
beneficiaries to ensure compliance with this part. The Director,
OCHAMPUS, or a designee, shall accomplish this by means of proper
delegation of authority, separation of responsibilities, establishment
of reports, performance evaluations, internal and external management
and fiscal audits, personal or delegated reviews of CHAMPUS
responsibilities, taking affidavits, exchange of information among state
and Federal governmental agencies, insurers, providers and associations
of providers, and such other means as may be appropriate. Compliance
with law and this part shall include compliance with specific contracts
and agreements, regardless of form, and general instructions, such as
CHAMPUS policies, instructions, procedures, and criteria relating to
CHAMPUS operation.
(k) Role of CHAMPUS Health Benefits Advisor (HBA). The CHAMPUS HBA
is appointed (generally by the commander of a Uniformed Services medical
treatment facility) to serve as an advisor to patients and staff in
matters involving CHAMPUS. The CHAMPUS HBA may assist beneficiaries or
sponsors in applying for CHAMPUS benefits, in the preparation of claims,
and in their relations with OCHAMPUS and CHAMPUS fiscal intermediaries.
However, the CHAMPUS HBA is not responsible for CHAMPUS policies and
procedures and has no authority to make benefit determinations or
obligate Government funds. Advice given to beneficiaries as to
determination of benefits or level of payment is not binding on OCHAMPUS
or CHAMPUS fiscal intermediaries.
(l) Cooperation and exchange of information with other Federal
programs. The Director, OCHAMPUS, or a designee, shall disclose to
appropriate officers or employees of the DHHS:
(1) Investigation for fraud. The name and address of any physician
or other individual actively being investigated for possible fraud in
connection with CHAMPUS, and the nature of such suspected fraud. An
active investigation exists when there is significant evidence
supporting an initial complaint but there is need for further
investigation.
(2) Unnecessary services. The name and address of any provider of
medical services, organization, or other person found, after
consultation with an appropriate professional association or appropriate
peer review body, to have provided unnecessary services. Such
information will be released only for the purpose of conducting an
investigation or prosecution, or for the administration of titles XVIII
and XIX of the Social Security Act, provided that the information will
be released only to the agency's enforcement branch and that the agency
will preserve the confidentiality of the information received and will
not disclose such information for other than program purposes.
[[Page 59]]
(m) Disclosure of information to the public. Records and information
acquired in the administration of CHAMPUS are records of the Department
of Defense and may be disclosed in accordance with DoD Directive
5400.7\3\, DoD 5400.7-R\4\, and DoD 5400.11-R\5\ (codified in 32 CFR
parts 286 and 286a), constituting the applicable DoD Directives and DoD
Regulations implementing the Freedom of Information and the Privacy
Acts.
---------------------------------------------------------------------------
\3\ See footnote 2 to Sec. 199.1(c)(2)(i)
\4\ See footnote 1 to Sec. 199.1(c)(2)(i)
\5\ See footnote 1 to Sec. 199.1(c)(2)(i)
---------------------------------------------------------------------------
(n) Discretionary authority. When it is determined to be in the best
interest of CHAMPUS, the Director, OCHAMPUS, or a designee, is granted
discretionary authority to waive any requirements of this part, except
that any requirement specifically set forth in 10 U.S.C. chapter 55, or
otherwise imposed by law, may not be waived. It is the intent that such
discretionay authority be used only under very unusual and limited
circumstances and not to deny any individual any right, benefit, or
privilege provided to him or her by statute or this part. Any such
exception granted by the Director, OCHAMPUS, or a designee, shall apply
only to the individual circumstance or case involved and will in no way
be construed to be precedent-setting.
(o) Demonstration projects. (1) Authority. The Director, OCHAMPUS
may waive or alter any requirements of this regulation in connection
with the conduct of a demonstration project required or authorized by
law except for any requirement that may not be waived or altered
pursuant to 10 U.S.C. chapter 55, or other applicable law.
(2) Procedures. At least 30 days prior to taking effect, OCHAMPUS
shall publish a notice describing the demonstration project, the
requirements of this regulation being waived or altered under paragraph
(o)(1) of this section and the duration of the waiver or alteration.
Consistent with the purpose and nature of demonstration projects, these
notices are not covered by public comment practices under DoD Directive
5400.9 (32 CFR part 296) or DoD Instruction 6010.8.
(3) Definition. For purposes of this section, a ``demonstration
project'' is a project of limited duration designed to test a different
method for the finance, delivery or administration of health care
activities for the uniformed services. Demonstration projects may be
required or authorized by 10 U.S.C. 1092, any other statutory provision
requiring or authorizing a demonstration project or any other provision
of law that authorizes the activity involved in the demonstration
project.''.
(p) Military-Civilian Health Services Partnership Program. The
Secretary of Defense, or designee, may enter into an agreement (external
or internal) providing for the sharing of resources between facilities
of the uniformed services and facilities of a civilian health care
provider or providers if the Secretary determines that such an agreement
would result in the delivery of health care in a more effective,
efficient or economical manner. This partnership allows CHAMPUS
beneficiaries to receive inpatient and outpatient services through
CHAMPUS from civilian personnel providing health care services in
military treatment facilities and from uniformed service professional
providers in civilian facilities. The policies and procedures by which
partnership agreements may be executed are set forth in Department of
Defense Instruction (DoDI) 6010.12, ``Military-Civilian Health Services
Partnership Program.'' The Director, OCHAMPUS, or a designee, shall
issue policies, instructions, procedures, guidelines, standards, or
criteria as may be necessary to provide support for implementation of
DoDI 6010.12, to promulgate and manage benefit and financial policy
issues, and to develop a program evaluation process to ensure the
Partnership Program accomplishes the purpose for which it was developed.
(1) Partnership agreements. Military treatment facility commanders,
based upon the authority provided by their representative Surgeons
General of the military departments, are responsible for entering into
individual partnership agreements only when they have determined
specifically that use of the Partnership Program is more economical
overall to the Government than referring the need for health care
services
[[Page 60]]
to the civilian community under the normal operation of the CHAMPUS
Program. All such agreements are subject to the review and approval of
the Director, OCHAMPUS, or designee, and the appropriate Surgeon
General.
(i) External Partnership Agreements. The external partnership
agreement is an agreement between a military treatment facility
Commander and a CHAMPUS-authorized institutional provider, enabling
Uniformed Services health care personnel to provide otherwise covered
medical care to CHAMPUS beneficiaries in a civilian facility. Authorized
costs associated with the use of the facility will be financed through
CHAMPUS under normal cost-sharing and reimbursement procedures currently
applicable under the basic CHAMPUS. Savings will be realized under this
type of agreement by using available military health care personnel to
avoid the civilian professional provider charges which would otherwise
be billed to CHAMPUS.
(ii) Internal Partnership Agreements. The internal partnership
agreement is an agreement between a military treatment facility
commander and a CHAMPUS-authorized civilian health care provider which
enables the use of civilian health care personnel or other resources to
provide medical care to CHAMPUS beneficiaries on the premises of a
military treatment facility. These internal agreements may be
established when a military treatment facility is unable to provide
sufficient health care services for CHAMPUS beneficiaries due to
shortages of personnel and other required resources. In addition to
allowing the military treatment facility to achieve maximum use of
available facility space, the internal agreement will result in savings
to the Government by using civilian medical specialists to provide
inpatient care in Government-owned facilities, thereby avoiding the
civilian facility charges which would have otherwise been billed to
CHAMPUS.
(2) Beneficiary Cost-Sharing. Beneficiary cost-sharing under the
Partnership Program is outlined in Sec. 199.4(f)(5) of this part.
(3) Reimbusement. Reimbursement under the Partnership Program is
outlined in Sec. 199.14(f) of this part.
(4) Beneficiary Eligibility and Authorized Providers. Existing
requirements of this Regulation remain in effect as concerns beneficiary
eligibility and authorized providers.
(5) Range of Benefits. Health care services provided CHAMPUS
beneficiaries under the terms of the Partnership Program must be
consistent with the CHAMPUS range of benefits outlined in this
Regulation. The services rendered must be otherwise covered. Charges
allowed for professional services provided under the Partnership Program
may include costs of support personnel, equipment, and supplies when
specifically outlined in the partnership agreement, However, all CHAMPUS
coverage and provider requirements must be met.
(q) Equality of benefits. All claims submitted for benefits under
CHAMPUS shall be adjudicated in a consistent, fair, and equitable
manner, without regard to the rank of the sponsor.
(r) TRICARE program. Many rules and procedures established in
sections of this part are subject to revision in areas where the TRICARE
program is implemented. The TRICARE program is the means by which
managed care activities designed to improve the delivery and financing
of health care services in the Military Health Services System(MHSS) are
carried out. Rules and procedures for the TRICARE program are set forth
in Sec. 199.17.
[51 FR 24008, July 1, 1986, as amended at 52 FR 38754, Oct. 19, 1987; 53
FR 27961, July 26, 1988; 55 FR 43338, Oct. 29, 1990; 60 FR 52094, Oct.
5, 1995]
Sec. 199.2 Definitions.
(a) General. In an effort to be as specific as possible as to the
word and intent of CHAMPUS, the following definitions have been
developed. While many of the definitions are general and some assign
meaning to relatively common terms within the health insurance
environment, others are applicable only to CHAMPUS; however, they all
appear in this part solely for the purpose of the Program. Except when
otherwise specified, the definitions in this section apply generally
throughout this part.
(b) Specific definitions.
[[Page 61]]
Abortion. Abortion means the intentional termination of a pregnancy
by artificial means done for a purpose other than that of producing a
live birth. A spontaneous, missed or threatened abortion or termination
of an ectopic (tubal) pregnancy are not included within the term
``abortion'' as used herein.
Absent treatment. Services performed by Christian Science
practitioners for a person when the person is physically present.
Note: Technically, ``Absent Treatment'' is an obsolete term. The
current Christian Science terminology is ``treatment through prayer and
spiritual means,'' which is employed by an authorized Christian Science
practitioner either with the beneficiary being present or absent.
However, to be considered for coverage under CHAMPUS, the beneficiary
must be present physically when a Christian Science service is rendered,
regardless of the terminology used.
Abuse. For the purposes of this part, abuse is defined as any
practice that is inconsistent with accepted sound fiscal, business, or
professional practice which results in a CHAMPUS claim, unnecessary
cost, or CHAMPUS payment for services or supplies that are: (1) Not
within the concepts of medically necessary and appropriate care, as
defined in this part, or (2) that fail to meet professionally recognized
standards for health care providers. The term ``abuse'' includes
deception or misrepresentation by a provider, or any person or entity
acting on behalf of a provider in relation to a CHAMPUS claim.
Note: Unless a specific action is deemed gross and flagrant, a
pattern of inappropriate practice will normally be required to find that
abuse has occurred. Also, any practice or action that constitutes fraud,
as defined by this part, would also be abuse.
Abused dependent. An eligible spouse or child, who meets the
criteria in Sec. 199.3 of this part, of a former member who received a
dishonorable or bad-conduct discharge or was dismissed from a Uniformed
Service as a result of a court-martial conviction for an offense
involving physical or emotional abuse or was administratively discharged
as a result of such an offense, or of a member or former member who has
had their entitlement to receive retired pay terminated because of
misconduct involving physical or emotional abuse.
Accidental injury. Physical bodily injury resulting from an external
force, blow or fall, or the ingestion of a foreign body or harmful
substance, requiring immediate medical treatment. Accidental injury also
includes animal and insect bites and sunstrokes. For the purpose of
CHAMPUS, the breaking of a tooth or teeth does not constitute a physical
bodily injury.
Active duty. Full-time duty in the Uniformed Services of the United
States. It includes duty on the active list, full-time training duty,
annual training duty, and attendance while in the active Military
Service, at a school designated as a Service school by law or by the
Secretary of the Military Department concerned.
Active duty member. A person on active duty in a Uniformed Service
under a call or order that does not specify a period of 30 days or less.
Acupuncture. The practice of inserting needles into various body
parts to pierce specific peripheral nerves for the production of
counter-irritation to relieve the discomfort of pain, induce surgical
anesthesia, or for other treatment purposes.
Note: Acupuncture is not covered by CHAMPUS.
Adequate Medical Documentation, Medical Treatment Records. Adequate
medical documentation contains sufficient information to justify the
diagnosis, the treatment plan, and the services and supplies furnished.
Under CHAMPUS, it is required that adequate and sufficient clinical
records be kept by the health care provider(s) to substantiate that
specific care was actually and appropriately furnished, was medically
necessary and appropriate (as defined by this part), and to identify the
individual(s) who provided the care. All procedures billed must be
documented in the records. In determining whether medical records are
adequate, the records will be reviewed under the generally acceptable
standards such as the applicable Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) standards, the Peer Review Organization
(PRO) standards
[[Page 62]]
(and the provider's state or local licensing requirements) and other
requirements specified by this part. In general, the documentation
requirements for a professional provider are not less in the outpatient
setting than the inpatient setting.
Adequate Medical Documentation, Mental Health Records. Adequate
medical documentation provides the means for measuring the type,
frequency, and duration of active treatment mechanisms employed and
progress under the treatment plan. Under CHAMPUS, it is required that
adequate and sufficient clinical records be kept by the provider to
substantiate that specific care was actually and appropriately
furnished, was medically or psychologically necessary (as defined by
this part), and to identify the individual(s) who provided the care.
Each service provided or billed must be documented in the records. In
determining whether medical records are adequate, the records will be
reviewed under the generally acceptable standards (e.g., the applicable
JCAHO standards and the provider's state or local licensing
requirements) and other requirements specified by this part. It must be
noted that the psychiatric and psychological evaluations, physician
orders, the treatment plan, integrated progress notes (and physician
progress notes if separate from the integrated progress notes), and the
discharge summary are the more critical elements of the mental health
record. However, nursing and staff notes, no matter how complete, are
not a substitute for the documentation of services by the individual
professional provider who furnished treatment to the beneficiary. In
general, the documentation requirements of a professional provider are
not less in the outpatient setting than the inpatient setting.
Furthermore, even though a hospital that provides psychiatric care may
be accredited under the JCAHO manual for hospitals rather than the
consolidated standards manual, the critical elements of the mental
health record listed above are required for CHAMPUS claims.
Adjunctive dental care. Dental care which is medically necessary in
the treatment of an otherwise covered medical (not dental) condition, is
an integral part of the treatment of such medical condition and is
essential to the control of the primary medical condition; or, is
required in preparation for or as the result of dental trauma which may
be or is caused by medically necessary treatment of an injury or disease
(iatrogenic).
Admission. The formal acceptance by a CHAMPUS authorized
institutional provider of a CHAMPUS beneficiary for the purpose of
diagnosis and treatment of illness, injury, pregnancy, or mental
disorder.
Adopted Child. A child taken into one's own family by legal process
and treated as one's own child. In case of adoption, CHAMPUS eligibility
begins as of 12:01 a.m. of the day of the final adoption decree.
Note: There is no CHAMPUS benefit entitlement during any interim
waiting period.
All-Inclusive Per Diem Rate. The OCHAMPUS determined rate that
encompasses the daily charge for inpatient care and, unless specifically
excepted, all other treatment determined necessary and rendered as part
of the treatment plan established for a patient, and accepted by
OCHAMPUS.
Allowable charge. The CHAMPUS-determined level of payment to
physicians, other individual professional providers and other providers,
based on one of the approved reimbursement methods set forth in Sec.
199.14 of this part. Allowable charge also may be referred to as the
CHAMPUS-determined reasonable charge.
Allowable cost. The CHAMPUS-determined level of payment to hospitals
or other insitutions, based on one of the approved reimbursement methods
set fourth in Sec. 199.14 of this part. Allowable cost may also be
referred to as the CHAMPUS-determined reasonable cost.
Ambulance. A specially designed vehicle for transporting the sick or
injured that contains a stretcher, linens, first aid supplies, oxygen
equipment, and such lifesaving equipment required by state and local
law, and that is staffed by personnel trained to provide first aid
treatment.
Amount in dispute. The amount of money, determined under this part,
that CHAMPUS would pay for medical services and supplies involved in an
adverse determination being appealed if
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the appeal were resolved in favor of the appealing party. See Sec.
199.10 for additional information concerning the determination of
``amount in dispute'' under this part.
Anesthesia services. The administration of an anesthetic agent by
injection or inhalation, the purpose and effect of which is to produce
surgical anesthesia characterized by muscular relaxation, loss of
sensation, or loss of consciousness when administered by or under the
direction of a physician or dentist in connection with otherwise covered
surgery or obstetrical care, or shock therapy. Anesthesia services do
not include hypnosis or acupuncture.
Appealable issue. Disputed questions of fact which, if resolved in
favor of the appealing party, would result in the authorization of
CHAMPUS benefits, or approval as an authorized provider in accordance
with this part. An appealable issue does not exist if no facts are in
dispute, if no CHAMPUS benefits would be payable, or if there is no
authorized provider, regardless of the resolution of any disputed facts.
See Sec. 199.10 for additional information concerning the determination
of ``appealable issue'' under this part.
Appealing party. Any party to the initial determination who files an
appeal of an adverse determination or requests a hearing under the
provisions of this part.
Appropriate medical care. (i) Services performed in connection with
the diagnosis or treatment of disease or injury, pregnancy, mental
disorder, or well-baby care which are in keeping with the generally
accepted norms for medical practice in the United States;
(ii) The authorized individual professional provider rendering the
medical care is qualified to perform such medical services by reason of
his or her training and education and is licensed or certified by the
state where the service is rendered or appropriate national organization
or otherwise meets CHAMPUS standards; and
(iii) The services are furnished economically. For purposes of this
part, ``economically'' means that the services are furnished in the
least expensive level of care or medical environment adequate to provide
the required medical care regardless of whether or not that level of
care is covered by CHAMPUS.
Approved teaching programs. For purposes of CHAMPUS, an approved
teaching program is a program of graduate medical education which has
been duly approved in its respective specialty or subspecialty by the
Accreditation Council for Graduate Medical Education of the American
Medical Association, by the Committee on Hospitals of the Bureau of
Professional Education of the American Osteopathic Association, by the
Council on Dental Education of the American Dental Association, or by
the Council on Podiatry Education of the American Podiatry Association.
Assistant Secretary of Defense (Health Affairs). An authority of the
Assistant Secretary of Defense (Health Affairs) includes any person
designated by the Assistant Secretary to exercise the authority
involved.
Attending physician. The physician who has the primary
responsibility for the medical diagnosis and treatment of the patient. A
consultant or an assistant surgeon, for example, would not be an
attending physician. Under very extraordinary circumstances, because of
the presence of complex, serious, and multiple, but unrelated, medical
conditions, a patient may have more than one attending physician
concurrently rendering medical treatment during a single period of time.
An attending physician also may be a teaching physician.
Authorized provider. A hospital or institutional provider,
physician, or other individual professional provider, or other provider
of services or supplies specifically authorized to provide benefits
under CHAMPUS in Sec. 199.6 of this part.
Backup hospital. A hospital which is otherwise eligible as a CHAMPUS
institutional provider and which is fully capable of providing emergency
care to a patient who develops complications beyond the scope of
services of a given category of CHAMPUS-authorized freestanding
institutional provider and which is accessible from the site of the
CHAMPUS-authorized freestanding institutional provider within an average
transport time acceptable for the types
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of medical emergencies usually associated with the type of care provided
by the freestanding facility.
Balance billing. A provider seeking any payment, other than any
payment relating to applicable deductible and cost sharing amounts, from
a beneficiary for CHAMPUS covered services for any amount in excess of
the applicable CHAMPUS allowable cost or charge.
Basic program. The primary medical benefits authorized under chapter
55 of title 10 U.S. Code, and set forth in Sec. 199.4 of this part.
Beneficiary. An individual who has been determined to be eligible
for CHAMPUS benefits, as set forth in Sec. 199.3 of this part.
Beneficiary liability. The legal obligation of a beneficiary, his or
her estate, or responsible family member to pay for the costs of medical
care or treatment received. Specifically, for the purposes of services
and supplies covered by CHAMPUS, beneficiary liability includes any
annual deductible amount, cost-sharing amounts, or, when a provider does
not submit a claim on a participating basis on behalf of the
beneficiary, amounts above the CHAMPUS-determined allowable cost or
charge. Beneficiary liability also includes any expenses for medical or
related services and supplies not covered by CHAMPUS.
Birthing center. A health care provider which meets the applicable
requirements established by Sec. 199.6(b) of this part.
Birthing room. A room and environment designed and equipped to
provide care, to accommodate support persons, and within which a woman
with a low-risk, normal, full-term pregnancy can labor, deliver and
recover with her infant.
Brace. An orthopedic appliance or apparatus (an orthosis) used to
support, align, or hold parts of the body in correct position. For the
purposes of CHAMPUS, it does not include orthodontic or other dental
appliances.
Capped Rate. The maximum per diem or all-inclusive rate that CHAMPUS
will allow for care.
Case management. Case management is a collaborative process which
assesses, plans, implements, coordinates, monitors, and evaluates the
options and services required to meet an individual's health needs,
using communication and available resources to promote quality, cost
effective outcomes.
Case managers. A licensed registered nurse, licensed clinical social
worker, licensed psychologist or licensed physician who has a minimum of
two (2) years case management experience.
Certified nurse-midwife. An individual who meets the applicable
requirements established by Sec. 199.6(c) of this part.
Certified psychiatric nurse specialist. A licensed, registered nurse
who meets the criteria in Sec. 199.6(c)(3)(iii)(G).
CHAMPUS DRG-Based Payment System. A reimbursement system for
hospitals which assigns prospectively-determined payment levels to each
DRG based on the average cost of treating all CHAMPUS patients in a
given DRG.
CHAMPUS fiscal intermediary. An organization with which the
Director, OCHAMPUS, has entered into a contract for the adjudication and
processing of CHAMPUS claims and the performance of related support
activities.
CHAMPUS Health Benefits Advisors (HBAs). Those individuals located
at Uniformed Services medical facilities (on occasion at other
locations) and assigned the responsibility for providing CHAMPUS
information, information concerning availability of care from the
Uniformed Services direct medical care system, and generally assisting
beneficiaries (or sponsors). The term also includes ``Health Benefits
Counselor'' and ``CHAMPUS Advisor.''
Chemotherapy. The administration of approved antineoplastic drugs
for the treatment of malignancies (cancer) via perfusion, infusion, or
parenteral methods of administration.
Child. An unmarried child of a member or former member, who meets
the criteria (including age requirements) in Sec. 199.3 of this part.
Chiropractor. A practitioner of chiropractic (also called
chiropraxis); essentially a system of therapeutics based upon the claim
that disease is caused by abnormal function of the nerve system. It
attempts to restore normal
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function of the nerve system by manipulation and treatment of the
structures of the human body, especially those of the spinal column.
Note: Services of chiropractors are not covered by CHAMPUS.
Christian science nurse. An individual who has been accredited as a
Christian Science Nurse by the Department of Care of the First Church of
Christ, Scientist, Boston, Massachusetts, and listed (or eligible to be
listed) in the Christian Science Journal at the time the service is
provided. The duties of Christian Science nurses are spiritual and are
nonmedical and nontechnical nursing care performed under the direction
of an accredited Christian Science practitioner. There exist two levels
of Christian Science nurse accreditation:
(i) Graduate Christian Science nurse. This accreditation is granted
by the Department of Care of the First Church of Christ, Scientist,
Boston, Massachusetts, after completion of a 3-year course of
instruction and study.
(ii) Practical Christian Science nurse. This accreditation is
granted by the Department of Care of the First Church of Christ,
Scientist, Boston, Massachusetts, after completion of a 1-year course of
instruction and study.
Christian Science practitioner. An individual who has been
accredited as a Christian Science Practitioner for the First Church,
Scientist, Boston, Massachusetts, and listed (or eligible to be listed)
in the Christian Science Journal at the time the service is provided. An
individual who attains this accreditation has demonstrated results of
his or her healing through faith and prayer rather than by medical
treatment. Instruction is executed by an accredited Christian Science
teacher and is continuous.
Christian Science sanatorium. A sanatorium either operated by the
First Church of Christ, Scientist, or listed and certified by the First
Church of Christ, Scientist, Boston, Massachusetts.
Chronic medical condition. A medical condition that is not curable,
but which is under control through active medical treatment. Such
chronic conditions may have periodic acute episodes and may require
intermittent inpatient hospital care. However, a chronic medical
condition can be controlled sufficiently to permit generally
continuation of some activities of persons who are not ill (such as work
and school).
Chronic renal disease (CRD). The end stage of renal disease which
requires a continuing course of dialysis or a kidney transplantation to
ameliorate uremic symptoms and maintain life.
Clinical psychologist. A psychologist, certified or licensed at the
independent practice level in his or her state, who meets the criteria
in Sec. 199.6(c)(3)(iii)(A).
Clinical social worker. An individual who is licensed or certified
as a clinical social worker and meets the criteria listed in Sec.
199.6.
Clinically Meaningful Endpoints. As used the definition of reliable
evidence in this paragraph (b) and Sec. 199.4(g)(15), the term
clinically meaningful endpoints means objectively measurable outcomes of
clinical interventions or other medical procedures, expressed in terms
of survival, severity of illness or condition, extent of adverse side
effects, diagnostic capability, or other effect on bodily functions
directly associated with such results.
Collateral visits. Sessions with the patient's family or significant
others for purposes of information gathering or implementing treatment
goals.
Combined daily charge. A billing procedure by an inpatient facility
that uses an inclusive flat rate covering all professional and ancillary
charges without any itemization.
Complications of pregnancy. One of the following, when commencing or
exacerbating during the term of the pregnancy:
(i) Caesarean delivery; hysterotomy.
(ii) Pregnancy terminating before expiration of 26 weeks, except a
voluntary abortion.
(iii) False labor or threatened miscarriage.
(iv) Nephritis or pyelitis of pregnancy.
(v) Hyperemesis gravidarum.
(vi) Toxemia.
(vii) Aggravation of a heart condition or diabetes.
(viii) Premature rupture of membrane.
(ix) Ectopic pregnancy.
(x) Hemorrhage.
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(xi) Other conditions as may be determined by the Director,
OCHAMPUS, or a designee.
Confinement. That period of time from the day of admission to a
hospital or other institutional provider, to the day of discharge,
transfer, or separation from the facility, or death. Successive
admissions also may qualify as one confinement provided not more than 60
days have elapsed between the successive admissions, except that
successive admissions related to a single maternity episode shall be
considered one confinement, regardless of the number of days between
admissions.
Conflict of Interest. Includes any situation where an active duty
member (including a reserve member while on active duty) or civilian
employee of the United States Government, through an official federal
position, has the apparent or actual opportunity to exert, directly or
indirectly, any influence on the referral of CHAMPUS beneficiaries to
himself or herself or others with some potential for personal gain or
appearance of impropriety. For purposes of this part, individuals under
contract to a Uniformed Service may be involved in a conflict of
interest situation through the contract position.
Congenital anomaly. A condition existing at or from birth that is a
significant deviation from the common form or norm and is other than a
common racial or ethnic feature. For purposes of CHAMPUS, congenital
anomalies do not include anomalies relating to teeth (including
malocclusion or missing tooth buds) or structures supporting the teeth,
or to any form of hermaphroditism or sex gender confusion. Examples of
congenital anomalies are harelip, birthmarks, webbed fingers or toes, or
such other conditions that the Director, OCHAMPUS, or a designee, may
determine to be congenital anomalies.
Note: Also refer to Sec. 199.4(e)(7) of this part.
Consultation. A deliberation with a specialist physician or dentist
requested by the attending physician primarily responsible for the
medical care of the patient, with respect to the diagnosis or treatment
in any particular case. A consulting physician or dentist may perform a
limited examination of a given system or one requiring a complete
diagnostic history and examination. To qualify as a consultation, a
written report to the attending physician of the findings of the
consultant is required.
Note: Staff consultations required by rules and regulations of the
medical staff of a hospital or other institutional provider do not
qualify as consultation.
Consulting physician or dentist. A physician or dentist, other than
the attending physician, who performs a consultation.
Conviction. For purposes of this part, ``conviction'' or
``convicted'' means that (1) a judgment of conviction has been entered,
or (2) there has been a finding of guilt by the trier of fact, or (3) a
plea of guilty or a plea of nolo contendere has been accepted by a court
of competent jurisdiction, regardless of whether an appeal is pending.
Coordination of benefits. The coordination, on a primary or
secondary payer basis, of the payment of benefits between two or more
health care coverages to avoid duplication of benefit payments.
Corporate services provider. A health care provider that meets the
applicable requirements established by Sec. 199.6(f).
Cosmetic, reconstructive, or plastic surgery. Surgery that can be
expected primarily to improve the physical appearance of a beneficiary,
or that is performed primarily for psychological purposes, or that
restores form, but does not correct or improve materially a bodily
function.
Cost-share. The amount of money for which the beneficiary (or
sponsor) is responsible in connection with otherwise covered inpatient
and outpatient services (other than the annual fiscal year deductible or
disallowed amounts) as set forth in Sec. Sec. 199.4(f) and 199.5(b) of
this part. Cost-sharing may also be referred to as ``co-payment.''
Custodial care. Care rendered to a patient:
(i) who is disabled mentally or physically and such disability is
expected to continue and be prolonged, and
(ii) who requires a protected, monitored, or controlled environment
whether in an institution or in the home, and
(iii) who requires assistance to support the essentials of daily
living, and
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(iv) who is not under active and specific medical, surgical, or
psychiatric treatment that will reduce the disability to the extent
necessary to enable the patient to function outside the protected,
monitored, or controlled environment.
A custodial care determination is not precluded by the fact that a
patient is under the care of a supervising or attending physician and
that services are being ordered and prescribed to support and generally
maintain the patient's condition, or provide for the patient's comfort,
or ensure the manageability of the patient. Further, a custodial care
determination is not precluded because the ordered and prescribed
services and supplies are being provided by an R.N., L.P.N., or L.V.N.
Note: The determination of custodial care in no way implies that the
care being rendered is not required by the patient; it only means that
it is the kind of care that is not covered under CHAMPUS. A program of
physical and mental rehabilitation which is designed to reduce a
disability is not custodial care as long as the objective of the program
is a reduced level of care.
Days. Calendar days.
Deceased member. A person who, at the time of his or her death, was
an active duty member of a Uniformed Service under a call or order that
did not specify a period of 30 days or less.
Deceased reservist. A reservist in a Uniformed Service who incurs or
aggravates an injury, illness, or disease, during, or on the way to or
from, active duty training for a period of 30 days or less or inactive
duty training and dies as a result of that specific injury, illness or
disease.
Deceased retiree. A person who, at the time of his or her death, was
entitled to retired or retainer pay or equivalent pay based on duty in a
Uniformed Service. For purposes of this part, it also includes a person
who died before attaining age 60 and at the time of his or her death
would have been eligible for retired pay as a reservist but for the fact
that he or she was not 60 years of age, and had elected to participate
in the Survivor Benefit Plan established under 10 U.S.C. chapter 73.
Deductible. Payment by a beneficiary of the first $50 of the
CHAMPUS-determined allowable costs or charges for otherwise covered
outpatient services or supplies provided in any one fiscal year; or for
a family, the aggregate payment by two or more beneficiaries who submit
claims of the first $100.
Deductible certificate. A statement issued to the beneficiary (or
sponsor) by a CHAMPUS fiscal intermediary certifying to deductible
amounts satisfied by a CHAMPUS beneficiary for any applicable fiscal
year.
Defense Enrollment Eligibility Reporting System (DEERS). An
automated system maintained by the Department of Defense for the purpose
of:
(1) Enrolling members, former members and their dependents, and
(2) Verifying members', former members' and their dependents'
eligibility for health care benefits in the direct care facilities and
for CHAMPUS.
Dental care. Services relating to the teeth and their supporting
structures.
Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate
authority.
Dependent. Individuals whose relationship to the sponsor (including
NATO members who are stationed in or passing through the United States
on official business when authorized) leads to entitlement to benefits
under this part. (See Sec. 199.3 of this part for specific categories
of dependents).
Deserter or desertion status. A service member is a deserter, or in
a desertion status, when the Uniformed Service concerned has made an
administrative determination to that effect, or the member's period of
unauthorized absence has resulted in a court-martial conviction of
desertion. Administrative declarations of desertion normally are made
when a member has been an unauthorized absentee for over 30 days, but
particular circumstances may result in an earlier declaration.
Entitlement to CHAMPUS benefits ceases as of 12:01 a.m. on the day
following the day the desertion status is declared. Benefits are not to
be authorized for treatment received during a period of unauthorized
absence that results in a court-martial conviction for desertion.
Dependent eligibility for benefits is reestablished when a deserter is
returned to military control and continues, even though the member may
be in confinement, until any discharge is executed.
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When a deserter status is later found to have been determined
erroneously, the status of deserter is considered never to have existed,
and the member's dependents will have been eligible continuously for
benefits under CHAMPUS.
Diagnosis-Related Groups (DRGs). Diagnosis-related groups (DRGs) are
a method of dividing hospital patients into clinically coherent groups
based on the consumption of resources. Patients are assigned to the
groups based on their principal diagnosis (the reason for admission,
determined after study), secondary diagnoses, procedures performed, and
the patient's age, sex, and discharge status.
Diagnostic admission. An admission to a hospital or other authorized
institutional provider, or an extension of a stay in such a facility,
primarily for the purpose of performing diagnostic tests, examinations,
and procedures.
Director. The Director of the TRICARE Management Activity or
Director, Office of CHAMPUS. Any references to the Director, Office of
CHAMPUS, or OCHAMPUS, shall mean the Director, TRICARE Management
Activity. Any reference to Director shall also include any person
designated by the Director to carry out a particular authority. In
addition, any authority of the Director may be exercised by the
Assistant Secretary of Defense (Health Affairs).
Director, OCHAMPUS. An authority of the Director, OCHAMPUS includes
any person designated by the Director, OCHAMPUS to exercise the
authority involved.
Director, TRICARE Management Activity. This term includes the
Director, TRICARE Management Activity, the official sometimes referred
to in this part as the Director, Office of CHAMPUS (or OCHAMPUS), or any
designee of the Director, TRICARE Management Activity or the Assistant
Secretary of Defense for Health Affairs who is designated for purposes
of an action under this part.
Doctor of Dental Medicine (D.M.D.). A person who has received a
degree in dentistry, that is, that department of the healing arts which
is concerned with the teeth, oral cavity, and associated structures.
Doctor of Medicine (M.D.). A person who has graduated from a college
of allopathic medicine and who is entitled legally to use the
designation M.D.
Doctor of Osteopathy (D.O.). A practitioner of osteopathy, that is,
a system of therapy based on the theory that the body is capable of
making its own remedies against disease and other toxic conditions when
it is in normal structural relationship and has favorable environmental
conditions and adequate nutrition. It utilizes generally accepted
physical, medicinal, and surgical methods of diagnosis and therapy,
while placing chief emphasis on the importance of normal body mechanics
and manipulative methods of detecting and correcting faulty structure.
Domiciliary care. Inpatient institutional care provided the
beneficiary not because it is medically necessary, but because the care
in the home setting is not available, is unsuitable, or members of the
patient's family are unwilling to provide the care. Institutionalization
because of abandonment constitutes domiciliary care.
Note: The terms ``domiciliary'' and ``custodial care'' represent
separate concepts and are not interchangeable. Domiciliary care is not
covered under either the CHAMPUS Basic Program or the Program for
Persons with Disabilities (PFPWD).
Donor. An individual who supplies living tissue or material to be
used in another body, such as a person who furnishes a kidney for renal
transplant.
Double coverage. When a CHAMPUS beneficiary also is enrolled in
another insurance, medical service, or health plan that duplicates all
or part of a beneficiary's CHAMPUS benefits.
Double coverage plan. The specific insurance, medical service, or
health plan under which a CHAMPUS beneficiary has entitlement to medical
beneifts that duplicate CHAMPUS benefits in whole or in part. Double
coverage plans do not include:
(i) Medicaid.
(ii) Coverage specifically designed to supplement CHAMPUS benefits.
(iii) Entitlement to receive care from the Uniformed Services
medical facilities;
(iv) Entitlement to receive care from Veterans Administration
medical care facilities; or
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(v) Part C of the Individuals with Disabilities Education Act for
services and items provided in accordance with Part C of the IDEA that
are medically or psychologically necessary in accordance with the
Individualized Family Service Plan and that are otherwise allowable
under the CHAMPUS Basic Program or the Program for Persons with
Disabilities.
Dual Compensation. Federal Law (5 U.S.C. 5536) prohibits active duty
members or civilian employees of the United States Government from
receiving additional compensation from the government above their normal
pay and allowances. This prohibition applies to CHAMPUS cost-sharing of
medical care provided by active duty members or civilian government
employees to CHAMPUS beneficiaries.
Durable equipment. A device or apparatus which does not qualify as
Durable Medical Equipment (as defined in this section), and which is
essential to the efficient arrest or reduction of functional loss
resulting from a qualifying condition as provided by Sec. 199.5.
Durable medical equipment. Equipment for which the allowable charge
is over $100 and which:
(1) Is medically necessary for the treatment of a covered illness or
injury;
(2) Improves the function of a malformed, diseased, or injured body
part, or retards further deterioration of a patient's physical
condition;
(3) Is primarily and customarily designed and intended to serve a
medical purpose rather than primarily for transportation, comfort, or
convenience;
(4) Can withstand repeated use;
(5) Provides the medically appropriate level of performance and
quality for the medical condition present (that is, nonluxury and
nondeluxe);
(6) Is other than spectacles, eyeglasses, contact lenses, or other
optical devices; hearing aids; or other communication devices; and
(7) Is other than exercise equipment, spas, whirlpools, hot tubs,
swimming pools or other such items.
Economic interest. (1) Any right, title, or share in the income,
remuneration, payment, or profit of a CHAMPUS-authorized provider, or of
an individual or entity eligible to be a CHAMPUS-authorized provider,
resulting, directly or indirectly, from a referral relationship; or any
direct or indirect ownership, right, title, or share, including a
mortgage, deed of trust, note, or other obligation secured (in whole or
in part) by one entity for another entity in a referral or accreditation
relationship, which is equal to or exceeds 5 percent of the total
property and assets of the other entity.
(2) A referral relationship exists when a CHAMPUS beneficiary is
sent, directed, assigned or influenced to use a specific CHAMPUS-
authorized provider, or a specific individual or entity eligible to be a
CHAMPUS-authorized provider.
(3) An accreditation relationship exists when a CHAMPUS-authorized
accreditation organization evaluates for accreditation an entity that is
an applicant for, or recipient of CHAMPUS-authorized provider status.
Emergency inpatient admission. An unscheduled, unexpected, medically
necessary admission to a hospital or other authorized institutional
provider for treatment of a medical condition meeting the definition of
medical emergency and which is determined to require immediate inpatient
treatment by the attending physician.
Entity. For purposes of Sec. 199.9(f)(1), ``entity'' includes a
corporation, trust, partnership, sole proprietorship or other kind of
business enterprise that is or may be eligible to receive reimbursement
either directly or indirectly from CHAMPUS.
Essentials of daily living. Care that consists of providing food
(including special diets), clothing, and shelter; personal hygiene
services; observation and general monitoring; bowel training or
management; safety precautions; general preventive procedures (such as
turning to prevent bedsores); passive exercise; companionship;
recreation; transportation; and such other elements of personal care
that reasonably can be performed by an untrained adult with minimal
instruction or supervision.
External Partnership Agreement. The External Partnership Agreement
is an agreement between a military treatment facility commander and a
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CHAMPUS authorized institutional provider, enabling Uniformed Services
health care personnel to provide otherwise covered medical care to
CHAMPUS beneficiaries in a civilian facility under the Military-Civilian
Health Services Partnership Program. Authorized costs associated with
the use of the facility will be financed through CHAMPUS under normal
cost-sharing and reimbursement procedures currently applicable under the
basic CHAMPUS.
External Resource Sharing Agreement. A type External Partnership
Agreement, established in the context of the TRICARE program by
agreement of a military medical treatment facility commander and an
authorized TRICARE contractor. External Resource Sharing Agreements may
incorporate TRICARE features in lieu of standard CHAMPUS features that
would apply to standard External Partnership Agreements.
Extramedical individual providers of care. Individuals who do
counseling or nonmedical therapy and whose training and therapeutic
concepts are outside the medical field, as specified in Sec. 199.6 of
this part.
Extraordinary condition. A complex clinical condition, which
resulted, or is expected to result, in extraordinary TRICARE/CHAMPUS
costs or utilization, based on thresholds established by the Director,
OCHAMPUS, or designee.
Former member. A retiree, deceased member, deceased retiree, or
deceased reservist in certain circumstances (see section 199.3 for
additional information related to certain deceased reservists'
dependents' eligibility). Under conditions specified under Sec. 199.3
of this part, former member may also include a member of the Uniformed
Services who has been discharged from active duty (or, in some cases,
full-time National Guard duty), whether voluntarily or involuntarily,
under other than adverse conditions and qualifies for CHAMPUS benefits
under the Transitional Assistance Management Program or the Continued
Health Care Benefit Program.
Former spouse. A former husband or wife of a Uniformed Service
member or former mmeber who meets the criteria as set forth in Sec.
199.3(b)(2)(ii) of this part.
Fraud. For purposes of this part, fraud is defined as (1) a
deception or misrepresentation by a provider, beneficiary, sponsor, or
any person acting on behalf of a provider, sponsor, or beneficiary with
the knowledge (or who had reason to know or should have known) that the
deception or misrepresentation could result in some unauthorized CHAMPUS
benefit to self or some other person, or some unauthorized CHAMPUS
payment, or (2) a claim that is false or fictitious, or includes or is
supported by any written statement which asserts a material fact which
is false or fictitious, or includes or is supported by any written
statement that (a) omits a material fact and (b) is false or fictitious
as a result of such omission and (c) is a statement in which the person
making, presenting, or submitting such statement has a duty to include
such material fact. It is presumed that, if a deception or
misrepresentation is established and a CHAMPUS claim is filed, the
person responsible for the claim had the requisite knowledge. This
presumption is rebuttable only by substantial evidence. It is further
presumed that the provider of the services is responsible for the
actions of all individuals who file a claim on behalf of the provider
(for example, billing clerks); this presumption may only be rebutted by
clear and convincing evidence.
Freestanding. Not ``institution-affiliated'' or ``institution-
based.''
Full-time course of higher education. A complete, progressive series
of studies to develop attributes such as knowledge, skill, mind, and
character, by formal schooling at a college or university, and which
meets the criteria set out in Sec. 199.3 of this part. To qualify as
full-time, the student must be carrying a course load of a minimum of 12
credit hours or equivalent each semester.
General staff nursing service. All nursing care (other than that
provided by private duty nurses) including, but not limited to, general
duty nursing, emergency room nursing, recovery room nursing, intensive
nursing care, and group nursing arrangements performed by nursing
personnel on the payroll of
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the hospital or other authorized institution.
Good faith payments. Those payments made to civilian sources of
medical care who provided medical care to persons purporting to be
eligible beneficiaries but who are determined later to be ineligible for
CHAMPUS benefits. (The ineligible person usually possesses an erroneous
or illegal identification card.) To be considered for good faith
payments, the civilian source of care must have exercised reasonable
precautions in identifying a person claiming to be an eligible
beneficiary.
Habilitation. The provision of functional capacity, absent from
birth due to congenital anomaly or developmental disorder, which
facilitates performance of an activity in the manner, or within the
range considered normal, for a human being.
Handicap. For the purposes of this part, the term ``handicap'' is
synonymous with the term ``disability.''
High-risk pregnancy. A pregnancy is high-risk when the presence of a
currently active or previously treated medical, anatomical,
physiological illness or condition may create or increase the likelihood
of a detrimental effect on the mother, fetus, or newborn and presents a
reasonable possibility of the development of complications during labor
or delivery.
Hospice care. Hospice care is a program which provides an integrated
set of services and supplies designed to care for the terminally ill.
This type of care emphasizes palliative care and supportive services,
such as pain control and home care, rather than cure-oriented services
provided in institutions that are otherwise the primary focus under
CHAMPUS. The benefit provides coverage for a humane and sensible
approach to care during the last days of life for some terminally ill
patients.
Hospital, acute care (general and special). An institution that
meets the criteria as set forth in Sec. 199.6(b)(4)(i) of this part.
Hospital, long-term (tuberculosis, chronic care, or rehabilitation).
An institution that meets the criteria as set forth in Sec.
199.6(b)(4)(iii) of this part.
Hospital, phychiatric. An institution that meets the criteria as set
forth in Sec. 199.6(b)(4)(ii) of this part.
Illegitimate child. A child not recognized as a lawful offspring;
that is, a child born of parents not married to each other.
Immediate family. The spouse, natural parent, child and sibling, a
dopted child and adoptive parent, stepparent, stepchild, grandparent,
grandchild, stepbrother and stepsister, father-in-law, mother-in-law of
the beneficiary, or provider, as appropriate. For purposes of this
definition only, to determine who may render services to a beneficiary,
the step-relationship continues to exist even if the marriage upon which
the relationship is based terminates through divorce or death of one of
the parents.
Independent laboratory. A freestanding laboratory approved for
participation under Medicare and certified by the Health Care Financing
Administration.
Infirmaries. Facilities operated by student health departments of
colleges and universities to provide inpatient or outpatient care to
enrolled students. When specifically approved by the Director, OCHAMPUS,
or a designee, a boarding school infirmary also is included.
Initial determination. A formal written decision on a CHAMPUS claim,
a request for benefit authorization, a request by a provider for
approval as an authorized CHAMPUS provider, or a decision disqualifying
or excluding a provider as an authorized provider under CHAMPUS.
Rejection of a claim or a request for benefit or provider authorization
for failure to comply with administrative requirements, including
failure to submit reasonably requested information, is not an initial
determination. Responses to general or specific inquiries regarding
CHAMPUS benefits are not initial determinations.
In-out surgery. Surgery performed in the outpatient department of a
hospital or other institutional provider, in a physician's office or the
office of another individual professional provider, in a clinic, or in a
``freestanding'' ambulatory surgical center which does not involve a
formal inpatient admission for a period of 24 hours or more.
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Inpatient. A patient who has been admitted to a hospital or other
authorized institution for bed occupancy for purposes of receiving
necessary medical care, with the reasonable expectation that the patient
will remain in the institution at least 24 hours, and with the
registration and assignment of an inpatient number or designation.
Institutional care in connection with in and out (ambulatory) surgery is
not included within the meaning of inpatient whether or not an inpatient
number or designation is made by the hospital or other institution. If
the patient has been received at the hospital, but death occurs before
the actual admission occurs, an inpatient admission exists as if the
patient had lived and had been formally admitted.
Institution-affiliated. Related to a CHAMPUS-authorized
institutional provider through a shared governing body but operating
under a separate and distinct license or accreditation.
Institution-based. Related to a CHAMPUS-authorized institutional
provider through a shared governing body and operating under a common
license and shared accreditation.
Institutional provider. A health care provider which meets the
applicable requirements established by Sec. 199.6(b) of this part.
Intensive care unit (ICU). A special segregated unit of a hospital
in which patients are concentrated by reason of serious illness, usually
without regard to diagnosis. Special lifesaving techniques and equipment
regularly and immediately are available within the unit, and patients
are under continuous observation by a nursing staff specially trained
and selected for the care of this type patient. The unit is maintained
on a continuing rather than an intermittent or temporary basis. It is
not a postoperative recovery room nor a postanesthesia room. In some
large or highly specialized hospitals, the ICUs may be further refined
for special purposes, such as for respiratory conditions, cardiac
surgery, coronary care, burn care, or neurosurgery. For the purposes of
CHAMPUS, these specialized units would be considered ICUs if they
otherwise conformed to the definition of an ICU.
Intern. A graduate of a medical or dental school serving in a
hospital in preparation to being licensed to practice medicine or
dentistry.
Internal Partnership Agreement. The Internal Partnership Agreement
is an agreement between a military treatment facility commander and a
CHAMPUS-authorized civilian health care provider which enables the use
of civilian health care personnel or other resources to provide medical
care to CHAMPUS beneficiaries on the premises of a military treatment
facility under the Military-Civilian Health Services Partnership
Program. These internal agreements may be established when a military
treatment facility is unable to provide sufficient health care services
for CHAMPUS beneficiaries due to shortages of personnel and other
required resources.
Internal Resource Sharing Agreement. A type of Internal Partnership
Agreement, established in the context of the TRICARE program by
agreement of a military medical treatment facility commander and
authorized TRICARE contractor. Internal Resource Sharing Agreements may
incorporate TRICARE features in lieu of standard CHAMPUS features that
would apply to standard Internal Partnership Agreements.
Item, Service, or Supply. Includes (1) any item, device, medical
supply, or service claimed to have been provided to a beneficiary
(patient) and listed in an itemized claim for CHAMPUS payment or a
request for payment, or (2) in the case of a claim based on costs, any
entry or omission in a cost report, books of account, or other documents
supporting the claim.
Laboratory and pathological services. Laboratory and pathological
examinations (including machine diagnostic tests that produce hard-copy
results) when necessary to, and rendered in connection with medical,
obstetrical, or surgical diagnosis or treatment of an illness or injury,
or in connection with well-baby care.
Legitimized child. A formerly illegitimate child who is considered
legitimate by reason of qualifying actions recognized in law.
Licensed practical nurse (L.P.N.). A person who is prepared
specially in the scientific basis of nursing; who is a
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graduate of a school of practical nursing; whose qualifications have
been examined by a state board of nursing; and who has been authorized
legally to practice as an L.P.N. under the supervision of a physician.
Licensed vocational nurse (L.V.N.) A person who specifically is
prepared in the scientific basis or nursing; who is a graduate of a
school of vocational nursing; whose qualifications have been examined by
a state board of nursing; and who has been authorized legally to
practice as a L.V.N. under the supervision of a physician.
Long-term hospital care. Any inpatient hospital stay that exceeds 30
days.
Low-risk pregnancy. A pregnancy is low-risk when the basis for the
ongoing clinical expectation of a normal uncomplicated birth, as defined
by reasonable and generally accepted criteria of maternal and fetal
health, is documented throughout a generally accepted course of prenatal
care.
Major life activity. Breathing, cognition, hearing, seeing, and age
appropriate ability essential to bathing, dressing, eating, grooming,
speaking, stair use, toilet use, transferring, and walking.
Marriage and family therapist, certified. An extramedical individual
provider who meets the requirements outlined in Sec. 199.6.
Maternity care. Care and treatment related to conception, delivery,
and abortion, including prenatal and postnatal care (generally through
the 6th post-delivery week), and also including treatment of the
complications of pregnancy.
Medicaid. Those medical benefits authorized under Title XIX of the
Social Security Act provided to welfare recipients and the medically
indigent through programs administered by the various states.
Medical. The generally used term which pertains to the diagnosis and
treatment of illness, injury, pregnancy, and mental disorders by trained
and licensed or certified health professionals. For purposes of CHAMPUS,
the term ``medical'' should be understood to include ``medical,
psychological, surgical, and obstetrical,'' unless it is specifically
stated that a more restrictive meaning is intended.
Medical emergency. The sudden and unexpected onset of a medical
condition or the acute exacerbation of a chronic condition that is
threatening to life, limb, or sight, and requires immediate medical
treatment or which manifests painful symptomatology requiring immediate
palliative efforts to alleviate suffering. Medical emergencies include
heart attacks, cardiovascular accidents, poisoning, convulsions, kidney
stones, and such other acute medical conditions as may be determined to
be medical emergencies by the Director, OCHAMPUS, or a designee. In the
case of a pregnancy, a medical emergency must involve a sudden and
unexpected medical complication that puts the mother, the baby, or both,
at risk. Pain would not, however, qualify a maternity case as an
emergency, nor would incipient birth after the 34th week of gestation,
unless an otherwise qualifying medical condition is present. Examples of
medical emergencies related to pregnancy or delivery are hemorrhage,
ruptured membrane with prolapsed cord, placenta previa, abruptio
placenta, presence of shock or unconsciousness, suspected heart attack
or stroke, or trauma (such as injuries received in an automobile
accident).
Medical supplies and dressings (consumables). Necessary medical or
surgical supplies (exclusive of durable medical equipment) that do not
withstand prolonged, repeated use and that are needed for the proper
medical management of a condition for which benefits are otherwise
authorized under CHAMPUS, on either an inpatient or outpatient basis.
Examples include disposable syringes for a diabetic, colostomy sets,
irrigation sets, and ace bandages.
Medically or psychologically necessary. The frequency, extent, and
types of medical services or supplies which represent appropriate
medical care and that are generally accepted by qualified professionals
to be reasonable and adequate for the diagnosis and treatment of
illness, injury, pregnancy, and mental disorders or that are reasonable
and adequate for well-baby care.
Medicare. These medical benefits authorized under Title XVIII of the
Social Security Act provided to persons
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65 or older, certain disabled persons, or persons with chronic renal
disease, through a national program administered by the DHHS, Health
Care Financing Administration, Medicare Bureau.
Member. A person on active duty in a Uniformed Service under a call
or order that does not specify a period of 30 days or less. (For CHAMPUS
cost-sharing purposes only, a former member who received a dishonorable
or bad-conduct discharge or was dismissed from a Uniformed Service as a
result of a court-martial conviction for an offense involving physical
or emotional abuse or was administratively discharged as a result of
such an offense is considered a member).
Mental disorder. For purposes of the payment of CHAMPUS benefits, a
mental disorder is a nervous or mental condition that involves a
clinically significant behavioral or psychological syndrome or pattern
that is associated with a painful symptom, such as distress, and that
impairs a patient's ability to function in one or more major life
activities. Additionally, the mental disorder must be one of those
conditions listed in the DSM-III.
Mental health counselor. An extramedical individual provider who
meets the requirements outlined in Sec. 199.6.
Mental health therapeutic absence. A therapeutically planned absence
from the inpatient setting. The patient is not discharged from the
facility and may be away for periods of several hours to several days.
The purpose of the therapeutic absence is to give the patient an
opportunity to test his or her ability to function outside the inpatient
setting before the actual discharge.
Missing in action (MIA). A battle casualty whose whereabouts and
status are unknown, provided the absence appears to be involuntary and
the service member is not known to be in a status of unauthorized
absence.
Note: Claims for eligible CHAMPUS beneficiaries whose sponsor is
classified as MIA are processed as dependents of an active duty service
member.
Morbid obesity. The body weight is 100 pounds over ideal weight for
height and bone structure, according to the most current Metropolitan
Life Table, and such weight is in association with severe medical
conditions known to have higher mortality rates in association with
morbid obesity; or, the body weight is 200 percent or more of the ideal
weight for height and bone structure according to the most current
Metropolitan Life Table. The associated medical conditions are diabetes
mellitus, hypertension, cholecystitis, narcolepsy, pickwickian syndrome
(and other severe respiratory diseases), hypothalmic disorders, and
severe arthritis of the weight-bearing joints.
Most-favored rate. The lowest usual charge to any individual or
third-party payer in effect on the date of the admission of a CHAMPUS
beneficiary.
Natural childbirth. Childbirth without the use of chemical induction
or augmentation of labor or surgical procedures other than episiotomy or
perineal repair.
Naturopath. A person who practices naturopathy, that is, a drugless
system of therapy making use of physical forces such as air, light,
water, heat, and massage.
Note: Services of a naturopath are not covered by CHAMPUS.
NAVCARE clinics. Contractor owned, staffed, and operated primary
clinics exclusively serving uniformed services beneficiaries pursuant to
contracts awarded by a Military Department.
Nonavailability statement. A certification by a commander (or a
designee) of a Uniformed Services medical treatment facility, recorded
on DEERS, generally for the reason that the needed medical care being
requested by a non-TRICARE Prime enrolled beneficiary cannot be provided
at the facility concerned because the necessary resources are not
available in the time frame needed.
Nonparticipating provider. A hospital or other authorized
institutional provider, a physician or other authorized individual
professional provider, or other authorized provider that furnished
medical services or supplies to a CHAMPUS beneficiary, but who did not
agree on the CHAMPUS claim form to participate or to accept the CHAMPUS-
determined allowable cost or charge as the total charge for the
services. A nonparticipating provider looks to the beneficiary or
sponsor for
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payment of his or her charge, not CHAMPUS. In such cases, CHAMPUS pays
the beneficiary or sponsor, not the provider.
North Atlantic Treaty Organization (NATO) member. A military member
of an armed force of a foreign NATO nation who is on active duty and
who, in connection with official duties, is stationed in or passing
through the United States. The foreign NATO nations are Belgium, Canada,
Denmark, France, Federal Republic of Germany, Greece, Iceland, Italy,
Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, and the
United Kingdom.
Not-for-profit entity. An organization or institution owned and
operated by one or more nonprofit corporations or associations formed
pursuant to applicable state laws, no part of the net earnings of which
inures, or may lawfully inure, to the benefit of any private shareholder
or individual.
Occupational therapist. A person who is trained specially in the
skills and techniques of occupational therapy (that is, the use of
purposeful activity with individuals who are limited by physical injury
of illness, psychosocial dysfunction, developmental or learning
disabilities, poverty and cultural differences, or the aging process in
order to maximize independence, prevent disability, and maintain health)
and who is licensed to administer occupational therapy treatments
prescribed by a physician.
Official formularies. A book of official standards for certain
pharmaceuticals and preparations that are not included in the U.S.
Pharmacopeia.
Optometrist (Doctor of Optometry). A person trained and licensed to
examine and test the eyes and to treat visual defects by prescribing and
adapting corrective lenses and other optical aids, and by establishing
programs of exercises.
Oral surgeon (D.D.S. or D.M.D.). A person who has received a degree
in dentistry and who limits his or her practice to oral surgery, that
is, that branch of the healing arts that deals with the diagnosis and
the surgical correction and adjunctive treatment of diseases, injuries,
and defects of the mouth, the jaws, and associated structures.
Orthopedic shoes. Shoes prescribed by an orthopedic surgeon to
effect changes in foot or feet position and alignment and which are not
an integral part of a brace.
Other allied health professionals. Individual professional providers
other than physicians, dentists, or extramedical individual providers,
as specified in Sec. 199.6 of this part.
Other special institutional providers. Certain specialized medical
treatment facilities, either inpatient or outpatient, other than those
specifically defined, that provide courses of treatment prescribed by a
doctor of medicine or osteopathy; when the patient is under the
supervision of a doctor of medicine or osteopathy during the entire
course of the inpatient admission or the outpatient treatment; when the
type and level of care and services rendered by the institution are
otherwise authorized in this Regulation; when the facility meets all
licensing or other certification requirements that are extant in the
jurisdiction in which the facility is located geographically; which is
accredited by the Joint Commission on Accreditation if an appropriate
accreditation program for the given type of facility is available; and
which is not a nursing home, intermediate facility, halfway house, home
for the aged, or other institution of similar purpose.
Outpatient. A patient who has not been admitted to a hospital or
other authorized institution as an inpatient.
Ownership or control interest. For purposes of Sec. 199.9(f)(1), a
``person with an ownership or control interest'' is anyone who
(1) Has directly or indirectly a 5 percent or more ownership
interest in the entity; or
(2) Is the owner of a whole or part interest in any mortgage, deed
of trust, note, or other obligation secured (in whole or in part) by the
entity or any of the property or assets thereof, which whole or part
interest is equal to or exceeds 5 percent of the total property and
assets of the entity; or
(3) Is an officer or director of the entity if the entity is
organized as a corporation; or
(4) Is a partner in the entity if the entity is organized as a
partnership.
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Partial hospitalization. A treatment setting capable of providing an
interdisciplinary program of medical therapeutic services at least 3
hours per day, 5 days per week, which may embrace day, evening, night
and weekend treatment programs which employ an integrated, comprehensive
and complementary schedule of recognized treatment approaches. Partial
hospitalization is a time-limited, ambulatory, active treatment program
that offers therapeutically intensive, coordinated, and structured
clinical services within a stable therapeutic environment. Partial
hospitalization is an appropriate setting for crisis stabilization,
treatment of partially stabilized mental health disorders, and a
transition from an inpatient program when medically necessary. Such
programs must enter into a participation agreement with CHAMPUS, and be
accredited and in substantial compliance with the standards of the
Mental Health Manual of the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) (formerly known as the Consolidated
Standards).
Participating provider. A CHAMPUS-authorized provider that is
required, or has agreed by entering into a CHAMPUS participation
agreement or by act of indicating ``accept assignment'' on the claim
form, to accept the CHAMPUS-allowable amount as the maximum total charge
for a service or item rendered to a CHAMPUS beneficiary, whether the
amount is paid for fully by CHAMPUS or requires cost-sharing by the
CHAMPUS beneficiary.
Party to a hearing. An appealing party or parties and CHAMPUS.
Party to the initial determination. Includes CHAMPUS and also refers
to a CHAMPUS beneficiary and a participating provider of services whose
interests have been adjudicated by the initial determination. In
addition, a provider who has been denied approval as an authorized
CHAMPUS provider is a party to that initial determination, as is a
provider who is disqualified or excluded as an authorized provider under
CHAMPUS, unless the provider is excluded based on a determination of
abuse or fraudulent practices or procedures under another federal or
federally funded program. See Sec. 199.10 for additional information
concerning parties not entitled to administrative review under the
CHAMPUS appeals and hearing procedures.
Pastoral counselor. An extramedical individual provider who meets
the requirements outlined in Sec. 199.6.
Pharmacist. A person who is trained specially in the scientific
basis of pharmacology and who is licensed to prepare and sell or
dispense drugs and compounds and to make up prescriptions ordered by a
physician.
Physical medicine services or physiatry services. The treatment of
disease or injury by physical means such as massage, hydrotherapy, or
heat.
Physical therapist. A person who is trained specially in the skills
and techniques of physical therapy (that is, the treatment of disease by
physical agents and methods such as heat, massage, manipulation,
therapeutic exercise, hydrotherapy, and various forms of energy such as
electrotherapy and ultrasound), who has been authorized legally (that
is, registered) to administer treatments prescribed by a physician and
who is entitled legally to use the designation ``Registered Physical
Therapist.'' A physical therapist also may be called a physiotherapist.
Physician. A person with a degree of Doctor of Medicine (M.D.) or
Doctor of Osteopathy (D.O.) who is licensed to practice medicine by an
appropriate authority.
Physician in training. Interns, residents, and fellows participating
in approved postgraduate training programs and physicians who are not in
approved programs but who are authorized to practice only in a hospital
or other institutional provider setting, e.g., individuals with
temporary or restricted licenses, or unlicensed graduates of foreign
medical schools.
Podiatrist (Doctor of Podiatry or Surgical Chiropody). A person who
has received a degree in podiatry (formerly called chiropody), that is,
that specialized field of the healing arts that deals with the study and
care of the foot, including its anatomy, pathology, and medical and
surgical treatment.
Preauthorization. A decision issued in writing by the Director,
OCHAMPUS, or a designee, that CHAMPUS benefits
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are payable for certain services that a beneficiary has not yet
received.
Prescription drugs and medicines. Drugs and medicines which at the
time of use were approved for commercial marketing by the U.S. Food and
Drug Administration, and which, by law of the United States, require a
physician's or dentist's prescription, except that it includes insulin
for known diabetics whether or not a prescription is required. Drugs
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be
covered under CHAMPUS as if FDA approved.
Note: The fact that the U.S. Food and Drug Administration has
approved a drug for testing on humans would not qualify it within this
definition.
Preventive care. Diagnostic and other medical procedures not related
directly to a specific illness, injury, or definitive set of symptoms,
or obstetrical care, but rather performed as periodic health screening,
health assessment, or health maintenance.
Primary caregiver. An individual who renders to a beneficiary
services to support the essentials of daily living (as defined in Sec.
199.2) and specific services essential to the safe management of the
beneficiary's condition.
Primary payer. The plan or program whose medical benefits are
payable first in a double coverage situation.
PRIMUS clinics. Contractor owned, staffed, and operated primary care
clinics exclusively serving uniformed services beneficiaries pursuant to
contracts awarded by a Military Department.
Private duty (special) nursing services. Skilled nursing services
rendered to an individual patient requiring intensive medical care. Such
private duty (special) nursing must be by an actively practicing
registered nurse (R.N.) or licensed practical or vocational nurse
(L.P.N. or L.V.N.) only when the medical condition of the patient
requires intensive skilled nursing services (rather than primarily
providing the essentials of daily living) and when such skilled nursing
care is ordered by the attending physician.
Private room. A room with one bed that is designated as a private
room by the hospital or other authorized institutional provider.
Program for Persons with Disabilities PFPWD). The CHAMPUS benefits
described in Sec. 199.5.
Progress notes. Progress notes are an essential component of the
medical record wherein health care personnel provide written evidence of
ordered and supervised diagnostic tests, treatments, medical procedures,
therapeutic behavior and outcomes. In the case of mental health care,
progress notes must include: the date of the therapy session; length of
the therapy session; a notation of the patient's signs and symptoms; the
issues, pathology and specific behaviors addressed in the therapy
session; a statement summarizing the therapeutic interventions attempted
during the therapy session; descriptions of the response to treatment,
the outcome of the treatment, and the response to significant others;
and a statement summarizing the patient's degree of progress toward the
treatment goals. Progress notes do not need to repeat all that was said
during a therapy session but must document a patient contact and be
sufficiently detailed to allow for both peer review and audits to
substantiate the quality and quantity of care rendered.
Prosthetic device (prosthesis). An artificial substitute for a
missing body part.
Provider. A hospital or other institutional provider, a physician,
or other individual professional provider, or other provider of services
or supplies as specified in Sec. 199.6 of this part.
Provider exclusion and suspension. The terms ``exclusion'' and
``suspension'', when referring to a provider under CHAMPUS, both mean
the denial of status as an authorized provider, resulting in items,
services, or supplies furnished by the provider not being reimbursed,
directly or indirectly, under CHAMPUS. The terms may be used
interchangeably to refer to a provider who has been denied status as an
authorized CHAMPUS provider based on (1) a criminal conviction or civil
judgment involving fraud, (2) an administrative finding of fraud or
abuse under CHAMPUS, (3) an administrative finding that the provider has
been excluded or suspended by another agency of the Federal Government,
a state, or a local licensing authority, (4) an administrative finding
that the provider has
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knowingly participated in a conflict of interest situation, or (5) an
administrative finding that it is in the best interests of the CHAMPUS
or CHAMPUS beneficiaries to exclude or suspend the provider.
Provider termination. When a provider's status as an authorized
CHAMPUS provider is ended, other than through exclusion or suspension,
based on a finding that the provider does not meet the qualifications,
as set forth in Sec. 199.6 of this part, to be an authorized CHAMPUS
provider.
Psychiatric emergency. A psychiatric inpatient admission is an
emergency when, based on a psychiatric evaluation performed by a
physician (or other qualified mental health care professional with
hospital admission authority), the patient is at immediate risk of
serious harm to self or others as a result of a mental disorder and
requires immediate continuous skilled observation at the acute level of
care.
Public facility. A public authority or entity legally constituted
within a State (as defined in this section) to administer, control or
perform a service function for public health, education or human
services programs in a city, county, or township, special district, or
other political subdivision, or such combination of political
subdivisions or special districts or counties as are recognized as an
administrative agency for a State's public health, education or human
services programs, or any other public institution or agency having
administrative control and direction of a publicly funded health,
education or human services program.
Public facility adequacy. An available public facility shall be
considered adequate when the Director, OCHAMPUS, or designee, determines
that the quality, quantity, and frequency of an available service or
item otherwise allowable as a CHAMPUS benefit is sufficient to meet the
beneficiary's specific disability related need in a timely manner.
Public facility availability. A public facility shall be considered
available when the public facility usually and customarily provides the
requested service or item to individuals with the same or similar
disability related need as the otherwise equally qualified CHAMPUS
beneficiary.
Qualified accreditation organization. A not-for-profit corporation
or a foundation that:
(1) Develops process standards and outcome standards for health care
delivery programs, or knowledge standards and skill standards for health
care professional certification testing, using experts both from within
and outside of the health care program area or individual specialty to
which the standards are to be applied;
(2) Creates measurable criteria that demonstrate compliance with
each standard;
(3) Publishes the organization's standards, criteria and evaluation
processes so that they are available to the general public;
(4) Performs on-site evaluations of health care delivery programs,
or provides testing of individuals, to measure the extent of compliance
with each standard;
(5) Provides on-site evaluation or individual testing on a national
or international basis;
(6) Provides to evaluated programs and tested individuals time-
limited written certification of compliance with the organization's
standards;
(7) Excludes certification of any program operated by an
organization which has an economic interest, as defined in this section,
in the accreditation organization or in which the accreditation
organization has an economic interest;
(8) Publishes promptly the certification outcomes of each program
evaluation or individual test so that it is available to the general
public; and
(9) Has been found by the Director, OCHAMPUS, or designee, to apply
standards, criteria, and certification processes which reinforce CHAMPUS
provider authorization requirements and promote efficient delivery of
CHAMPUS benefits.
Radiation therapy services. The treatment of diseases by x-ray,
radium, or radioactive isotopes when ordered by the attending physician.
Rare Diseases. CHAMPUS defines a rare disease as one which affects
fewer than one in 200,000 Americans.
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Referral. The act or an instance of referring a CHAMPUS beneficiary
to another authorized provider to obtain necessary medical treatment.
Under CHAMPUS, only a physician may make referrals.
Registered nurse. A person who is prepared specially in the
scientific basis of nursing, who is a graduate of a school of nursing,
and who is registered for practice after examination by a state board of
nurse examiners or similar regulatory authority, who holds a current,
valid license, and who is entitled legally to use the designation R.N.
Rehabilitation. The reduction of an acquired loss of ability to
perform an activity in the manner, or within the range considered
normal, for a human being.
Reliable evidence. (1) As used in Sec. 199.4(g)(15), the term
reliable evidence means only:
(i) Well controlled studies of clinically meaningful endpoints,
published in refereed medical literature.
(ii) Published formal technology assessments.
(iii) The published reports of national professional medical
associations.
(iv) Published national medical policy organization positions; and
(v) The published reports of national expert opinion organizations.
(2) The hierarchy of reliable evidence of proven medical
effectiveness, established by (1) through (5) of this paragraph, is the
order of the relative weight to be given to any particular source. With
respect to clinical studies, only those reports and articles containing
scientifically valid data and published in the refereed medical and
scientific literature shall be considered as meeting the requirements of
reliable evidence. Specifically not included in the meaning of reliable
evidence are reports, articles, or statements by providers or groups of
providers containing only abstracts, anecdotal evidence or personal
professional opinions. Also not included in the meaning of reliable
evidence is the fact that a provider or a number of providers have
elected to adopt a drug, device, or medical treatment or procedure as
their personal treatment or procedure of choice or standard of practice.
Representative. Any person who has been appointed by a party to the
initial determination as counsel or advisor and who is otherwise
eligible to serve as the counsel or advisor of the party to the initial
determination, particularly in connection with a hearing.
Reservist. A person who is under an active duty call or order to one
of the Uniformed Services for a period of 30 days or less or is on
inactive training.
Resident (medical). A graduate physician or dentist who has an M.D.
or D.O. degree, or D.D.S. or D.M.D. degree, respectively, is licensed to
practice, and who choose to remain on the house staff of a hospital to
get further training that will qualify him or her for a medical or
dental specialty.
Residential treatment center (RTC). A facility (or distinct part of
a facility) which meets the criteria in Sec. 199.6(b)(4)(v).
Respite care. Respite care is short-term care for a patient in order
to provide rest and change for those who have been caring for the
patient at home, usually the patient's family.
Retiree. A member or former member of a Uniformed Service who is
entitled to retired, retainer, or equivalent pay based on duty in a
Uniformed Service.
Routine eye examinations. The services rendered in order to
determine the refractive state of the eyes.
Sanction. For purpose of Sec. 199.9, ``sanction'' means a provider
exclusion, suspension, or termination.
Secondary payer. The plan or program whose medical benefits are
payable in double coverage situations only after the primary payer has
adjudicated the claim.
Semiprivate room. A room containing at least two beds. If a room is
designated publicly as a semiprivate accommodation by the hospital or
other authorized institutional provider and contains multiple beds, it
qualifies as a semiprivate room for the purposes of CHAMPUS.
Serious physical disability. Any physiological disorder or condition
or anatomical loss affecting one or more body systems which has lasted,
or with reasonable certainty is expected to last, for a minimum period
of 12 contiguous
[[Page 80]]
months, and which precludes the person with the disorder, condition or
anatomical loss from unaided performance of at least one Major Life
Activity as defined in this section.
Skilled nursing facility. An institution (or a distinct part of an
institution) that meets the criteria as set forth in Sec.
199.6(b)(4)(iv) of this part.
Skilled nursing service. A service that can only be furnished by an
R.N., or L.P.N. or L.V.N., and is required to be performed under the
supervision of a physician to ensure the safety of the patient and
achieve the medically desired result. Examples of skilled nursing
services are intravenous for intramuscular injections, levin tube or
gastrostomy feedings, or tracheotomy aspiration and insertion. Skilled
nursing services are other than those services that provide primarily
support for the essentials of daily living or that could be performed by
an untrained adult with minimum instruction or supervision.
Specialized Treatment Service Facility. A military or civilian
medical treatment facility specifically designated pursuant to Sec.
199.4(a)(10) to be a referral facility for certain highly specialized
care. For this purpose, a civilian medical treatment facility may be
another federal facility (such as a Department of Veterans Affairs
hospital).
Spectacles, eyeglasses, and lenses. Lenses, including contact
lenses, that help to correct faulty vision.
Sponsor. A member or former member of a Uniformed Service upon whose
status his or her dependents' eligibility for CHAMPUS is based. A
sponsor also includes a person who, while a member of the Uniformed
Services and after becoming eligible to be retired on the basis of years
of service, has his or her eligibility to receive retired pay terminated
as a result of misconduct involving abuse of a spouse or dependent
child. It also includes NATO members who are stationed in or passing
through the United States on official business when authorized. It also
includes individuals eligible for CHAMPUS under the Transitional
Assistance Management Program.
Spouse. A lawful husband or wife, who meets the criteria in Sec.
199.3 of this part, regardless of whether or not dependent upon the
member or former member for his or her own support.
State. For purposes of this part, any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, and each territory and possession of
the United States.
State victims of crime compensation programs. Benefits available to
victims of crime under the Violent Crime Control and Law Enforcement
Act.
Student status. A dependent of a member or former member of a
Uniformed Service who has not passed his or her 23rd birthday, and is
enrolled in a full-time course of study in an institution of higher
learning.
Supplemental insurance plan. A health insurance policy or other
health benefit plan offered by a private entity to a CHAMPUS
beneficiary, that primarily is designed, advertised, marketed, or
otherwise held out as providing payment for expenses incurred for
services and items that are not reimbursed under CHAMPUS due to program
limitations, or beneficiary liabilities imposed by law. CHAMPUS
recognizes two types of supplemental plans, general indemnity plans, and
those offered through a direct service health maintenance organization
(HMO).
(1) An indemnity supplemental insurance plan must meet all of the
following criteria:
(i) It provides insurance coverage, regulated by state insurance
agencies, which is available only to beneficiaries of CHAMPUS.
(ii) It is premium based and all premiums relate only to the CHAMPUS
supplemental coverage.
(iii) Its benefits for all covered CHAMPUS beneficiaries are
predominantly limited to non-covered services, to the deductible and
cost-shared portions of the pre-determined allowable charges, and/or to
amounts exceeding the allowable charges for covered services.
(iv) It provides insurance reimbursement by making payment directly
to the CHAMPUS beneficiary or to the participating provider.
(v) It does not operate in a manner which results in lower
deductibles or cost-shares than those imposed by law,
[[Page 81]]
or that waives the legally imposed deductibles or cost-shares.
(2) A supplemental insurance plan offered by a Health Maintenance
Organization (HMO) must meet all of the following criteria:
(i) The HMO must be authorized and must operate under relevant
provisions of state law.
(ii) The HMO supplemental plan must be premium based and all
premiums must relate only to CHAMPUS supplemental coverage.
(iii) The HMO's benefits, above those which are directly reimbursed
by CHAMPUS, must be limited predominantly to services not covered by
CHAMPUS and CHAMPUS deductible and cost-share amounts.
(iv) The HMO must provide services directly to CHAMPUS beneficiaries
through its affiliated providers who, in turn, are reimbursed by
CHAMPUS.
(v) The HMO's premium structure must be designed so that no overall
reduction in the amount of the beneficiary deductibles or cost-shares
will result.
Suppliers of portable X-ray services. A supplier that meets the
conditions of coverage of the Medicare program, set forth in the
Medicare regulations (42 CFR 405.1411 through 405.1416 (as amended)) or
the Medicaid program in the state in which the covered service is
provided.
Surgery. Medically appropriate operative procedures, including
related preoperative and postoperative care; reduction of fractures and
dislocations; injections and needling procedures of the joints; laser
surgery of the eye; and those certain procedures listed in Sec.
199.4(c)(2)(i) of this part.
Surgical assistant. A physician (or dentist or podiatrist) who
assists the operating surgeon in the performance of a covered surgical
service when such assistance is certified as necessary by the attending
surgeon, when the type of surgical procedure being performed is of such
complexity and seriousness as to require a surgical assistant, and when
interns, residents, or other house staff are not available to provide
the surgical assistance services in the specialty area required.
Suspension of claims processing. The temporary suspension of
processing (to protect the government's interests) of claims for care
furnished by a specific provider (whether the claims are submitted by
the provider or beneficiary) or claims submitted by or on behalf of a
specific CHAMPUS beneficiary pending action by the Director, OCHAMPUS,
or a designee, in a case of suspected fraud or abuse. The action may
include the administrative remedies provided for in Sec. 199.9 or any
other Department of Defense issuance (e.g. DoD issuances implementing
the Program Fraud Civil Remedies Act), case development or investigation
by OCHAMPUS, or referral to the Department of Defense-Inspector General
or the Department of Justice for action within their cognizant
jurisdictions.
Teaching physician. A teaching physician is any physician whose
duties include providing medical training to physicians in training
within a hospital or other institutional provider setting.
Timely filing. The filing of CHAMPUS claims within the prescribed
time limits as set forth in Sec. 199.7 of this part.
Treatment plan. A detailed description of the medical care being
rendered or expected to be rendered a CHAMPUS beneficiary seeking
approval for inpatient benefits for which preauthorization is required
as set forth in Sec. 199.4(b) of this part. A treatment plan must
include, at a minimum, a diagnosis (either ICD-9-CM or DSM-III);
detailed reports of prior treatment, medical history, family history,
social history, and physical examination; diagnostic test results;
consultant's reports (if any); proposed treatment by type (such as
surgical, medical, and psychiatric); a description of who is or will be
providing treatment (by discipline or specialty); anticipated frequency,
medications, and specific goals of treatment; type of inpatient facility
required and why (including length of time the related inpatient stay
will be required); and prognosis. If the treatment plan involves the
transfer of a CHAMPUS patient from a hospital or another inpatient
facility, medical records related to that inpatient stay also are
required as a part of the treatment plan documentation.
[[Page 82]]
TRICARE extra plan. The health care option, provided as part of the
TRICARE program under Sec. 199.17, under which beneficiaries may choose
to receive care in facilities of the uniformed services, or from special
civilian network providers (with reduced cost sharing), or from any
other CHAMPUS-authorized provider (with standard cost sharing).
TRICARE prime plan. The health care option, provided as part of the
TRICARE program under Sec. 199.17, under which beneficiaries enroll to
receive all health care from facilities of the uniformed services and
civilian network providers (with civilian care subject to substantially
reduced cost sharing.
TRICARE program. The program establish under Sec. 199.17.
TRICARE standard plan. The health care option, provided as part of
the TRICARE program under Sec. 199.17, under which beneficiaries are
eligible for care in facilities of the uniformed services and CHAMPUS
under standard rules and procedures.
Uniform HMO benefit. The health care benefit established by Sec.
199.18.
Uniformed Services. The Army, Navy, Air Force, Marine Corps, Coast
Guard, Commissioned Corps of the USPHS, and the Commissioned Corps of
the NOAA.
Unlabeled or Off-Label Drugs. Food and Drug Administration (FDA)
approved drugs that are used for indications or treatments not included
in the approved labeling. The drug must be medically necessary for the
treatment of the condition for which it is administered, according to
accepted standards of medical practice.
Veteran. A person who served in the active military, naval, or air
service, and who was discharged or released therefrom under conditions
other than dishonorable.
Note: Unless the veteran is eligible for ``retired pay,''
``retirement pay,'' or ``retainer pay,'' which refers to payments of a
continuing nature and are payable at fixed intervals from the government
for military service neither the veteran nor his or her dependents are
eligible for benefits under CHAMPUS.
Waiver of benefit limits. Extension of current benefit limitations
under the Case Management Program, of medical care, services, and/or
equipment, not otherwise a benefit under the TRICARE/CHAMPUS program.
Well-child care. A specific program of periodic health screening,
developmental assessment, and routine immunization for dependents under
six years of age.
Widow or Widower. A person who was a spouse at the time of death of
a member or former member and who has not remarried.
Worker's compensation benefits. Medical benefits available under any
worker's compensation law (including the Federal Employees Compensation
Act), occupational disease law, employers liability law, or any other
legislation of similar purpose, or under the maritime doctrine of
maintenance, wages, and cure.
X-ray services. An x-ray examination from which an x-ray film or
other image is produced, ordered by the attending physician when
necessary and rendered in connection with a medical or surgical
diagnosis or treatment of an illness or injury, or in connection with
maternity or well-baby care.
[51 FR 24008, July 1, 1986, as amended at 64 FR 46134, Aug. 24, 1999]
Editorial Note: For Federal Register citations affecting Sec.
199.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Editorial Note: At 66 FR 45172, Aug. 27, 2001, Sec. 199.2, was
amended in part by revising the definition of ``Director, OCHAMPUS''.
However, because of inaccurate amendatory language, this amendment could
not be incorporated.
Effective Date Note: At 67 FR 40602, June 13, 2002, in Sec. 199.2
paragraph (b) was amended by revising the definitions of ``custodial
care'', ``domiciliary care'', ``skilled nursing facility'' and ``skilled
nursing services'', by adding definitions of ``activities of daily
living'', ``case-mix index'', ``homebound'', ``home health discipline'',
``home health market basket index'', ``intermittent home health aide and
skilled nursing services'', and ``part-time home health aide and skilled
nursing services'' in alphabetical order, and by removing the
definitions of ``essentials of daily living'' and ``private duty
(special) nursing services'', effective Aug. 12, 2002. For the
convenience of the user, the revised text is set forth as follows:
[[Page 83]]
Sec. 199.2 Definitions.
* * * * *
(b) * * *
Activities of daily living. Care that consists of providing food
(including special diets), clothing, and shelter; personal hygiene
services; observation and general monitoring; bowel training or
management (unless abnormalities in bowel function are of a severity to
result in a need for medical or surgical intervention in the absence of
skilled services); safety precautions; general preventive procedures
(such as turning to prevent bedsores); passive exercise; companionship;
recreation; transportation; and such other elements of personal care
that reasonably can be performed by an untrained adult with minimal
instruction or supervision. Activities of daily living may also be
referred to as ``essentials of daily living''.
* * * * *
Case-mix index. Case-mix index is a scale that measures the relative
difference in resources intensity among different groups receiving home
health services.
* * * * *
Custodial care. The term ``custodial care'' means treatment or
services, regardless of who recommends such treatment or services or
where such treatment or services are provided, that:
(1) Can be rendered safely and reasonably by a person who is not
medically skilled; or
(2) Is or are designed mainly to help the patient with the
activities of daily living.
* * * * *
Domiciliary care. The term ``domiciliary care'' means care provided
to a patient in an institution or homelike environment because:
(1) Providing support for the activities of daily living in the home
is not available or is unsuitable; or
(2) Members of the patient's family are unwilling to provide the
care.
* * * * *
Homebound. A beneficiary's condition is such that there exists a
normal inability to leave home and, consequently, leaving home would
require considerable and taxing effort. Any absence of an individual
from the home attributable to the need to receive health care
treatment--including regular absences for the purpose of participating
in therapeutic, psychosocial, or medical treatment in an adult day-care
program that is licensed or certified by a state, or accredited to
furnish adult day-care services in the state shall not disqualify an
individual from being considered to be confined to his home. Any other
absence of an individual from the home shall not disqualify an
individual if the absence is infrequent or of relatively short duration.
For purposes of the preceding sentence, any absence for the purpose of
attending a religious service shall be deemed to be an absence of
infrequent or short duration. Also, absences from the home for non-
medical purposes, such as an occasional trip to the barber, a walk
around the block or a drive, would not necessarily negate the
beneficiary's homebound status if the absences are undertaken on an
infrequent basis and are of relatively short duration.
Home health discipline. One of six home health disciplines covered
under the home health benefit (skilled nursing services, physical
therapy services, occupational therapy services, speech-language
pathology services, and medical social services).
Home health market basket index. An index that reflects changes over
time in the prices of an appropriate mix of goods and services included
in home health services.
* * * * *
Intermittent home health aide and skilled nursing services.
Intermittent means:
(1) Up to and including 28 hours per week of skilled nursing and
home health aide services combined, provided on a less-than-daily basis;
(2) Up to 35 hours per week of skilled nursing and home health aide
services combined that are provided on a less-than-daily basis, subject
to review by managed care support contractors on a case-by-case basis,
based upon documentation justifying the need for and reasonableness of
such additional care; or
(3) Up to and including full-time (i.e., eight hours per day)
skilled nursing and home health aide services combined which are
provided and needed seven days per week for temporary, but not
indefinite, periods of time of up to 21 days with allowances for
extensions in exceptional circumstances where the need for care in
excess of 21 days is finite and predictable.
* * * * *
Part-time home health aide and skilled nursing services. Part-time
means:
(1) Up to and including 28 hours per week of skilled nursing and
home health aide services combined for less than eight hours per day; or
(2) Up to 35 hours per week of skilled nursing and home health aide
services combined for less than eight hours per day subject to review by
managed care support contractors
[[Page 84]]
on a case-by-case basis, based upon documentation justifying the need
for and reasonableness of such additional care.
* * * * *
Skilled nursing facility. An institution (or a distinct part of an
institution) that meets the criteria as set forth in Sec.
199.6(b)(4)(vi).
Skilled nursing services. Skilled nursing services includes
application of professional nursing services and skills by an RN, LPN,
or LVN, that are required to be performed under the general supervision/
direction of a TRICARE-authorized physician to ensure the safety of the
patient and achieve the medically desired result in accordance with
accepted standards of practice.
* * * * *
Sec. 199.3 Eligibility.
(a) General.--This section sets forth those persons who, by the
provisions of 10 U.S.C. chapter 55, and the NATO Status of Forces
Agreement, are eligible for CHAMPUS benefits. A determination that a
person is eligible does not automatically entitle such a person to
CHAMPUS payments. Before any CHAMPUS benefits may be extended,
additional requirements, as set forth in other sections of this part,
must be met. Additionally, the use of CHAMPUS may be denied if a
Uniformed Service medical treatment facility capable of providing the
needed care is available. CHAMPUS relies primarily on the Defense
Enrollment Eligibility Reporting System (DEERS) for eligibility
verification.
(b) CHAMPUS eligibles--(1) Retiree. A member or former member of a
Uniformed Service who is entitled to retired, retainer, or equivalent
pay based on duty in a Uniformed Service.
(2) Dependent. Individuals whose relationship to the sponsor leads
to entitlement to benefits. CHAMPUS eligible dependents include the
following:
(i) Spouse. A lawful husband or wife of a member or former member.
The spouse of a deceased member or retiree must not be remarried. A
former spouse also may qualify for benefits as a dependent spouse. A
former spouse is a spouse who was married to a military member, or
former member, but whose marriage has been terminated by a final decree
of divorce, dissolution or annulment. To be eligible for CHAMPUS
benefits, a former spouse must meet the criteria described in paragraphs
(b)(2)(i)(A) through (b)(2)(i)(E) of this section and must qualify under
the group defined in paragraph (b)(2)(i)(F)(1) or (b)(2)(i)(F)(2) of
this section.
(A) Must be unremarried; and
(B) Must not be covered by an employer-sponsored health plan; and
(C) Must have been married to a member or former member who
performed at least 20 years of service which can be credited in
determining the member's or former member's eligibility for retired or
retainer pay; and
(D) Must not be eligible for Part A of Title XVIII of the Social
Security Act (Medicare) except as provided in paragraphs (b)(3),
(f)(3)(vii), (f)(3)(viii) and (f)(3)(ix) of this section; and
(E) Must not be the dependent of a NATO member; and
(F) Must meet the requirements of paragraph (b)(2)(i)(F)(1) or
(b)(2)(i)(F)(2) of this section:
(1) The former spouse must have been married to the same member or
former member for at least 20 years, at least 20 of which were
creditable in determining the member's or former member's eligibility
for retired or retainer pay. Eligibility continues indefinitely unless
affected by any of the conditions of paragraphs (b)(2)(i)(A) through
(b)(2)(i)(E) of this section.
(i) If the date of the final decree of divorce, dissolution, or
annulment was before February 1, 1983, the former spouse is eligible for
CHAMPUS coverage of health care received on or after January 1, 1985.
(ii) If the date of the final decree of the divorce, dissolution, or
annulment was on or after February 1, 1983, the former spouse is
eligible for CHAMPUS coverage of health care which is received on or
after the date of the divorce, dissolution, or annulment.
(2) The former spouse must have been married to the same member or
former member for at least 20 years, and at least 15, but less than 20
of those married years were creditable in determining the member's or
former member's eligibility for retired or retainer pay.
[[Page 85]]
(i) If the date of the final decree of divorce, dissolution, or
annulment is before April 1, 1985, the former spouse is eligible only
for care received on or after January 1, 1985, or the date of the
divorce, dissolution, or annulment, whichever is later. Eligibility
continues indefinitely unless affected by any of the conditions of
paragraphs (b)(2)(i)(A) through (b)(2)(i)(E) of this section.
(ii) If the date of the final decree of divorce, dissolution or
annulment is on or after April 1, 1985, but before September 29, 1988,
the former spouse is eligible only for care received from the date of
the decree of divorce, dissolution, or annulment until December 31,
1988, or for two years from the date of the divorce, dissolution, or
annulment, whichever is later.
(iii) If the date of the final decree of divorce, dissolution, or
annulment is on or after September 29, 1988, the former spouse is
eligible only for care received within the 365 days (366 days in the
case of a leap year) immediately following the date of the divorce,
dissolution, or annulment.
(ii) Child. A dependent child is an unmarried child of a member or
former member who has not reached his or her twenty-first (21st)
birthday, except an incapacitated adopted child meeting the requirements
of paragraph (b)(2)(ii)(H)(2) of this section, and who bears one of the
following relationships to a member or former member of one of the
Uniformed Services:
(A) A legitimate child; or
(B) An adopted child whose adoption has been legally completed on or
before the child's twenty-first (21st) birthday; or
(C) A legitimate stepchild; or
(D) An illegitimate child of a member or former member whose
paternity/maternity has been determined judicially, and the member or
former member directed to support the child; or
(E) An illegitimate child of a member or former member whose
paternity/maternity has not been determined judicially, who resides with
or in the home provided by the member or former member, and is or
continues to be dependent upon the member or former member for over one-
half of his or her support, or who was so dependent on the former member
at the time of the former member's death; or
(F) An illegitimate child of a spouse of a member who resides with
or in a home provided by the member and is, and continues to be
dependent upon the member for over one-half of his or her support; or
(G) An illegitimate child of a spouse of a former member who resides
with or in a home provided by a former member or the former member's
spouse at the time of death of the former member, and is, or continues
to be, or was, dependent upon the former member for more than one-half
of his or her support at the time of death; or
(H) An individual who falls into one of the following classes:
(1) A student. A child determined to be a member of one of the
classes in paragraphs (b)(2)(ii)(A) through (b)(2)(ii)(G) of this
section, who is not married, has passed his or her 21st birthday but has
not passed his or her 23rd birthday, is dependent upon the member or
former member for over 50 percent of his or her support or was dependent
upon the member or former member for over 50 percent of his or her
support on the date of the member's or former member's death, and is
pursuing a full-time course of education in an institution of higher
learning approved by the Secretary of Defense or the Department of
Education (as appropriate) or by a state agency under 38 U.S.C. chapters
34 and 35.
Note: Courses of education offered by institutions listed in the
``Education Directory,'' ``Higher Education'' or ``Accredited Higher
Institutions'' issued periodically by the Department of Education meet
the criteria approved by the Administering Secretary or the Secretary of
Education. For determination of approval of courses offered by a foreign
institution, by an institution not listed in either of the above
directories, or by an institution not approved by a state agency
pursuant to 38 U.S.C. chapters 34 and 35, a statement may be obtained
from the Department of Education, Washington, D.C. 20202.
(2) An incapacitated child. A child determined to be a member of one
of the classes in paragraphs (b)(2)(ii)(A) through (b)(2)(ii)(G) of this
section, who is not married and is incapable of
[[Page 86]]
self-support because of a mental or physical disability that:
(i) Existed before the child's twenty-first (21st) birthday; or
(ii) Occurred between the ages of 21 and 23 while the child was
enrolled in a full-time course of study in an institution of higher
learning approved by the Administering Secretary or the Department of
Education (see NOTE to paragraph (b)(2)(ii)(H)(2)(iii) of this section),
and is or was at the time of the member's or former member's death
dependent on the member or former member for over one-half of his or her
support; and
(iii) The incapacity is continuous. (If the incapacity significantly
improves or ceases at any time, CHAMPUS eligibility cannot be reinstated
on the basis of the incapacity, unless the incapacity recurs and the
beneficiary is under age 21, or is under age 23 and is enrolled as a
full-time student under paragraph (b)(2)(ii)(H)(2)(ii) of this section.
If the child was not incapacitated after that date, no CHAMPUS
eligibility exists on the basis of the incapacity. However,
incapacitated children who marry and who subsequently become unmarried
through divorce, annulment, or death of spouse, may be reinstated as
long as they still meet all other requirements).
Note: An institution of higher learning is a college, university, or
similar institution, including a technical or business school, offering
post-secondary level academic instruction that leads to an associate or
higher degree, if the school is empowered by the appropriate State
education authority under State law to grant an associate, or higher,
degree. When there is no State law to authorize the granting of a
degree, the school may be recognized as an institution of higher
learning if it is accredited for degree programs by a recognized
accrediting agency. The term also shall include a hospital offering
educational programs at the post-secondary level regardless of whether
the hospital grants a post-secondary degree. The term also shall include
an educational institution that is not located in a State, that offers a
course leading to a standard college degree, or the equivalent, and that
is recognized as such by the Secretary of Education (or comparable
official) of the country, or other jurisdiction, in which the
institution is located (38 U.S.C. chapter 34, section 1661, and chapter
35, section 1701.
Courses of education offered by institutions listed in the
``Education Directory,'' ``Higher Education'' or ``Accredited Higher
Institutions'' issued periodically by the Department of Education meet
the criteria approved by the Administering Secretary or the Secretary of
Education. For determination of approval of courses offered by a foreign
institution, by an institution not listed in either of the above
directories, or by an institution not approved by a state agency
pursuant to chapters 34 and 35 of 38 U.S.C., a statement may be obtained
from the Department of Education, Washington, D.C. 20202.
(3) A child of a deceased reservist. A child, who is determined to
be a member of one of the classes in paragraphs (b)(2)(ii)(A) through
(b)(2)(ii)(G) of this section, of a reservist in a Uniformed Service who
incurs or aggravates an injury, illness, or disease, during, or on the
way to or from, active duty training for a period of 30 days or less or
inactive duty training, and the reservist dies as a result of that
specific injury, illness or disease.
(4) A child placed in legal custody of a member or former member. A
child who is placed in legal custody of a member or former member by a
court or who is placed in the home of a member or former member by a
recognized placement agency in anticipation of the legal adoption of the
child.
(iii) Abused dependents.--(A) Categories of abused dependents. An
abused dependent may be either a spouse or a child. Eligibility for
either class of abused dependent results from being either:
(1) The spouse (including a former spouse) or child of a member who
has received a dishonorable or bad-conduct discharge, or dismissal from
a Uniformed Service as a result of a court-martial conviction for an
offense involving physical or emotional abuse of the spouse or child, or
was administratively discharged as a result of such an offense. Until
October 17, 1998, Medical benefits are limited to care related to the
physical or emotional abuse and for a period of 12 months following the
member's separation from the Uniformed Service. On or after October 17,
1998, medical benefits can include all under the Basic Program and under
the Program for Persons with Disabilities for the period that the spouse
or child is in receipt of transitional compensation under section 1059
of title 10 U.S.C.
(2) The spouse (including a former spouse) or child of a member or
former
[[Page 87]]
member who while a member and as a result of misconduct involving abuse
of the spouse or child has eligibility to receive retired pay on the
basis of years of service terminated.
(B) Requirements for categories of abused dependents--(1) Abused
spouse. As long as the spouse is receiving payments from the DoD
Military Retirement Fund under court order, the spouse is eligible for
health care under the same conditions as any spouse of a retired member.
The abused spouse must:
(i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a lawful
husband or wife or a former spouse of the member; or
(ii) Under paragraph (b)(2)(iii)(A)(2) of this section, be a lawful
husband or wife or a former spouse of the member or former member, and
the spouse is receiving payments from the Department of Defense Military
Retirement Fund under 10 U.S.C. 1408(h) pursuant to a court order; and
(A) Be a victim of the abuse; and
(B) Have been married to the member or former member at the time of
the abuse; or
(C) Be the natural or adoptive parent of a dependent child of the
member or former member who was the victim of the abuse.
(2) Abused child. The abused child must:
(i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a
dependent child of the member or former member.
(ii) Under paragraph (b)(2)(iii)(A)(2) of this section,
(A) Have been a member of the household where the abuse occurred;
and
(B) Be an unmarried legitimate child, including an adopted child or
stepchild of the member or former member; and
(C) Be under the age of 18; or
(D) Be incapable of self support because of a mental or physical
incapacity that existed before becoming 18 years of age and be dependent
on the member or former member for over one-half of his or her support;
or
(E) If enrolled in a full-time course of study in an institution of
higher learning recognized by the Secretary of Defense (for the purposed
of 10 U.S.C. 1408(h)), be under 23 years of age and be dependent on the
member or former member for over one-half of his or her support.
(F) The dependent child is eligible for health care, regardless of
whether any court order exists, under the same conditions as any
dependent of a retired member.
(3) TAMP eligibles. A former member, including his or her
dependents, who is eligible under the provisions of the Transitional
Assistance Management Program as described in paragraph (e) of this
Sec. 199.3.
(3) Eligibility under TRICARE Senior Pharmacy Program. Section 711
of the National Defense Authorization Act for Fiscal Year 2001 (Public
Law 106-398, 114 Stat. 1654) established the TRICARE Senior Pharmacy
Program effective April 1, 2001. To be eligible for this program, a
person is required to be:
(i) Medicare eligible, who is:
(A) 65 years of age or older; and
(B) Entitled to Medicare Part A; and
(C) Enrolled in Medicare Part B, except for a person who attained
age 65 prior to April 1, 2001, is not required to enroll in Part B; and
(ii) Otherwise qualified under one of the following categories:
(A) A retired uniformed service member who is entitled to retired or
retainer pay, or equivalent pay including survivors who are annuitants;
or
(B) A dependent of a member of the uniformed services described in
one of the following:
(1) A member who is on active duty for a period of more than 30 days
or died while on such duty; or
(2) A member who died from an injury, illness, or disease incurred
or aggravated while the member was:
(i) On active duty under a call or order to active duty of 30 days
or less, on active duty for training, or on inactive duty training; or
(ii) Traveling to or from the place at which the member was to
perform or had performed such active duty, active duty for training, or
inactive duty training.
Note to paragraph (b)(3)(ii)(B):
Dependent under Section 711 of the National Defense Authorization
Act for Fiscal Year 2001 includes spouse, unremarried widow/widower,
child, parent/parent-in-law, unremarried former spouse, and unmarried
person in the
[[Page 88]]
legal custody of a member or former member, as those terms of dependency
are defined and periods of eligibility are set forth in 10 U.S.C.
1072(2).
(4) Medal of Honor recipients. (i) A former member of the armed
forces who is a Medal of Honor recipient and who is not otherwise
entitled to medical and dental benefits has the same CHAMPUS eligibility
as does a retiree.
(ii) Immediate dependents. CHAMPUS eligible dependents of a Medal of
Honor Recipient are those identified in paragraphs (b)(2)(i) of this
section (except for former spouses) and (b)(2)(ii) of this section
(except for a child placed in legal custody of a Medal of Honor
recipient under (b)(2)(ii)(H)(4) of this section).
(iii) Effective date. The CHAMPUS eligibility established by
paragraphs (b)(4)(i) and (ii) of this section is applicable to health
care services provided on or after October 30, 2000.
(c) Beginning dates of eligibility. (1) Beginning dates of
eligibility depend on the class to which the individual belongs and the
date the individual became a member of the class. Those who join after
the class became eligible attain individual eligibility on the date they
join.
(2) Beginning dates of eligibility for each class of spouse
(excluding spouses who are victims of abuse and eligible spouses of
certain deceased reservists) are as follows:
(i) A spouse of a member for:
(A) Medical benefits authorized by the Dependents' Medical Care Act
of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1,
1966;
(C) Inpatient medical benefits under the Basic Program and benefits
under the Program for Persons with Disabilities, January 1, 1967;
(ii) A spouse of a former member:
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(iii) A former spouse:
(A) For medical benefits under the Basic Program, dates of beginning
eligibility are as indicated for each category of eligible former spouse
identified within paragraph (b)(2)(i) of this section.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(3) Beginning dates of eligibility for spouses who are victims of
abuse (excluding spouses who are victims of abuse of certain deceased
reservists) are as follows:
(i) An abused spouse meeting the requirements of paragraph
(b)(2)(iii)(A)(1) of this section, including an eligible former spouse:
(A) For medical and dental care for problems associated with the
physical or emotional abuse under the Basic Program for a period of up
to one year (12 months) following the person's separation from the
Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for
the period that the spouse is in receipt of transitional compensation
under section 1059 of title 10 U.S.C., October 17, 1998.
(C) For medical and dental care for problems associated with the
physical or emotional abuse under the Program for Persons with
Disabilities for a period up to one year (12 months) following the
person's separation from the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5
for the period that the spouse is in receipt of transitional
compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused spouse meeting the requirements of paragraphs
(b)(2)(iii)(A)(2) of this section, including an eligible former spouse:
(A) For all benefits under the CHAMPUS Basic Program, October 23,
1992.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(4) Beginning dates of eligibility for spouses of certain deceased
reservists, including spouses who are victims of abuse of certain
deceased reservists, are as follows:
(i) A spouse meeting the requirements of paragraph (b)(2)(i) of this
section, including an eligible former spouse:
(A) For benefits under the Basic Program, November 14, 1986.
[[Page 89]]
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(ii) An abused spouse of certain deceased reservists, meeting the
requirements of paragraphs (b)(2)(iii) of this section, including an
eligible former spouse, for the limited benefits and period of
eligibility described in paragraphs (b)(2)(iii) of this section:
(A) For benefits under the Basic Program, November 14, 1986.
(B) For benefits under the Program for Persons with Disabilities,
November 14, 1986.
(iii) An abused spouse of certain deceased reservists, including an
eligible former spouse, meeting the requirements of paragraphs
(b)(2)(iii) of this section:
(A) For benefits under the Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(5) Beginning dates of eligibility for each class of dependent
children, (excluding dependent children of certain deceased reservists,
abused children and incapacitated children whose incapacity occurred
between the ages of 21 and 23 while enrolled in a full-time course of
study in an institution of higher learning), are as follows:
(i) Legitimate child, adopted child, or legitimate stepchild of a
member, for:
(A) Medical benefits authorized by the Dependents' Medical Care Act
of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1,
1966;
(C) Inpatient medical benefits under the Basic Program and benefits
under the Program for Persons with Disabilities, January 1, 1967;
(ii) Legitimate child, adopted child or legitimate stepchild of
former members:
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(iii) Illegitimate child of a male or female member or former member
whose paternity/maternity has been determined judicially and the member
or former member has been directed to support the child, for:
(A) All benefits for which otherwise entitled, August 31, 1972.
(B) Program for Persons with Disabilities benefits limited to
dependent children of members only, August 31, 1972.
(iv) Illegitimate child of:
(A) A male member or former member whose paternity has not been
determined judicially:
(B) A female member or former member who resides with, or in a home
provided by the member or former member, or who was residing in a home
provided by the member or former member at the time of the member's or
former member's death, and who is or continues to be dependent on the
member for over one-half of his or her support, or was so dependent on
the member or former member at the time of death;
(C) A spouse of a member or former member who resides with or in a
home provided by the member or former member, or the parent who is the
spouse of the member or former member or was the spouse of a member or
former member at the time of death, and who is and continues to be
dependent upon the member or former member for over one-half of his or
her support, or was so dependent on the member or former member at the
time of death; for:
(1) All benefits for which otherwise eligible, January 1, 1969.
(2) Program for Persons with Disabilities limited to dependent
children of members only, January 1, 1969.
(6) Beginning dates of eligibility for children of certain deceased
reservists who meet the requirements of paragraph (b)(2)(ii)(H)(3) of
this section, excluding incapacitated children who meet the requirements
of paragraph (b)(2)(ii)(H)(2) of this section, for:
(i) Benefits under the Basic program, November 14, 1986.
(ii) Not eligible for benefits under the Program for Persons with
Disabilities.
(7) Beginning dates of eligibility for children who are victims of
abuse, including incapacitated children who meet the requirements of
paragraph (b)(2)(ii)(H)(2) of this section are as follows:
(i) An abused child meeting the requirements of paragraph
(b)(2)(iii)(A)(1) of this section:
[[Page 90]]
(A) Medical and dental care for problems associated with the
physical or emotional abuse under the Basic Program for a period of up
to one year (12 months) following the person's separation from the
Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for
the period that the child is in receipt of transitional compensation
under section 1059 of title 10 U.S.C., October 17, 1998.
(C) Medical and dental care for problems associated with the
physical or emotional abuse under the Program for Persons with
Disabilities for a period up to one year (12 months) following the
person's separation from the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5
for the period that the child is in receipt of transitional compensation
under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused child meeting the requirements of paragraphs
(b)(2)(iii)(A)(2) of this section:
(A) For all benefits under the CHAMPUS Basic Program, October 23,
1992.
(B) Ineligible for benefits under the Program for Persons with
Disabilities.
(8) Beginning dates of eligibility for incapacitated children who
meet the requirements of paragraph (b)(2)(ii)(H)(2) of this section,
whose incapacity occurred between the ages of 21 and 23 while enrolled
in a full-time course of study in an institution of higher learning
approved by the Administering Secretary or the Department of Education,
and, are or were at the time of the member's or former member's death,
dependent on the member or former member for over one-half of their
support, for:
(i) All benefits for which otherwise entitled, October 23, 1992.
(ii) Program for Persons with Disabilities benefits limited to
children of members only, October 23, 1992.
(9) Beginning dates of eligibility for a child who meets the
requirements of paragraph (b)(2)(ii)(H)(4) and:
(i) Has been placed in custody by a court:
(A) All benefits for which entitled, July 1, 1994.
(B) Program for Persons with Disabilities benefits limited to
children of members only, July 1, 1994.
(ii) Has been placed in custody by a recognized adoption agency:
(A) All benefits for which entitled, October 5, 1994.
(B) Program for Persons with Disabilities benefits limited to
children of members only, October 5, 1994.
(10) Beginning dates of eligibility for a retiree for:
(i) Medical benefits under the Basic Program January 1, 1967.
(ii) Retirees and their dependents are not eligible for benefits
under the Program for Persons with Disabilities.
(d) Dual eligibility. Dual eligibility occurs when a person is
entitled to benefits from two sources. For example, when an active duty
member is also the dependent of another active duty member, a retiree,
or a deceased active duty member or retiree, dual eligibility, that is,
entitlement to direct care from the Uniformed Services medical care
system and CHAMPUS is the result. Since the active duty status is
primary, and it is the intent that all medical care be provided an
active duty member through the Uniformed Services medical care system,
CHAMPUS eligibility is terminated as of 12:01 a.m. on the day following
the day the dual eligibility begins. However, any dependent children in
a marriage of two active duty persons or of an active duty member and a
retiree, are CHAMPUS eligible in the same manner as dependent children
of a marriage involving only one CHAMPUS sponsor. Should a spouse or
dependent who has dual eligibility leave active duty status, that
person's CHAMPUS eligibility is reinstated as of 12:01 a.m. of the day
active duty ends, if he or she otherwise is eligible as a dependent of a
CHAMPUS sponsor.
Note: No CHAMPUS eligibility arises as the result of the marriage of
two active duty members.
(e) Eligibility Under the Transitional Assistance Management Program
(TAMP).Transitional health care benefits under CHAMPUS are authorized
for the applicable time period described, for:
[[Page 91]]
(1) Up to thirty (30) days or until again covered by an employer-
sponsored health plan, whichever occurs earlier, following release from
active duty for:
(i) Activated Guard/Reserve and their dependents,
(ii) Involuntary stop-loss and their dependents,
(iii) Voluntary stop-loss and their dependents, and
(iv) Members who accepted Voluntary Separation Incentives (VSI).
(2) Sixty (60) days for regular DoD military and their dependents
when the sponsor is involuntarily separated with less than six years of
active service. Involuntary separation must occur during the five-year
period beginning October 1, 1990.
(3) One hundred twenty (120) days for regular military and their
dependents when the sponsor is involuntarily separated with six or more
years of active service. Involuntary separation must occur during the
five year period beginning October 1, 1990. Each branch of service will
determine eligibility, including dates, for its members and their
dependents and provide data to DEERS.
(f) Changes in status which result in termination of CHAMPUS
eligibility. Changes in status which result in a loss of CHAMPUS
eligibility as of 12:01 a.m. of the day following the day the event
occurred, unless otherwise indicated, are as follows:
(1) Changes in the status of a member. (i) When an active duty
member's period of active duty ends, excluding retirement or death.
(ii) When an active duty member is placed on desertion status
(eligibility is reinstated when the active duty member is removed from
desertion status and returned to military control).
Note: A member serving a sentence of confinement in conjunction with
a sentence of punitive discharge is still considered on active duty
until such time as the discharge is executed.
(2) Changes in the status of a retiree. (i) When a retiree ceases to
be entitled to retired, retainer, or equivalent pay for any reason, the
retiree's dependents lose their eligibility unless the dependent is
otherwise eligible (e.g., some former spouses, some dependents who are
victims of abuse and some incapacitated children as outlined in
paragraph (b)(2)(ii)(H)(2) of this section).
(ii) A retiree also loses eligibility when no longer entitled to
retired, retainer, or equivalent pay.
Note: A retiree who waives his or her retired, retainer or
equivalent pay is still considered a retiree for the purposes of CHAMPUS
eligibility.
(3) Changes in the status of a dependent. (i) Divorce, except for
certain classes of former spouses as provided in paragraph (b)(2)(i) of
this section and the member or former member's own children (i.e.,
legitimate, adopted, and judicially determined illegitimate children).
Note: An unadopted stepchild loses eligibility as of 12:01 a.m. of
the day following the day the divorce becomes final.
(ii) Annulment, except for certain classes of former spouse as
provided in paragraph (b)(2)(i) of this section and the member or former
member's own children (i.e., legitimate, adopted, and judicially
determined illegitimate children).
Note: An unadopted stepchild loses eligibility as of 12:01 a.m. of
the day following the day the annulment becomes final.
(iii) Adoption, except for adoptions occurring after the death of a
member or former member.
(iv) Marriage of a child, except when the marriage is terminated by
death, divorce, or annulment before the child is 21 or 23 if an
incapacitated child as provided in paragraph (b)(2)(ii)(H)(2) of this
section.
(v) Marriage of a widow or widower, except for the child of the
widow or widower who was the stepchild of the deceased member or former
member at the time of death. The stepchild continues CHAMPUS eligibility
as other classes of dependent children.
(vi) Attainment of entitlement to hospital insurance benefits (Part
A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii),
(f)(3)(viii) and (f)(3)(ix) of this section. (This also applies to
individuals living outside the United States where Medicare benefits are
not available.)
(vii) Attainment of age 65, except for dependents of active duty
members, beneficiaries not eligible for Part A of
[[Page 92]]
Medicare, beneficiaries entitled to Part A of Medicare who have enrolled
in Part B of Medicare; and as provided in paragraph (b)(3) of this
section. For those who do not retain CHAMPUS, CHAMPUS eligibility is
lost at 12:01 a.m. on the first day of the month in which the
beneficiary becomes entitled to Medicare.
Note: If the person is not eligible for Part A of Medicare, he or
she must file a Social Security Administration ``Notice of
Disallowance'' certifying to that fact with the Uniformed Service
responsible for the issuance of his or her identification card so a new
card showing CHAMPUS eligibility can be issued. Individuals entitled
only to supplementary medical insurance (Part B) of Medicare, but not
Part A, or Part A through the Premium HI provisions (provided for under
the 1972 Amendments to the Social Security Act) retain eligibility under
CHAMPUS (refer to Sec. 199.8 for additional information when a double
coverage situation is involved).
(viii) End stage renal disease. All beneficiaries, except dependents
of active duty members, lose their CHAMPUS eligibility when Medicare
coverage becomes available to a person because of chronic renal disease
unless the following conditions have been met. CHAMPUS eligibility will
continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions
of 42 U.S.C. 426-1(a);
(C) The individual is enrolled in Part B of Medicare; and
(D) The individual has applied and qualified for continued CHAMPUS
eligibility through the Defense Enrollment Eligibility Reporting System
(DEERS).
(ix) Individuals with certain disabilities. Each case relating to
Medicare eligibility resulting from being disabled requires individual
investigation. All beneficiaries except dependents of active duty
members lose their CHAMPUS eligibility when Medicare coverage becomes
available to a disabled person unless the following conditions have been
met. CHAMPUS eligibility will continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions
of 42 U.S.C. 426(b)(2);
(C) The individual is enrolled in Part B of Medicare; and
(D) The individual has applied and qualified for continued CHAMPUS
eligibility through the Defense Enrollment Eligibility Reporting System
(DEERS).
(x) Disabled students, that is children age 21 or 22, who are
pursuing a full-time course of higher education and who, either during
the school year or between semesters, suffer a disabling illness or
injury with resultant inability to resume attendance at the institution
remain eligible for CHAMPUS medical benefits for 6 months after the
disability is removed or until the student passes his or her 23rd
birthday, whichever occurs first. However, if recovery occurs before the
23rd birthday and there is resumption of a full-time course of higher
education, CHAMPUS benefits can be continued until the 23rd birthday.
The normal vacation periods during an established school year do not
change the eligibility status of a dependent child 21 or 22 years old in
a full time student status. Unless an incapacitating condition existed
before, and at the time of, a dependent child's 21st birthday, a
dependent child 21 or 22 years old in student status does not have
eligibility and may not qualify for eligibility under the requirements
related to mental or physical incapacity as described in paragraph
(b)(2)(ii)(H)(2) of this section.
(g) Reinstatement of CHAMPUS eligibility. Circumstances which result
in reinstatement of CHAMPUS eligibility are as follows:
(1) End Stage renal disease. Unless CHAMPUS eligibility has been
continued under paragraph (f)(3)(viii) of the section, when Medicare
eligibility ceases for end-stage renal disease patients, CHAMPUS
eligibility resumes if the person is otherwise still eligible. He or she
is required to take action to be reinstated as a CHAMPUS beneficiary and
to obtain a new identification card.
(2) Disability. Some disabilities are permanent, others temporary.
Each case must be reviewed individually. Unless CHAMPUS eligibility has
been
[[Page 93]]
continued under paragraph (f)(3)(ix) of this section, when disability
ends and Medicare eligibility ceases, CHAMPUS eligibility resumes if the
person is otherwise still eligible. Again, he or she is required to take
action to obtain a new CHAMPUS identification card.
(h) Determination of eligibility status. Determination of an
individual's eligibility as a CHAMPUS beneficiary is the primary
responsibility of the Uniformed Service in which the member or former
member is, or was, a member, or in the case of dependents of a NATO
military member, the Service that sponsors the NATO member. For the
purpose of program integrity, the appropriate Uniformed Service shall,
upon request of the Director, OCHAMPUS, review the eligibility of a
specific person when there is reason to question the eligibility status.
In such cases, a report on the results of the review and any action
taken will be submitted to the Director, OCHAMPUS, or a designee.
(i) Procedures for determination of eligibility. Procedures for the
determination of eligibility are prescribed within the Department of
Defense Instruction 1000.13 available at local military facilities
personnel offices.
(j) CHAMPUS procedures for verification of eligibility. (1)
Eligibility for CHAMPUS benefits will be verified through the Defense
Enrollment Eligibility Reporting System (DEERS) maintained by the
Uniformed Services, except for abused dependents as set forth in
paragraph (b)(2)(iii) of this section. It is the responsibility of the
CHAMPUS beneficiary, or parent, or legal representative, when
appropriate, to provide the necessary evidence required for entry into
the DEERS file to establish CHAMPUS eligibility and to ensure that all
changes in status that may affect eligibility be reported immediately to
the appropriate Uniformed Service for action.
(2) Ineligibility for CHAMPUS benefits may be presumed in the
absence of prescribed eligibility evidence in the DEERS file.
(3) The Director, OCHAMPUS, shall issue guidelines as necessary to
implement the provisions of this section.
[64 FR 46135, Aug. 24, 1999, as amended at 66 FR 9654, Feb. 9, 2001; 66
FR 16400, Mar. 26, 2001; 66 FR 40606, Aug. 3, 2001; 67 FR 15725, Apr. 3,
2002]
Sec. 199.4 Basic program benefits.
(a) General. The CHAMPUS Basic Program is essentially a supplemental
program to the Uniformed Services direct medical care system. The Basic
Program is similar to private insurance programs, and is designed to
provide financial assistance to CHAMPUS beneficiaries for certain
prescribed medical care obtained from civilian sources.
(1)(i) Scope of benefits. Subject to all applicable definitions,
conditions, limitations, or exclusions specified in this part, the
CHAMPUS Basic Program will pay for medically necessary services and
supplies required in the diagnosis and treatment of illness or injury,
including maternity care and well-baby care. Benefits include specified
medical services and supplies provided to eligible beneficiaries from
authorized civilian sources such as hospitals, other authorized
institutional providers, physicians, other authorized individual
professional providers, and professional ambulance service, prescription
drugs, authorized medical supplies, and rental or purchase of durable
medical equipment.
(ii) Impact of TRICARE program. The basic program benefits set forth
in this section are applicable to the basic CHAMPUS program. In areas in
which the TRICARE program is implemented, certain provisions of Sec.
199.17 will apply instead of the provisions of this section. In those
areas, the provisions of Sec. 199.17 will take precedence over any
provisions of this section with which they conflict.
(2) Persons eligible for Basic Program benefits. Persons eligible to
receive the Basic Program benefits are set forth in Sec. 199.3 of this
part. Any person determined to be an eligible CHAMPUS beneficiary is
eligible for Basic Program benefits.
[[Page 94]]
(3) Authority to act for CHAMPUS. The authority to make benefit
determinations and authorize the disbursement of funds under CHAMPUS is
restricted to the Director, OCHAMPUS; designated OCHAMPUS staff;
Director, OCHAMPUSEUR; or CHAMPUS fiscal intermediaries. No other
persons or agents (such as physicians, staff members of hospitals, or
CHAMPUS health benefits advisors) have such authority.
(4) Status of patient controlling for purposes of cost-sharing.
Benefits for covered services and supplies described in this section
will be extended either on an inpatient or outpatient cost-sharing basis
in accordance with the status of the patient at the time the covered
services and supplies were provided, unless otherwise specifically
designated (such as for ambulance service or maternity care). For cost-
sharing provisions, refer to paragraph (f) of this section.
(5) Right to information. As a condition precedent to the provision
of benefits hereunder, OCHAMPUS or its CHAMPUS fiscal intermediaries
shall be entitled to receive information from a physician or hospital or
other person, institution, or organization (including a local, state, or
U.S. Government agency) providing services or supplies to the
beneficiary for which claims or requests for approval for benefits are
submitted. Such information and records may relate to the attendance,
testing, monitoring, or examination or diagnosis of, or treatment
rendered, or services and supplies furnished to a beneficiary, and shall
be necessary for the accurate and efficient administration of CHAMPUS
benefits. Before a determination will be made on a request for
preauthorization or claim of benefits, a beneficiary or sponsor must
provide particular additional information relevant to the requested
determination, when necessary. The recipient of such information shall
in every case hold such records confidential except when:
(i) Disclosure of such information is authorized specifically by the
beneficiary;
(ii) Disclosure is necessary to permit authorized governmental
officials to investigate and prosecute criminal actions, or
(iii) Disclosure is authorized or required specifically under the
terms of the Privacy Act or Freedom of Information Act (refer to Sec.
199.1(m) of this part).
For the purposes of determining the applicability of and implementing
the provisions of Sec. Sec. 199.8, 199.11, and 199.12, or any provision
of similar purpose of any other medical benefits coverage or
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries may release,
without consent or notice to any beneficiary or sponsor, to any person,
organization, government agency, provider, or other entity any
information with respect to any beneficiary when such release
constitutes a routine use published in the Federal Register in
accordance with DoD 5400.11-R (Privacy Act (5 U.S.C. 552a)). Before a
person's claim of benefits will be adjudicated, the person must furnish
to CHAMPUS information that reasonably may be expected to be in his or
her possession and that is necessary to make the benefit determination.
Failure to provide the requested information may result in denial of the
claim.
(6) Physical examinations. The Director, OCHAMPUS, or a designee,
may require a beneficiary to submit to one or more medical (including
psychiatric) examinations to determine the beneficiary's entitlement to
benefits for which application has been made or for otherwise authorized
medically necessary services and supplies required in the diagnosis or
treatment of an illness or injury (including maternity and well-baby
care). When a medical examination has been requested, CHAMPUS will
withhold payment of any pending claims or preauthorization requests on
that particular beneficiary. If the beneficiary refuses to agree to the
requested medical examination, or unless prevented by a medical reason
acceptable to OCHAMPUS, the examination is not performed within 90 days
of initial request, all pending claims for services and supplies will be
denied. A denial of payments for services or supplies provided before
(and related to) the request for a physical examination is not subject
to reconsideration. The medical examination and required beneficiary
travel related to performing the
[[Page 95]]
requested medical examination will be at the expense of CHAMPUS. The
medical examination may be performed by a physician in a Uniformed
Services medical facility or by an appropriate civilian physician, as
determined and selected by the Director, OCHAMPUS, or a designee who is
responsible for making such arrangements as are necessary, including
necessary travel arrangements.
(7) Claims filing deadline. For all services provided on or after
January 1, 1993, to be considered for benefits, all claims submitted for
benefits must, except as provided in Sec. 199.7, be filed with the
appropriate CHAMPUS contractor no later than one year after the services
are provided. Unless the requirement is waived, failure to file a claim
within this deadline waives all rights to benefits for such services or
supplies.
(8) Double coverage and third party recoveries. CHAMPUS claims
involving double coverage or the possiblity that the United States can
recover all or a part of its expenses from a third party, are
specifically subject to the provisions of Sec. 199.8 or Sec. 199.12 of
this part as appropriate.
(9) Nonavailability Statements within a 40-mile catchment area. In
some geographic locations, it is necessary for CHAMPUS beneficiaries not
enrolled in TRICARE Prime to determine whether the required medical care
can be provided through an Uniformed Services facility. If the required
care cannot be provided, the hospital commander, or designee, will issue
a Nonavailability Statement (DD Form 1251). Except for emergencies, a
Nonavailability Statement should be issued before medical care is
obtained from a civilian source. Failure to secure such a statement may
waive the beneficiary's rights to benefits under CHAMPUS.
(i) Rules applicable to issuance of Nonavailability Statement (NAS)
(DD Form 1251).
(A) The ASD(HA) is responsible for issuing rules and regulations
regarding Nonavailability Statements.
(B) For CHAMPUS beneficiaries who are not enrolled in TRICARE Prime,
an NAS is required for services in connection with non-emergency
inpatient hospital care and outpatient and inpatient maternity care if
such services are available at a facility of the Uniformed Services
located within a 40-mile radius of the residence of the beneficiary,
except that an NAS is not required for services otherwise available at a
facility of the Uniformed Services located within a 40-mile radius of
the beneficiary's residence when another insurance plan or program
provides the beneficiary primary coverage for the services. For
maternity care, an NAS is required for services related to outpatient
prenatal, outpatient or inpatient delivery, and outpatient post-partum
care subsequent to the visit that confirms the pregnancy. The
requirement for an NAS does not apply to beneficiaries enrolled in
TRICARE Prime, even when those beneficiaries use the point-of-service
option under Sec. 199.17(n)(3).
(C) In addition to NAS requirements set forth in paragraph (a)(9) of
this section, additional NAS requirements are established pursuant to
paragraph (a)(10) of this section in connection with highly specialized
care in national or 200-mile catchment areas of military or civilian STS
facilities.
(ii) Beneficiary responsibility. A CHAMPUS beneficiary who is not
enrolled in TRICARE Prime is responsible for securing information
whether or not he or she resides in a geographic area that requires
obtaining a Nonavailability Statement. Information concerning current
rules and regulations may be obtained from the Offices of the Army,
Navy, and Air Force Surgeons General; or a representative of the TRICARE
managed care support contractor's staff, or the Director, OCHAMPUS.
(iii) Rules in effect at time civilian medical care is provided
apply. The applicable rules and regulations regarding Nonavailability
Statements in effect at the time the civilian care is rendered apply in
determining whether a Nonavailability Statement is required.
(iv) Nonavailability Statement (DD Form 1251) must be filed with
applicable claim. When a claim is submitted for CHAMPUS benefits that
includes services for which a Nonavailability Statement was issued, a
valid Nonavailability Statement authorization must be on DEERS.
[[Page 96]]
(v) Nonavailability Statement (NAS) and Claims Adjudication. A NAS
is valid for the adjudication of CHAMPUS claims for all related care
otherwise authorized by this part which is received from a civilian
source while the beneficiary resided within the Uniformed Service
facility catchment area which issued the NAS.
(vi) In the case of any service subject to an NAS requirement under
paragraph (a)(9) of this section and also subject to a preadmission (or
other pre-service) authorization requirement under Sec. 199.4 or Sec.
199.15, the administrative processes for the NAS and pre-service
authorization may be combined.
(10) Nonavailability Statements in national or 200-mile catchment
areas for highly specialized care available in selected military or
civilian Specialized Treatment Service Facilities--(i) Specialized
Treatment Service Facilities. STS Facilities may be designated for
certain high cost, high technology procedures. The purpose of such
designations is to concentrate patient referrals for certain highly
specialized procedures which are of relatively low incidence and/or
relatively high per-case cost and which require patient concentration to
permit resource investment and enhance the effectiveness of quality
assurance efforts.
(ii) Designation. Selected military treatment facilities and
civilian facilities will be designated by the Assistant Secretary of
Defense for Health Affairs as STS Facilities for certain procedures.
These designations will be based on the highly specialized capabilities
of those selected facilities. For each STS designation for which NASs in
national or 200-mile catchment areas will be required, there shall be a
determination that total government costs associated with providing the
service under the Specialized Treatment Services program will in the
aggregate be less than the total government cost of that service under
the normal operation of CHAMPUS. There shall also be a determination
that the Specialized Treatment Services Facility meets a standard of
excellence in quality comparable to that prevailing in other highly
specialized medical centers in the nation or region that provide the
services involved.
(iii) Organ transplants and similar procedures. For organ
transplants and procedures of similar extraordinary specialization,
military or civilian STS Facilities may be designated for a nationwide
catchment area, covering all 50 states, the District of Columbia and
Puerto Rico (or, alternatively, for any portion of such a nationwide
area).
(iv) Other highly specialized procedures. For other highly
specialized procedures, military or civilian STS Facilities will be
designated for catchment areas of up to approximately 200 miles radius.
The exact geographical area covered for each STS Facility will be
identified by reference to State and local governmental jurisdictions,
zip code groups or other method to describe an area within an
approximate radius of 200 miles from the facility. In paragraph (a)(10)
of this section, this catchment area is referred to as a ``200-mile
catchment area''.
(v) NAS requirement. For procedures subject to a nationwide
catchment area NAS requirement under paragraph (a)(10)(iii) of this
section or a 200-mile catchment area NAS requirement under paragraph
(a)(10)(iv) of this section, CHAMPUS cost sharing is not allowed unless
the services are obtained from a designated civilian Specialized
Treatment Services program (as authorized) or an NAS has been issued.
This rule is subject to the exceptions set forth in paragraph
(a)(10)(vi) of this section. This NAS requirement is a general
requirement of the CHAMPUS program.
(vi) Exceptions. Nationwide catchment areas NASs and 200-mile
catchment area NASs are not required in any of the following
circumstances:
(A) An emergency.
(B) When another insurance plan or program provides the beneficiary
primary coverage for the services.
(C) A case-by-case waiver is granted based on a medical judgment
made by the commander of the STS Facility (or other person designated
for this purpose) that, although the care is available at the facility,
it would be medically inappropriate because of a delay
[[Page 97]]
in the treatment or other special reason to require that the STS
Facility be used; or
(D) A case-by-case waiver is granted by the commander of the STS
Facility (or other person designated for this purpose) that, although
the care is available at the facility, use of the facility would impose
exceptional hardship on the beneficiary or the beneficiary's family.
(E) The beneficiary is enrolled in TRICARE Prime.
(vii) Waiver process. A process shall be established for
beneficiaries to request a case-by-case waiver under paragraphs
(a)(10)(vi) (C) and (D) of this section. This process shall include:
(A) An opportunity for the beneficiary (and/or the beneficiary's
physician) to submit information the beneficiary believes justifies a
waiver.
(B) A written decision from a person designated for the purpose on
the request for a waiver, including a statement of the reasons for the
decision.
(C) An opportunity for the beneficiary to appeal an unfavorable
decision to a designated appeal authority not involved in the initial
decision; and
(D) A written decision on the appeal, including a statement of the
reasons for the decision.
(viii) Notice. The Assistant Secretary of Defense for Health Affairs
will annually publish in the Federal Register a notice of all military
and civilian STS Facilities, including a listing of the several
procedures subject to nationwide catchment area NASs and the highly
specialized procedures subject to 200-mile catchment area NASs.
(ix) Specialized procedures. Highly specialized procedures that may
be established as subject to 200-mile catchment area NASs are limited
to:
(A) Medical and surgical diagnoses requiring inpatient hospital
treatment of an unusually intensive nature, documented by a DRG-based
payment system weight (pursuant to Sec. 199.14(a)(1)) for a single DRG
or an aggregated DRG weight for a category of DRGs of at least 2.0
(i.e., treatment is at least two times as intensive as the average
CHAMPUS inpatient case).
(B) Diagnostic or therapeutic services, including outpatient
services, related to such inpatient categories of treatment.
(C) Other procedures which require highly specialized equipment the
cost of which exceeds $1,000,000 (e.g., lithotriptor, positron emission
tomography equipment) and such equipment is underutilized in the area;
and
(D) Other comparable highly specialized procedures as determined by
the Assistant Secretary of Defense for Health Affairs.
(x) Quality standards. Any facility designated as a military or
civilian STS Facility under paragraph (a)(10) of this section shall be
required to meet quality standards established by the Assistant
Secretary of Defense for Health Affairs. In the development of such
standards, the Assistant Secretary shall consult with relevant medical
specialty societies and other appropriate parties. To the extent
feasible, quality standards shall be based on nationally recognized
standards.
(xi) NAS procedures. The provisions of paragraphs (a)(9)(ii) through
(a)(9)(v) of this section regarding procedures applicable to NASs shall
apply to expanded catchment area NASs required by paragraph (a)(10) of
this section.
(xii) Travel and lodging expenses. In accordance with guidelines
issued by the Assistant Secretary of Defense for Health Affairs, certain
travel and lodging expenses associated with services under the
Specialized Treatment Services program may be fully or partially
reimbursed.
(xiii) Preference for military facility use. In any case in which
services subject to an NAS requirement under paragraph (a)(10) of this
section are available in both a military STS Facility and from a
civilian STS Facility, the military Facility must be used unless use of
the civilian Facility is specifically authorized.
(11) Quality and Utilization Review Peer Review Organization
program. All benefits under the CHAMPUS program are subject to review
under the CHAMPUS Quality and Utilization Review Peer Review
Organization program pursuant to Sec. 199.15. (Utilization and quality
review of mental health
[[Page 98]]
services are also part of the Peer Review Organization program, and are
addressed in paragraph (a)(12) of this section.)
(12) Utilization review, quality assurance and reauthorization for
inpatient mental health services and partial hospitalization. (i) In
general. The Director, OCHAMPUS shall provide, either directly or
through contract, a program of utilization and quality review for all
mental health care services. Among other things, this program shall
include mandatory preadmission authorization before nonemergency
inpatient mental health services may be provided and mandatory approval
of continuation of inpatient services within 72 hours of emergency
admissions. This program shall also include requirements for other
pretreatment authorization procedures, concurrent review of continuing
inpatient and partial hospitalization, retrospective review, and other
such procedures as determined appropriate by the Director, OCHAMPUS. The
provisions of paragraph (h) of this section and Sec. 199.15(f) shall
apply to this program. The Director, OCHAMPUS, shall establish, pursuant
to that Sec. 199.15(f), procedures substantially comparable to
requirements of paragraph (h) of this section and Sec. 199.15. If the
utilization and quality review program for mental health care services
is provided by contract, the contractor(s) need not be the same
contractor(s) as are engaged under Sec. 199.15 in connection with the
review of other services.
(ii) Preadmission authorization. (A) This section generally requires
preadmission authorization for all nonemergency inpatient mental health
services and prompt continued stay authorization after emergency
admissions. It also requires preadmission authorization for all
admissions to a partial hospitalization program, without exception, as
the concept of an emergency admission does not pertain to a partial
hospitalization level of care. This section generally requires
preadmission authorization for all nonemergency inpatient mental health
services and prompt continued stay authorization after emergency
admissions. Institutional services for which payment would otherwise be
authorized, but which were provided without compliance with preadmission
authorization requirements, do not qualify for the same payment that
would be provided if the preadmission requirements had been met.
(B) In cases of noncompliance with preauthorization requirements, a
payment reduction shall be made in accordance with Sec.
199.15(b)(4)(iii).
(C) For purposes of paragraph (a)(12)(ii)(B) of this section, a day
of services without the appropriate preauthorization is any day of
services provided prior to:
(1) The receipt of an authorization; or
(2) The effective date of an authorization subsequently received.
(D) Services for which payment is disallowed under paragraph
(a)(12)(ii)(B) of this section may not be billed to the patient (or the
patient's family).
(13) Implementing instructions. The Director, OCHAMPUS shall issue
policies, procedures, instructions, guidelines, standards and/or
criteria to implement this section.
(b) Institutional benefits. (1) General. Services and supplies
provided by an institutional provider authorized as set forth in Sec.
199.6 may be cost-shared only when such services or supplies: are
otherwise authorized by this part; are medically necessary; are ordered,
directed, prescribed, or delivered by an OCHAMPUS-authorized individual
professional provider as set forth in Sec. 199.6 or by an employee of
the authorized institutional provider who is otherwise eligible to be a
CHAMPUS authorized individual professional provider; are delivered in
accordance with generally accepted norms for clinical practice in the
United States; meet established quality standards; and comply with
applicable definitions, conditions, limitations, exceptions, or
exclusions as otherwise set forth in this part.
(i) Billing practices. To be considered for benefits under Sec.
199.4(b), covered services and supplies must be provided and billed for
by a hospital or other authorized institutional provider. Such billings
must be fully itemized and sufficiently descriptive to permit
[[Page 99]]
CHAMPUS to determine whether benefits are authorized by this part.
Depending on the individual circumstances, teaching physician services
may be considered an institutional benefit in accordance with Sec.
199.4(b) or a professional benefit under Sec. 199.4(c). See paragraph
(c)(3)(xiii) of this section for the CHAMPUS requirements regarding
teaching physicians. In the case of continuous care, claims shall be
submitted to the appropriate CHAMPUS fiscal intermediary at least every
30 days either by the beneficiary or sponsor or, on a participating
basis, directly by the facility on behalf of the beneficiary (refer to
Sec. 199.7).
(ii) Successive inpatient admissions. Successive inpatient
admissions shall be deemed one inpatient confinement for the purpose of
computing the active duty dependent's share of the inpatient
institutional charges, provided not more than 60 days have elapsed
between the successive admissions, except that successive inpatient
admissions related to a single maternity episode shall be considered one
confinement, regardless of the number of days between admissions. For
the purpose of applying benefits, successive admissions will be
determined separately for maternity admissions and admissions related to
an accidental injury (refer to Sec. 199.4(f)).
(iii) Related services and supplies. Covered services and supplies
must be rendered in connection with and related directly to a covered
diagnosis or definitive set of symptoms requiring otherwise authorized
medically necessary treatment.
(iv) Inpatient, appropriate level required. For purposes of
inpatient care, the level of institutional care for which Basic Program
benefits may be extended must be at the appropriate level required to
provide the medically necessary treatment except for patients requiring
skilled nursing facility care. For patients for whom skilled nursing
facility care is adequate, but is not available in the general locality,
benefits may be continued in the higher level care facility. General
locality means an area that includes all the skilled nursing facilities
within 50 miles of the higher level facility, unless the higher level
facility can demonstrate that the skilled nursing facilities are
inaccessible to its patients. The decision as to whether a skilled
nursing facility is within the higher level facility's general locality,
or the skilled nursing facility is inaccessible to the higher level
facility's patients shall be a CHAMPUS contractor initial determination
for the purposes of appeal under Sec. 199.10 of this part. CHAMPUS
institutional benefit payments shall be limited to the allowable cost
that would have been incurred in the skilled nursing facility, as
determined by the Director, OCHAMPUS, or a designee. If it is determined
that the institutional care can be provided reasonably in the home
setting, no CHAMPUS institutional benefits are payable.
(v) General or special education not covered. Services and supplies
related to the provision of either regular or special education
generally are not covered. Such exclusion applies whether a separate
charge is made for education or whether it is included as a part of an
overall combined daily charge of an institution. In the latter instance,
that portion of the overall combined daily charge related to education
must be determined, based on the allowable costs of the educational
component, and deleted from the institution's charges before CHAMPUS
benefits can be extended. The only exception is when appropriate
education is not available from or not payable by the cognizant public
entity. Each case must be referred to the Director, OCHAMPUS, or a
designee, for review and a determination of the applicability of CHAMPUS
benefits.
(2) Covered hospital services and supplies--(i) Room and board.
Includes special diets, laundry services, and other general housekeeping
support services (inpatient only).
(ii) General staff nursing services.
(iii) ICU. Includes specialized units, such as for respiratory
conditions, cardiac surgery, coronary care, burn care, or neurosurgery
(inpatient only).
(iv) Operating room, recovery room. Operating room and recovery
room, including other special treatment rooms and equipment, and
hyperbaric chamber.
[[Page 100]]
(v) Drugs and medicines. Includes sera, biologicals, and
pharmaceutical preparations (including insulin) that are listed in the
official formularies of the institution or facility at the time of use.
(To be considered as an inpatient supply, drugs and medicines must be
consumed during the specific period the beneficiary is a registered
inpatient. Drugs and medicines prescribed for use outside the hospital,
even though prescribed and obtained while still a registered inpatient,
will be considered outpatient supplies and the provisions of paragraph
(d) of this section will apply.)
(vi) Durable medical equipment, medical supplies, and dressings.
Includes durable medical equipment, medical supplies essential to a
surgical procedure (such as artificial heart valve and artificial ball
and socket joint), sterile trays, casts, and orthopedic hardware. Use of
durable medical equipment is restricted to an inpatient basis.
Note: If durable medical equipment is to be used on an outpatient
basis or continued in outpatient status after use as an inpatient,
benefits will be provided as set forth in paragraph (d) of this section
and cost-sharing will be on an outpatient basis (refer to paragraph
(a)(4) of this section).
(vii) Diagnostic services. Includes clinical laboratory
examinations, x-ray examinations, pathological examinations, and machine
tests that produce hard-copy results. Also includes CT scanning under
certain limited conditions.
(viii) Anesthesia. Includes both the anesthetic agent and its
administration.
(ix) Blood. Includes blood, plasma and its derivatives, including
equipment and supplies, and its administration.
(x) Radiation therapy. Includes radioisotopes.
(xi) Physical therapy.
(xii) Oxygen. Includes equipment for its administration.
(xiii) Intravenous injections. Includes solution.
(xiv) Shock therapy.
(xv) Chemotherapy.
(xvi) Renal and peritoneal dialysis.
(xvii) Psychological evaluation tests. When required by the
diagnosis.
(xviii) Other medical services. Includes such other medical services
as may be authorized by the Director, OCHAMPUS, or a designee, provided
they are related directly to the diagnosis or definitive set of symptoms
and rendered by a member of the institution's medical or professional
staff (either salaried or contractual) and billed for by the hospital.
(3) Covered services and supplies provided by special medical
treatment institutions or facilities, other than hospitals or RTCs--(i)
Room and board. Includes special diets, laundry services, and other
general housekeeping support services (inpatient only).
(ii) General staff nursing services.
(iii) Drugs and medicines. Includes sera, biologicals, and
pharmaceutical preparations (including insulin) that are listed in the
official formularies of the institution or facility at the time of use.
(To be considered as an inpatient supply, drugs and medicines must be
consumed during the specific period the beneficiary is a registered
inpatient. Drugs and medicines prescribed for use outside the authorized
institutional provider, even though prescribed and obtained while still
a registered inpatient, will be considered outpatient supplies and the
provisions of paragraph (d) of this section will apply.).
(iv) Durable medical equipment, medical supplies, and dressings.
Includes durable medical equipment, sterile trays, casts, orthopedic
hardware and dressings. Use of durable medical equipment is restricted
to an inpatent basis.
Note: If the durable medical equipment is to be used on an
outpatient basis or continued in outpatient status after use as an
inpatient, benefits will be provided as set forth in paragraph (d) of
this section, and cost-sharing will be on an outpatient basis (refer to
paragraph (a)(4) of this section).
(v) Diagnostic services. Includes clinical laboratory examinations,
x-ray examinations, pathological examination, and machine tests that
produce hard-copy results.
(vi) Blood. Includes blood, plasma and its derivatives, including
equipment and supplies, and its administration.
(vii) Physical therapy.
(viii) Oxygen. Includes equipment for its administration.
(ix) Intravenous injections. Includes solution.
(x) Shock therapy.
(xi) Chemotherapy.
[[Page 101]]
(xii) Psychological evaluation tests. When required by the
diagnosis.
(xiii) Renal and peritoneal dialysis.
(xiv) Other medical services. Other medical services may be
authorized by the Director, OCHAMPUS, or a designee, provided they are
related directly to the diagnosis or definitive set of symptoms and
rendered by a member of the institution's medical or professional staff
(either salaried or contractual) and billed for by the authorized
institutional provider of care.
(4) Services and supplies provided by RTCs--(i) Room and board.
Includes use of residential facilities such as food service (including
special diets), laundry services, supervised reasonable recreational and
social activity services, and other general services as considered
appropriate by the Director, OCHAMPUS, or a designee.
(ii) Patient assessment. Includes the assessment of each child or
adolescent accepted by the RTC, including clinical consideration of each
of his or her fundamental needs, that is, physical, psychological,
chronological age, developmental level, family, educational, social,
environmental, and recreational.
(iii) Diagnostic services. Includes clinical laboratory
examinations, x-ray examinations, pathological examinations, and machine
tests that produce hard-copy results.
(iv) Psychological evaluation tests.
(v) Treatment of mental disorders. Services and supplies that are
medically or psychologically necessary to diagnose and treat the mental
disorder for which the patient was admitted to the RTC. Covered services
and requirements for qualifications of providers are as listed in
paragraph (c)(3)(ix) of this section.
(vi) Other necessary medical care. Emergency medical services or
other authorized medical care may be rendered by the RTC provided it is
professionally capable of rendering such services and meets standards
required by the Director, OCHAMPUS. It is intended, however, that
CHAMPUS payments to an RTC should primarily cover those services and
supplies directly related to the treatment of mental disorders that
require residential care.
(vii) Criteria for determining medical or psychological necessity.
In determining the medical or psychological necessity of services and
supplies provided by RTCs, the evaluation conducted by the Director,
OCHAMPUS (or designee) shall consider the appropriate level of care for
the patient, the intensity of services required by the patient, and the
availability of that care. In addition to the criteria set forth in this
paragraph (b)(4) of this section, additional evaluation standards,
consistent with such criteria, may be adopted by the Director, OCHAMPUS
(or designee). RTC services and supplies shall not be considered
medically or psychologically necessary unless, at a minimum, all the
following criteria are clinically determined in the evaluation to be
fully met:
(A) Patient has a diagnosable psychiatric disorder.
(B) Patient exhibits patterns of disruptive behavior with evidence
of disturbances in family functioning or social relationships and
persistent psychological and/or emotional disturbances.
(C) RTC services involve active clinical treatment under an
individualized treatment plan that provides for:
(1) Specific level of care, and measurable goals/objectives relevant
to each of the problems identified;
(2) Skilled interventions by qualified mental health professionals
to assist the patient and/or family;
(3) Time frames for achieving proposed outcomes; and
(4) Evaluation of treatment progress to include timely reviews and
updates as appropriate of the patient's treatment plan that reflects
alterations in the treatment regimen, the measurable goals/objectives,
and the level of care required for each of the patient's problems, and
explanations of any failure to achieve the treatment goals/objectives.
(D) Unless therapeutically contraindicated, the family and/or
guardian must actively participate in the continuing care of the patient
either through direct involvement at the facility or geographically
distant family therapy. (In the latter case, the treatment center must
document that there has been collaboration with the family and/or
guardian in all reviews.)
[[Page 102]]
(viii) Preauthorization requirement. (A) All admissions to RTC care
are elective and must be certified as medically/psychologically
necessary prior to admission. The criteria for preauthorization shall be
those set forth in paragraph (b)(4)(vii) of this section. In applying
those criteria in the context of preadmission authorization review,
special emphasis is placed on the development of a specific diagnosis/
treatment plan, consistent with those criteria and reasonably expected
to be effective, for that individual patient.
(B) The timetable for development of the individualized treatment
plan shall be as follows:
(1) The plan must be under development at the time of the admission.
(2) A preliminary treatment plan must be established within 24 hours
of the admission.
(3) A master treatment plan must be established within ten calendar
days of the admission.
(C) The elements of the individualized treatment plan must include:
(1) The diagnostic evaluation that establishes the necessity for the
admission;
(2) An assessment regarding the inappropriateness of services at a
less intensive level of care;
(3) A comprehensive, biopsychosocial assessment and diagnostic
formulation;
(4) A specific individualized treatment plan that integrates
measurable goals/objectives and their required level of care for each of
the patient's problems that are a focus of treatment;
(5) A specific plan for involvement of family members, unless
therapeutically contraindicated; and
(6) A discharge plan, including an objective of referring the
patient to further services, if needed, at less intensive levels of care
within the benefit limited period.
(D) Preauthorization requests should be made not fewer than two
business days prior to the planned admission. In general, the decision
regarding preauthorization shall be made within one business day of
receipt of a request for preauthorization, and shall be followed with
written confirmation. Preauthorizations are valid for the period of
time, appropriate to the type of care involved, stated when the
preauthorization is issued. In general, preauthorizations are valid for
30 days.
(ix) Concurrent review. Concurrent review of the necessity for
continued stay will be conducted no less frequently than every 30 days.
The criteria for concurrent review shall be those set forth in paragraph
(b)(4)(vii) of this section. In applying those criteria in the context
of concurrent review, special emphasis is placed on evaluating the
progress being made in the active individualized clinical treatment
being provided and on developing appropriate discharge plans.
(5) Extent of institutional benefits--(i) Inpatient room
accommodations--(A) Semiprivate. The allowable costs for room and board
furnished an individual patient are payable for semiprivate
accommodations in a hospital or other authorized institution, subject to
appropriate cost-sharing provisions (refer to paragraph (f) of this
section). A semiprivate accommodation is a room containing at least two
beds. Therefore, if a room publicly is designated by the institution as
a semiprivate accommodation and contains multiple beds, it qualifies as
semiprivate for the purpose of CHAMPUS.
(B) Private. A room with one bed that is designated as a private
room by the hospital or other authorized institutional provider. The
allowable cost of a private room accommodation is covered only under the
following conditions:
(1) When its use is required medically and when the attending
physician certifies that a private room is necessary medically for the
proper care and treatment of a patient; or
(2) When a patient's medical condition requires isolation; or
(3) When a patient (in need of immediate inpatient care but not
requiring a private room) is admitted to a hospital or other authorized
institution that has semiprivate accommodations, but at the time of
admission, such accommodations are occupied; or
(4) When a patient is admitted to an acute care hospital (general or
special) without semiprivate rooms.
(C) Duration of private room stay. The allowable cost of private
accommodations is covered under the circumstances described in paragraph
[[Page 103]]
(b)(5)(i)(B) of this section until the patient's condition no longer
requires the private room for medical reasons or medical isolation; or,
in the case of the patient not requiring a private room, when a
semiprivate accommodation becomes available; or, in the case of an acute
care hospital (general or special) which does not have semiprivate
rooms, for the duration of an otherwise covered inpatient stay.
(D) Hospital (except an acute care hospital, general or special) or
other authorized institutional provider without semiprivate
accommodations. When a beneficiary is admitted to a hospital (except an
acute care hospital, general or special) or other institution that has
no semiprivate accommodations, for any inpatient day when the patient
qualifies for use of a private room (as set forth in paragraphs
(b)(5)(i)(B) (1) and (2) of this section) the allowable cost of private
accommodations is covered. For any inpatient day in such a hospital or
other authorized institution when the patient does not require medically
the private room, the allowable cost of semiprivate accommodations is
covered, such allowable costs to be determined by the Director,
OCHAMPUS, or a designee.
(ii) General staff nursing services. General staff nursing services
cover all nursing care (other than that provided by private duty nurses)
including, but not limited to, general duty nursing, emergency room
nursing, recovery room nursing, intensive nursing care, and group
nursing arrangements. Only nursing services provided by nursing
personnel on the payroll of the hospital or other authorized institution
are eligible under paragraph (b) of this section. If a nurse who is not
on the payroll of the hospital or other authorized institution is called
in specifically to care for a single patient (individual nursing) or
more than one patient (group nursing), whether the patient is billed for
the nursing services directly or through the hospital or other
institution, such services constitute private duty (special) nursing
services and are not eligible for benefits under this paragraph (the
provisions of paragraph (c)(2)(xv) of this section would apply).
(iii) ICU. An ICU is a special segregated unit of a hospital in
which patients are concentrated, by reason of serious illness, usually
without regard to diagnosis. Special lifesaving techniques and equipment
are available regularly and immediately within the unit, and patients
are under continuous observation by a nursing staff specially trained
and selected for the care of this type of patient. The unit is
maintained on a continuing, rather than an intermittent or temporary,
basis. It is not a postoperative recovery room or a postanesthesia room.
In some large or highly specialized hospitals, the ICUs may be refined
further for special purposes, such as for respiratory conditions,
cardiac surgery, coronary care, burn care, or neurosurgery. For purposes
of CHAMPUS, these specialized units would be considered ICUs if they
otherwise conformed to the definition of an ICU.
(iv) Treatment rooms. Standard treatment rooms include emergency
rooms, operating rooms, recovery rooms, special treatment rooms, and
hyperbaric chambers and all related necessary medical staff and
equipment. To be recognized for purposes of CHAMPUS, treatment rooms
must be so designated and maintained by the hospital or other authorized
institutions on a continuing basis. A treatment room set up on an
intermittent or temporary basis would not be so recognized.
(v) Drugs and medicines. Drugs and medicines are included as a
supply of a hospital or other authorized institution only under the
following conditions:
(A) They represent a cost to the facility rendering treatment;
(B) They are furnished to a patient receiving treatment, and are
related directly to that treatment; and
(C) They are ordinarily furnished by the facility for the care and
treatment of inpatients.
(vi) Durable medical equipment, medical supplies, and dressings.
Durable medical equipment, medical supplies, and dressings are included
as a supply of a hospital or other authorized institution only under the
following conditions:
(A) If ordinarily furnished by the facility for the care and
treatment of patients; and
[[Page 104]]
(B) If specifically related to, and in connection with, the
condition for which the patient is being treated; and
(C) If ordinarily furnished to a patient for use in the hospital or
other authorized institution (except in the case of a temporary or
disposable item); and
(D) Use of durable medical equipment is limited to those items
provided while the patient is an inpatient. If such equipment is
provided for use on an outpatient basis, the provisions of paragraph (d)
of this section apply.
(vii) Transitional use items. Under certain circumstances, a
temporary or disposable item may be provided for use beyond an inpatient
stay, when such item is necessary medically to permit or facilitate the
patient's departure from the hospital or other authorized institution,
or which may be required until such time as the patient can obtain a
continuing supply; or it would be unreasonable or impossible from a
medical standpoint to discontinue the patient's use of the item at the
time of termination of his or her stay as an inpatient.
(viii) Anesthetics and oxygen. Anesthetics and oxygen and their
administration are considered a service or supply if furnished by the
hospital or other authorized institution, or by others under
arrangements made by the facility under which the billing for such
services is made through the facility.
(6) Inpatient mental health services. Inpatient mental health
services are those services furnished by institutional and professional
providers for treatment of a nervous or mental disorder (as defined in
Sec. 199.2) to a patient admitted to a CHAMPUS-authorized acute care
general hospital; a psychiatric hospital; or, unless otherwise exempted,
a special institutional provider.
(i) Criteria for determining medical or psychological necessity. In
determining the medical or psychological necessity of acute inpatient
mental health services, the evaluation conducted by the Director,
OCHAMPUS (or designee) shall consider the appropriate level of care for
the patient, the intensity of services required by the patient, and the
availability of that care. The purpose of such acute inpatient care is
to stabilize a life-threatening or severely disabling condition within
the context of a brief, intensive model of inpatient care in order to
permit management of the patient's condition at a less intensive level
of care. Such care is appropriate only if the patient requires services
of an intensity and nature that are generally recognized as being
effectively and safely provided only in an acute inpatient hospital
setting. In addition to the criteria set forth in this paragraph (b)(6)
of this section, additional evaluation standards, consistent with such
criteria, may be adopted by the Director, OCHAMPUS (or designee). Acute
inpatient care shall not be considered necessary unless the patient
needs to be observed and assessed on a 24-hour basis by skilled nursing
staff, and/or requires continued intervention by a multidisciplinary
treatment team; and in addition, at least one of the following criteria
is determined to be met:
(A) Patient poses a serious risk of harm to self and/or others.
(B) Patient is in need of high dosage, intensive medication or
somatic and/or psychological treatment, with potentially serious side
effects.
(C) Patient has acute disturbances of mood, behavior, or thinking.
(ii) Emergency admissions. Admission to an acute inpatient hospital
setting may be on an emergency or on a non-emergency basis. In order for
an admission to qualify as an emergency, the following criteria, in
addition to those in paragraph (b)(6)(i) of this section, must be met:
(A) The patient must be at immediate risk of serious harm to self
and or others based on a psychiatric evaluation performed by a physician
(or other qualified mental health professional with hospital admission
authority); and
(B) The patient requires immediate continuous skilled observation
and treatment at the acute psychiatric level of care.
(iii) Preauthorization requirements. (A) All non-emergency
admissions to an acute inpatient hospital level of care must be
authorized prior to the admission. The criteria for preauthorization
shall be those set forth in paragraph
[[Page 105]]
(b)(6)(i) of this section. In applying those criteria in the context of
preauthorization review, special emphasis is placed on the development
of a specific individualized treatment plan, consistent with those
criteria and reasonably expected to be effective, for that individual
patient.
(B) The timetable for development of the individualized treatment
plan shall be as follows:
(1) The development of the plan must begin immediately upon
admission.
(2) A preliminary treatment plan must be established within 24 hours
of the admission.
(3) A master treatment plan must be established within five calendar
days of the admission.
(C) The elements of the individualized treatment plan must include:
(1) The diagnostic evaluation that establishes the necessity for the
admission;
(2) An assessment regarding the inappropriateness of services at a
less intensive level of care;
(3) A comprehensive biopsychosocial assessment and diagnostic
formulation;
(4) A specific individualized treatment plan that integrates
measurable goals/objectives and their required level of care for each of
the patient's problems that are a focus of treatment;
(5) A specific plan for involvement of family members, unless
therapeutically contraindicated; and
(6) A discharge plan, including an objective of referring the
patient to further services, if needed, at less intensive levels of care
within the benefit limit period.
(D) The request for preauthorization must be received by the
reviewer designated by the Director, OCHAMPUS prior to the planned
admission. In general, the decision regarding preauthorization shall be
made within one business day of receipt of a request for
preauthorization, and shall be followed with written confirmation. In
the case of an authorization issued after an admission resulting from
approval of a request made prior to the admission, the effective date of
the certification shall be the date of the receipt of the request.
However, if the request on which the approved authorization is based was
made after the admission (and the case was not an emergency admission),
the effective date of the authorization shall be the date of approval.
(E) Authorization prior to admission is not required in the case of
a psychiatric emergency requiring an inpatient acute level of care, but
authorization for a continuation of services must be obtained promptly.
Admissions resulting from a bona fide psychiatric emergency should be
reported within 24 hours of the admission or the next business day after
the admission, but must be reported to the Director, OCHAMPUS or a
designee, within 72 hours of the admission. In the case of an emergency
admission authorization resulting from approval of a request made within
72 hours of the admission, the effective date of the authorization shall
be the date of the admission. However, if it is determined that the case
was not a bona fide psychiatric emergency admission (but the admission
can be authorized as medically or psychologically necessary), the
effective date of the authorization shall be the date of the receipt of
the request.
(iv) Concurrent review. Concurrent review of the necessity for
continued stay will be conducted. The criteria for concurrent review
shall be those set forth in paragraph (b)(6)(i) of this section. In
applying those criteria in the context of concurrent review, special
emphasis is placed on evaluating the progress being made in the active
clinical treatment being provided and on developing/refining appropriate
discharge plans. In general, the decision regarding concurrent review
shall be made within one business day of the review, and shall be
followed with written confirmation.
(7) Emergency inpatient hospital services. In the case of a medical
emergency, benefits can be extended for medically necessary inpatient
services and supplies provided to a beneficiary by a hospital, including
hospitals that do not meet CHAMPUS standards or comply with the
provisions of title VI of the Civil Rights Act, or satisfy other
conditions herein set forth. In a medical emergency, medically necessary
inpatient services and supplies are those that are necessary to prevent
the death or serious impairment of the
[[Page 106]]
health of the patient, and that, because of the threat to the life or
health of the patient, necessitate, the use of the most accessible
hospital available and equipped to furnish such services. The
availability of benefits depends upon the following three separate
findings and continues only as long as the emergency exists, as
determined by medical review. If the case qualified as an emergency at
the time of admission to an unauthorized institutional provider and the
emergency subsequently is determined no longer to exist, benefits will
be extended up through the date of notice to the beneficiary and
provider that CHAMPUS benefits no longer are payable in that hospital.
(i) Existence of medical emergency. A determination that a medical
emergency existed with regard to the patient's condition;
(ii) Immediate admission required. A determination that the
condition causing the medical emergency required immediate admission to
a hospital to provide the emergency care; and
(iii) Closest hospital utilized. A determination that diagnosis or
treatment was received at the most accessible (closest) hospital
available and equipped to furnish the medically necessary care.
(8) RTC day limit. (i) With respect to mental health services
provided on or after October 1, 1991, benefits for residential treatment
are generally limited to 150 days in a fiscal year or 150 days in an
admission (not including days of care prior to October 1, 1991). The RTC
benefit limit is separate from the benefit limit for acute inpatient
mental health care.
(ii) Waiver of the RTC day limit. (A) There is a statutory
presumption against the appropriateness of residential treatment
services in excess of the 150 day limit. However, the Director,
OCHAMPUS, (or designee) may in special cases, after considering the
opinion of the peer review designated by the Director (involving a
health professional who is not a federal employee) confirming that
applicable criteria have been met, waive the RTC benefit limit in
paragraph (b)(8)(i) of this section and authorize payment for care
beyond that limit.
(B) The criteria for waiver shall be those set forth in paragraph
(b)(4)(vii) of this section. In applying those criteria to the context
of waiver request reviews, special emphasis is placed on assuring that
the record documents that:
(1) Active treatment has taken place for the past 150 days and
substantial progress has been made according to the plan of treatment.
(2) The progress made is insufficient, due to the complexity of the
illness, for the patient to be discharged to a less intensive level of
care.
(3) Specific evidence is presented to explain the factors which
interfered with treatment progress during the 150 days of RTC care.
(4) The waiver request includes specific timeframes and a specific
plan of treatment which will lead to discharge.
(C) Where family or social issues complicate transfer to a lower
level of intensity, the RTC is responsible for determining and arranging
the supportive and adjunctive resources required to permit appropriate
transfer. If the RTC fails adequately to meet this responsibility, the
existence of such family or social issues shall be an inadequate basis
for a waiver of the benefit limit.
(D) It is the responsibility of the patient's primary care provider
to establish, through actual documentation from the medical record and
other sources, that the conditions for waiver exist.
(iii) RTC day limits do not apply to services provided under the
Program for Persons with Disabilities (Sec. 199.5) or services provided
as partial hospitalization care.
(9) Acute care day limits. (i) With respect to mental health care
services provided on or after October 1, 1991, payment for inpatient
acute hospital care is, in general, statutorily limited as follows:
(A) Adults, aged 19 and over--30 days in a fiscal year or 30 days in
an admission (excluding days provided prior to October 1, 1991).
(B) Children and adolescents, aged 18 and under--45 days in a fiscal
year or 45 days in an admission (excluding days provided prior to
October 1, 1991).
[[Page 107]]
(ii) It is the patient's age at the time of admission that
determines the number of days available.
(iii) Waiver of the acute care day limits. (A) There is a statutory
presumption against the appropriateness of inpatient acute services in
excess of the day limits set forth in paragraph (b)(9)(i) of this
section. However, the Director, OCHAMPUS (or designee) may in special
cases, after considering the opinion of the peer review designated by
the Director (involving a health professional who is not a federal
employee) confirming that applicable criteria have been met, waive the
acute inpatient limits described in paragraph (b)(9)(i) of this section
and authorize payment for care beyond those limits.
(B) The criteria for waiver of the acute inpatient limit shall be
those set forth in paragraph (b)(6)(i) of this section. In applying
those criteria in the context of waiver request review, special emphasis
is placed on determining whether additional days of acute inpatient
mental health care are medically/psychologically necessary to complete
necessary elements of the treatment plan prior to implementing
appropriate discharge planning. A waiver may also be granted in cases in
which a patient exhibits well-documented new symptoms, maladaptive
behavior, or medical complications which have appeared in the inpatient
setting requiring a significant revision to the treatment plan.
(C) The clinician responsible for the patient's care is responsible
for documenting that a waiver criterion has been met and must establish
an estimated length of stay beyond the date of the inpatient limit.
There must be evidence of a coherent and specific plan for assessment,
intervention and reassessment that reasonably can be accomplished within
the time frame of the additional days of coverage requested under the
waiver provision.
(D) For patients in care at the time the inpatient limit is reached,
a waiver must be requested prior to the limit. For patients being
readmitted after having received 30 or 45 days in the fiscal year, the
waiver review will be conducted at the time of the preadmission
authorization.
(iv) Acute care day limits do not apply to services provided under
the Program for Persons with Disabilities (Sec. 199.5) or services
provided as partial hospitalization care.
(10) Psychiatric partial hospitalization services.
(i) In general. Partial hospitalization services are those services
furnished by a CHAMPUS-authorized partial hospitalization program and
authorized mental health providers for the active treatment of a mental
disorder. All services must follow a medical model and vest patient care
under the general direction of a licensed psychiatrist employed by the
partial hospitalization center to ensure medication and physical needs
of all the patients are considered. The primary or attending provider
must be a CHAMPUS authorized mental health provider, operating within
the scope of his/her license. These categories include physicians,
clinical psychologists, certified psychiatric nurse specialists,
clinical social workers, marriage and family counselors, pastoral
counselors and mental health counselors. Partial hospitalization
services are covered as a basic program benefit only if they are
provided in accordance with paragraph (b)(10) of this section.
(ii) Criteria for determining medical or psychological necessity of
psychiatric partial hospitalization services. Psychiatric partial
hospitalization services will be considered necessary only if all of the
following conditions are present:
(A) The patient is suffering significant impairment from a mental
disorder (as defined in Sec. 199.2) which interferes with age
appropriate functioning.
(B) The patient is unable to maintain himself or herself in the
community, with appropriate support, at a sufficient level of
functioning to permit an adequate course of therapy exclusively on an
outpatient basis (but is able, with appropriate support, to maintain a
basic level of functioning to permit partial hospitalization services
and presents no substantial imminent risk of harm to self or others).
(C) The patient is in need of crisis stabilization, treatment of
partially stabilized mental health disorders, or services as a
transition from an inpatient program.
[[Page 108]]
(D) The admission into the partial hospitalization program is based
on the development of an individualized diagnosis and treatment plan
expected to be effective for that patient and permit treatment at a less
intensive level.
(iii) Preauthorization and concurrent review requirements. All
preadmission authorization and concurrent review requirements and
procedures applicable to acute mental health inpatient hospital care in
paragraphs (a)(12) and (b) of this section are applicable to the partial
hospitalization program, except that the criteria for considering
medical or psychological necessity shall be those set forth in paragraph
(b)(10)(ii) of this section, and no emergency admissions will be
recognized.
(iv) Institutional benefits limited to 60 days. Benefits for
institutional services for partial hospitalization are limited to 60
treatment days (whether a full day or partial day program) in a fiscal
year or in an admission. This limit may be extended by waiver.
(v) Waiver of the 60-day partial hospitalization program limit. The
Director, OCHAMPUS (or designee) may, in special cases, waive the 60-day
partial hospitalization benefit and authorize payment for care beyond
the 60-day limit.
(A) the criteria for waiver are set forth in paragraph (b)(10)(ii)
of this section. In applying these criteria in the context of waiver
request review, special emphasis is placed on determining whether
additional days of partial hospitalization are medically/psychologically
necessary to complete essential elements of the treatment plan prior to
discharge. Consideration is also given in cases in which a patient
exhibits well-documented new symptoms or maladaptive behaviors which
have appeared in the partial hospitalization setting requiring
significant revisions to the treatment plan.
(B) The clinician responsible for the patient's care is responsible
for documenting the need for additional days and must establish an
estimated length of stay beyond the date of the 60-day limit. There must
be evidence of a coherent and specific plan for assessment, intervention
and reassessment that reasonably can be accomplished within the time
frame of the additional days of coverage requested under the waiver
provisions.
(C) For patients in care at the time the partial hospitalization
program limit is reached, a waiver must be requested prior to the limit.
For patients being preadmitted after having received 60 days in the
fiscal year, the waiver review will be conducted at the time of the
preadmission authorization.
(vi) Services and supplies. The following services and supplies are
included in the per diem rate approved for an authorized partial
hospitalization program:
(A) Board. Includes use of the partial hospital facilities such as
food service, supervised therapeutically constructed recreational and
social activities, and other general services as considered appropriate
by the Director, OCHAMPUS, or a designee.
(B) Patient assessment. Includes the assessment of each individual
accepted by the facility, and must, at a minimum, consist of a physical
examination; psychiatric examination; psychological assessment;
assessment of physiological, biological and cognitive processes;
developmental assessment; family history and assessment; social history
and assessment; educational or vocational history and assessment;
environmental assessment; and recreational/activities assessment.
Assessments conducted within 30 days prior to admission to a partial
program may be used if approved and deemed adequate to permit treatment
planning by the partial hospital program.
(C) Psychological testing.
(D) Treatment services. All services, supplies, equipment and space
necessary to fulfill the requirements of each patient's individualized
diagnosis and treatment plan (with the exception of the five
psychotherapy sessions per week which may be allowed separately for
individual or family psychotherapy based upon the provisions of
paragraph (b)(10)(vii) of this section). All mental health services must
be provided by a CHAMPUS authorized individual professional provider of
mental health services. [Exception: PHPs that employ individuals with
master's or doctoral level degrees in a mental health discipline who do
not meet the licensure,
[[Page 109]]
certification and experience requirements for a qualified mental health
provider but are actively working toward licensure or certification, may
provide services within the all-inclusive per diem rate but the
individual must work under the clinical supervision of a fully qualified
mental health provider employed by the PHP.]
(vii) Social services required. The facility must provide an active
social services component which assures the patient appropriate living
arrangements after treatment hours, transportation to and from the
facility, arrangement of community based support services, referral of
suspected child abuse to the appropriate state agencies, and effective
after care arrangements, at a minimum.
(viii) Educational services required. Programs treating children and
adolescents must ensure the provision of a state certified educational
component which assures that patients do not fall behind in educational
placement while receiving partial hospital treatment. CHAMPUS will not
fund the cost of educational services separately from the per diem rate.
The hours devoted to education do not count toward the therapeutic half
or full day program.
(ix) Family therapy required. The facility must ensure the provision
of an active family therapy treatment component which assures that each
patient and family participate at least weekly in family therapy
provided by the institution and rendered by a CHAMPUS authorized
individual professional provider of mental health services. There is no
acceptable substitute for family therapy. An exception to this
requirement may be granted on a case-by-case basis by the Director,
OCHAMPUS, or designee, only if family therapy is clinically
contraindicated.
(x) Professional mental health benefits limited. Professional mental
health benefits are limited to a maximum of one session (60 minutes
individual, 90 minutes family) per authorized treatment day not to
exceed five sessions in any calendar week. These may be billed
separately from the partial hospitalization per diem rate only when
rendered by an attending, CHAMPUS-authorized mental health professional
who is not an employee of, or under contract with, the partial
hospitalization program for purposes of providing clinical patient care.
(xi) Non-mental health related medical services. Separate billing
will be allowed for otherwise covered, non-mental health related medical
services.
(c) Professional services benefit--(1) General. Benefits may be
extended for those covered services described in paragraph (c) of this
section that are provided in accordance with good medical practice and
established standards of quality by physicians or other authorized
individual professional providers, as set forth in Sec. 199.6 of this
part. Such benefits are subject to all applicable definitions,
conditions, exceptions, limitations, or exclusions as maybe otherwise
set forth in this or other Sections of this part. Except as otherwise
specifically authorized, to be considered for benefits under paragraph
(c) of this section, the described services must be rendered by a
physician, or prescribed, ordered, and referred medically by a physician
to other authorized individual professional providers. Further, except
under specifically defined circumstances, there should be an attending
physician in any episode of care. (For example, certain services of a
clinical psychologist are exempt from this requirement. For these
exceptions, refer to Sec. 199.6.)
(i) Billing practices. To be considered for benefits under paragraph
(c) of this section, covered professional services must be performed
personally by the physician or other authorized individual professional
provider, who is other than a salaried or contractual staff member of a
hospital or other authorized institution, and who ordinarily and
customarily bills on a fee-for-service basis for professional services
rendered. Such billings must be itemized fully and be sufficiently
descriptive to permit CHAMPUS to determine whether benefits are
authorized by this part. See paragraph (c)(3)(xiii) of this section for
the requirements regarding the special circumstances for teaching
physicians. For continuing professional care, claims should be submitted
to the appropriate CHAMPUS fiscal intermediary at least every 30 days
either by the beneficiary or sponsor, or directly by the physician or
[[Page 110]]
other authorized individual professional provider on behalf of a
beneficiary (refer to Sec. 199.7).
(ii) Services must be related. Covered professional services must be
rendered in connection with and directly related to a covered diagnosis
or definitive set of symptoms requiring medically necessary treatment.
(2) Covered services of physicians and other authorized profession
providers.
(i) Surgery. Surgery means operative procedures, including related
preoperative and postoperative care; reduction of fractures and
dislocations; injection and needling procedures of the joints; laser
surgery of the eye; and the following procedures:
Bronchoscopy
Laryngoscopy
Thoracoscopy
Catheterization of the heart
Arteriograph thoracic lumbar
Esophagoscopy
Gastroscopy
Proctoscopy
Sigmoidoscopy
Peritoneoscopy
Cystoscopy
Colonscopy
Upper G.I. panendoscopy
Encephalograph
Myelography
Discography
Visualization of intracranial aneurysm by intracarotid injection of dye,
with exposure of carotid artery, unilateral
Ventriculography
Insufflation of uterus and fallopian tubes for determination of tubal
patency (Rubin's test of injection of radiopaque medium or for dilation)
Introduction of opaque media into the cranial arterial system,
preliminary to cerebral arteriography, or into vertebral and subclavian
systems
Intraspinal introduction of air preliminary to pneumoencephalography
Intraspinal introduction of opaque media preliminary to myelography
Intraventricular introduction of air preliminary to ventriculography
Note: The Director, OCHAMPUS, or a designee, shall determine such
additional procedures that may fall within the intent of this definition
of ``surgery.''
(ii) Surgical assistance.
(iii) Inpatient medical services.
(iv) Outpatient medical services.
(v) Psychiatric services.
(vi) Consultation services.
(vii) Anesthesia services.
(viii) Radiation therapy services.
(ix) X-ray services.
(x) Laboratory and pathological services.
(xi) Physical medicine services or physiatry services.
(xii) Maternity care.
(xiii) Well-child care.
(xiv) Other medical care. Other medical care includes, but is not
limited to, hemodialysis, inhalation therapy, shock therapy, and
chemotherapy. The Director, OCHAMPUS, or a designee, shall determine
those additional medical services for which benefits may be extended
under this paragraph.
Note: A separate professional charge for the oral administration of
approved antineoplastic drugs is not covered.
(xv) Private duty (special) nursing services.
(xvi) Routine eye examinations. Coverage for routine eye
examinations is limited to dependents of active duty members, to one
examination per calendar year per person, and to services rendered on or
after October 1, 1984, except as provided under paragraph (c)(3)(xi) of
this section.
(3) Extent of professional benefits--
(i) Multiple Surgery. In cases of multiple surgical procedures
performed during the same operative session, benefits shall be extended
as follows:
(A) One hundred (100) percent of the CHAMPUS-determined allowable
charge for the major surgical procedure (the procedure for which the
greatest amount is payable under the applicable reimbursement method);
and
(B) Fifty (50) percent of the CHAMPUS-determined allowable charge
for each of the other surgical procedures;
(C) Except that:
(1) If the multiple surgical procedures involve the fingers or toes,
benefits for the first surgical procedure shall be at one hundred (100)
percent of the CHAMPUS-determined allowable charge; the second procedure
at fifty (50) percent; and the third and subsequent procedures at
twenty-five (25) percent.
(2) If the multiple surgical procedures include an incidental
procedure, no benefits shall be allowed for the incidental procedure.
[[Page 111]]
(3) If the multiple surgical procedures involve specific procedures
identified by the Director, OCHAMPUS, benefits shall be limited as set
forth in CHAMPUS instructions.
(ii) Different types of inpatient care, concurrent. If a beneficiary
receives inpatient medical care during the same admission in which he or
she also receives surgical care or maternity care, the beneficiary shall
be entitled to the greater of the CHAMPUS-determined allowable charge
for either the inpatient medical care or surgical or maternity care
received, as the case may be, but not both; except that the provisions
of this paragraph (c)(3)(ii) shall not apply if such inpatient medical
care is for a diagnosed condition requiring inpatient medical care not
related to the condition for which surgical care or maternity care is
received, and is received from a physician other than the one rendering
the surgical care or maternity care.
Note: This provision is not meant to imply that when extra time and
special effort are required due to postsurgical or postdelivery
complications, the attending physician may not request special
consideration for a higher than usual charge.
(iii) Need for surgical assistance. Surgical assistance is payable
only when the complexity of the procedure warrants a surgical assistant
(other than the surgical nurse or other such operating room personnel),
subject to utilization review. In order for benefits to be extended for
surgical assistance service, the primary surgeon may be required to
certify in writing to the nonavailability of a qualified intern,
resident, or other house physician. When a claim is received for a
surgical assistant involving the following circumstances, special review
is required to ascertain whether the surgical assistance service meets
the medical necessity and other requirements of paragraph (c) of this
section.
(A) If the surgical assistance occurred in a hospital that has a
residency program in a specialty appropriate to the surgery;
(B) If the surgery was performed by a team of surgeons;
(C) If there were multiple surgical assistants; or
(D) If the surgical assistant was a partner of or from the same
group of practicing physicians as the attending surgeon.
(iv) Aftercare following surgery. Except for those diagnostic
procedures classified as surgery in paragraph (c) of this section, and
injection and needling procedures involving the joints, the benefit
payments made for surgery (regardless of the setting in which it is
rendered) include normal aftercare, whether the aftercare is billed for
by the physician or other authorized individual professional provider on
a global, all-inclusive basis, or billed for separately.
(v) Cast and sutures, removal. The benefit payments made for the
application of a cast or of sutures normally covers the postoperative
care including the removal of the cast or sutures. When the application
is made in one geographical location and the removal of the cast or
sutures must be done in another geographical location, a separate
benefit payment may be provided for the removal. The intent of this
provision is to provide a separate benefit only when it is impracticable
for the beneficiary to use the services of the provider that applied the
cast originally. Benefits are not available for the services of a second
provider if those services reasonably could have been rendered by the
individual professional provider who applied the cast or sutures
initially.
(vi) Inpatient care, concurrent. Concurrent inpatient care by more
than one individual professional provider is covered if required because
of the severity and complexity of the beneficiary's condition or because
the beneficiary has multiple conditions that require treatment by
providers of different specialities. Any claim for concurrent care must
be reviewed before extending benefits in order to ascertain the
condition of the beneficiary at the time the concurrent care was
rendered. In the absence of such determination, benefits are payable
only for inpatient care rendered by one attending physician or other
authorized individual professional provider.
(vii) Consultants who become the attending surgeon. A consultation
performed within 3 days of surgery by the attending physician is
considered a
[[Page 112]]
preoperative examination. Preoperative examinations are an integral part
of the surgery and a separate benefit is not payable for the
consultation. If more than 3 days elapse between the consultation and
surgery (performed by the same physician), benefits may be extended for
the consultation, subject to review.
(viii) Anesthesia administered by the attending physician. A
separate benefit is not payable for anesthesia administered by the
attending physician (surgeon or obstetrician) or dentist, or by the
surgical, obstetrical, or dental assistant.
(ix) Treatment of mental disorders. CHAMPUS benefits for the
treatment of mental disorders are payable for beneficiaries who are
outpatients or inpatients of CHAMPUS-authorized general or psychiatric
hospitals, RTCs, or specialized treatment facilities, as authorized by
the Director, OCHAMPUS, or a designee. All such services are subject to
review for medical or psychological necessity and for quality of care.
The Director, OCHAMPUS, reserves the right to require preauthorization
of mental health services. Preauthorization may be conducted by the
Director, OCHAMPUS, or a designee. In order to qualify for CHAMPUS
mental health benefits, the patient must be diagnosed by a CHAMPUS-
authorized licensed, qualified mental health professional to be
suffering from a mental disorder, according to the criteria listed in
the most current edition of the Diagnostic and Statistical Manual of
Mental Disorders which may be purchased from the American Psychiatric
Press, Inc., 1400 K Street, NW., suite 1101, Washington, DC 20005.
Benefits are limited for certain mental disorders, such as specific
developmental disorders. No benefits are payable for ``Conditions Not
Attributable to a Mental Disorder,'' or V codes. In order for treatment
of a mental disorder to be medically or psychologically necessary, the
patient must, as a result of a diagnosed mental disorder, be
experiencing both physical or psychological distress and an impairment
in his or her ability to function in appropriate occupational,
educational or social roles. It is generally the degree to which the
patient's ability to function is impaired that determines the level of
care (if any) required to treat the patient's condition.
(A) Covered diagnostic and therapeutic services. Subject to the
requirements and limitations stated, CHAMPUS benefits are payable for
the following services when rendered in the diagnosis or treatment of a
covered mental disorder by a CHAMPUS-authorized, qualified mental health
provider practicing within the scope of his or her license. Qualified
mental health providers are: psychiatrists or other physicians; clinical
psychologists, certified psychiatric nurse specialists, clinical social
workers, and certified marriage and family therapists; and pastoral and
mental health counselors under a physician's supervision. No payment
will be made for any service listed in paragraph (c)(3)(ix)(A) of this
section rendered by an individual who does not meet the criteria of
Sec. 199.6 for his or her respective profession, regardless of whether
the provider is an independent professional provider or an employee of
an authorized professional or institutional provider.
(1) Individual psychotherapy, adult or child. A covered individual
psychotherapy session is no more than 60 minutes in length. An
individual psychotherapy session of up to 120 minutes in length is
payable for crisis intervention.
(2) Group psychotherapy. A covered group psychotherapy session is no
more than 90 minutes in length.
(3) Family or conjoint psychotherapy. A covered family or conjoint
psychotherapy session is no more than 90 minutes in length. A family or
conjoint psychotherapy session of up to 180 minutes in length is payable
for crisis intervention.
(4) Psychoanalysis. Psychoanalysis is covered when provided by a
graduate or candidate of a psychoanalytic training institution
recognized by the American Psychoanalytic Association and when
preauthorized by the Director, OCHAMPUS, or a designee.
(5) Psychological testing and assessment. Psychological testing and
assessment is generally limited to six hours of testing in a fiscal year
when medically or psychologically necessary and in conjunction with
otherwise covered
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psychotherapy. Testing or assessment in excess of these limits requires
review for medical necessity. Benefits will not be provided for the
Reitan-Indiana battery when administered to a patient under age five,
for self-administered tests administered to patients under age 13, or
for psychological testing and assessment as part of an assessment for
academic placement.
(6) Administration of psychotropic drugs. When prescribed by an
authorized provider qualified by licensure to prescribe drugs.
(7) Electroconvulsive treatment. When provided in accordance with
guidelines issued by the Director, OCHAMPUS.
(8) Collateral visits. Covered collateral visits are those that are
medically or psychologically necessary for the treatment of the patient
and, as such, are considered as a psychotherapy session for purposes of
paragraph (c)(3)(ix)(B) of this section.
(B) Limitations and review requirements--(1) Outpatient
psychotherapy. Outpatient psychotherapy generally is limited to a
maximum of two psychotherapy sessions per week, in any combination of
individual, family, conjoint, collateral, or group sessions. Before
benefits can be extended for more than two outpatient psychotherapy
sessions per week, professional review of the medical or psychological
necessity for and appropriateness of the more intensive therapy is
required.
(2) Inpatient psychotherapy. Coverage of inpatient psychotherapy is
based on medical or psychological necessity for the services identified
in the patient's treatment plan. As a general rule, up to five
psychotherapy sessions per week are considered appropriate when
specified in the treatment as necessary to meet certain measurable/
observable goals and objectives. Additional sessions per week or more
than one type of psychotherapy sessions performed on the same day (for
example, an individual psychotherapy session and a family psychotherapy
session on the same day) could be considered for coverage, depending on
the medical or psychological necessity for the services. Benefits for
inpatient psychotherapy will end automatically when authorization has
been granted for the maximum number of inpatient mental health days in
accordance with the limits as described in this section, unless
additional coverage is granted by the Director, OCHAMPUS or a designee.
(C) Covered ancillary therapies. Includes art, music, dance,
occupational, and other ancillary therapies, when included by the
attending provider in an approved inpatient, residential treatment plan
and under the clinical supervision of a licensed doctoral level mental
health professional. These ancillary therapies are not separately
reimbursed professional services but are included within the
institutional reimbursement.
(D) Review of claims for treatment of mental disorder. The Director,
OCHAMPUS, shall establish and maintain procedures for review, including
professional review, of the services provided for the treatment of
mental disorders.
(x) Physical and occupational therapy. Assessment and treatment
services of a CHAMPUS-authorized physical or occupational therapist may
be cost-shared when:
(A) The services are prescribed and monitored by a physician;
(B) The purpose of the prescription is to reduce the disabling
effects of an illness, injury, or neuromuscular disorder; and
(C) The prescribed treatment increases, stabilizes, or slows the
deterioration of the beneficiary's ability to perform specified
purposeful activity in the manner, or within the range considered
normal, for a human being.
(xi) Well-child care. Benefits routinely are covered for well-child
care from birth to under six years of age. These periodic health
examinations are designed for prevention, early detection and treatment
of disease and consist of screening procedures, immunizations and risk
counseling.
(A) The following services are covered when required as a part of
the specific well-child care program and when rendered by the attending
pediatrician, family physician, certified nurse practitioner, or
certified physician assistant.
(1) Newborn examination, heredity and metabolic screening, and
newborn circumcision.
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(2) Periodic health supervision visits, in accordance with American
Academy of Pediatrics (AAP) guidelines, intended to promote the optimal
health for infants and children to include the following services:
(i) History and physical examination and mental health assessment.
(ii) Vision, hearing, and dental screening.
(iii) Developmental appraisal to include body measurement.
(iv) Immunizations as recommenced by the Centers for Disease Control
(CDC).
(v) Pediatric risk assessment for lead exposure and blood lead level
test.
(vi) Tuberculosis screening.
(vii) Blood pressure screening.
(viii) Measurement of hemoglobin and hematocrit for anemia.
(ix) Urinalysis.
(x) Health guidance and counseling, including breastfeeding and
nutrition counseling.
(B) Additional services or visits required because of specific
findings or because the particular circumstances of the individual case
are covered if medically necessary and otherwise authorized for benefits
under CHAMPUS.
(C) The Deputy Assistant Secretary of Defense, Health Services
Financing, will determine when such services are separately reimbursable
apart from the health supervision visit.
(xii) Private duty (special) nursing. Benefits are available for the
skilled nursing services rendered by a private duty (special) nurse to a
beneficiary requiring intensive skilled nursing care that can only be
provided with the technical proficiency and scientific skills of an R.N.
The specific skilled nursing services being rendered are controlling,
not the condition of the patient or the professional status of the
private duty (special) nurse rendering the services.
(A) Inpatient private duty (special) nursing services are limited to
those rendered to an inpatient in a hospital that does not have an ICU.
In addition, under specified circumstances, private duty (special)
nursing in the home setting also is covered.
(B) The private duty (special) nursing care must be ordered and
certified to be medically necessary by the attending physician.
(C) The skilled nursing care must be rendered by a private duty
(special) nurse who is neither a member of the immediate family nor is a
member of the beneficiary's household.
(D) Private duty (special) nursing care does not, except
incidentally, include providing services that provide or support
primarily the essentials of daily living or acting as a companion or
sitter.
(E) If the private duty (special) nursing care services being
performed are primarily those that could be rendered by the average
adult with minimal instruction or supervision, the services would not
qualify as covered private duty (special) nursing services, regardless
of whether performed by an R.N., regardless of whether or not ordered
and certified to by the attending physician, and regardless of the
condition of the patient.
(F) In order for such services to be considered for benefits, a
private duty (special) nurse is required to maintain detailed daily
nursing notes, whether the case involves inpatient nursing service or
nursing services rendered in the home setting.
(G) Claims for continuing private duty (special) nursing care shall
be submitted at least every 30 days. Each claim will be reviewed and the
nursing care evaluated whether it continues to be appropriate and
eligible for benefits.
(H) In most situations involving private duty (special) nursing care
rendered in the home setting, benefits will be available only for a
portion of the care, that is, providing benefits only for that time
actually required to perform medically necessary skilled nursing
services. If full-time private duty (special) nursing services are
engaged, usually for convenience or to provide personal services to the
patient, CHAMPUS benefits are payable only for that portion of the day
during which skilled nursing services are rendered, but in no event is
less than 1 hour of nursing care payable in any 24-hour period during
which skilled nursing services are determined to have been rendered.
Such situations often are better accommodated through the use of
visiting nurses. This allows the
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personal services that are not coverable by CHAMPUS to be obtained at
lesser cost from other than an R.N. Skilled nursing services provided by
visiting nurses are covered under CHAMPUS.
Note: When the services of an R.N. are not available, benefits may
be extended for the otherwise covered services of a L.P.N. or L.V.N.
(xiii) Physicians in a teaching setting.
(A) Teaching physicians.
(1) General. The services of teaching physicians may be reimbursed
on an allowable charge basis only when the teaching physician has
established an attending physician relationship between the teaching
physician and the patient or when the teaching physician provides
distinct, identifiable, personal services (e.g., services rendered as a
consultant, assistant surgeon, etc.). Attending physician services may
include both direct patient care services or direct supervision of care
provided by a physician in training. In order to be considered an
attending physician, the teaching physician must:
(i) Review the patient's history and the record of examinations and
tests in the institution, and make frequent reviews of the patient's
progress; and
(ii) Personally examine the patient; and
(iiii) Confirm or revise the diagnosis and determine the course of
treatment to be followed; and
(iv) Either perform the physician's services required by the patient
or supervise the treatment so as to assure that appropriate services are
provided by physicians in training and that the care meets a proper
quality level; and
(v) Be present and ready to perform any service performed by an
attending physician in a nonteaching setting when a major surgical
procedure or a complex or dangerous medical procedure is performed; and
(vi) Be personally responsible for the patient's care, at least
throughout the period of hospitalization.
(2) Direct supervision by an attending physician of care provided by
physicians in training. Payment on the basis of allowable charges may be
made for the professional services rendered to a beneficiary by his/her
attending physician when the attending physician provides personal and
identifiable direction to physicians in training who are participating
in the care of the patient. It is not necessary that the attending
physician be personally present for all services, but the attending
physician must be on the provider's premises and available to provide
immediate personal assistance and direction if needed.
(3) Individual, personal services. A teaching physician may be
reimbursed on an allowable charge basis for any individual, identifiable
service rendered to a CHAMPUS beneficiary, so long as the service is a
covered service and is normally reimbursed separately, and so long as
the patient records substantiate the service.
(4) Who may bill. The services of a teaching physician must be
billed by the institutional provider when the physician is employed by
the provider or a related entity or under a contract which provides for
payment to the physician by the provider or a related entity. Where the
teaching physician has no relationship with the provider (except for
standard physician privileges to admit patients) and generally treats
patients on a fee-for-service basis in the private sector, the teaching
physician may submit claims under his/her own provider number.
(B) Physicians in training. Physicians in training in an approved
teaching program are considered to be ``students'' and may not be
reimbursed directly by CHAMPUS for services rendered to a beneficiary
when their services are provided as part of their employment (either
salaried or contractual) by a hospital or other institutional provider.
Services of physicians in training may be reimbursed on an allowable
charge basis only if:
(1) The physician in training is fully licensed to practice medicine
by the state in which the services are performed, and
(2) The services are rendered outside the scope and requirements of
the approved training program to which the physician in training is
assigned.
(d) Other benefits--(1) General. Benefits may be extended for the
allowable charge of those other covered services and supplies described
in paragraph (d) of this section, which are provided in accordance with
good medical practice
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and established standards of quality by those other authorized providers
described in Sec. 199.6 of this Regulation. Such benefits are subject
to all applicable definitions, conditions, limitations, or exclusions as
otherwise may be set forth in this or other chapters of this Regulation.
To be considered for benefits under paragraph (d) of this section, the
described services or supplies must be prescribed and ordered by a
physician. Other authorized individual professional providers acting
within their scope of licensure may also prescribe and order these
services and supplies unless otherwise specified in paragraph (d) of
this section. For example, durable medical equipment and
cardiorespiratory monitors can only be ordered by a physician.
(2) Billing practices. To be considered for benefits under paragraph
(d) of this section, covered services and supplies must be provided and
billed for by an authorized provider as set forth in Sec. 199.6 of this
part. Such billing must be itemized fully and described sufficiently,
even when CHAMPUS payment is determined under the CHAMPUS DRG-based
payment system, so that CHAMPUS can determine whether benefits are
authorized by this part. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever continuing charges are involved, claims
should be submitted to the appropriate CHAMPUS fiscal intermediary at
least every 30 days (monthly) either by the beneficiary or sponsor or
directly by the provider. For claims subject to the CHAMPUS DRG-based
payment system, claims may be submitted only after the beneficiary has
been discharged or transferred from the hospital.
(3) Other covered services and supplies--(i) Blood. If whole blood
or plasma (or its derivatives) are provided and billed for by an
authorized institution in connection with covered treatment, benefits
are extended as set forth in paragraph (b) of this section. If blood is
billed for directly to a beneficiary, benefits may be extended under
paragraph (d) in the same manner as a medical supply.
(ii) Durable medical equipment--(A) Scope of benefit. Subject to the
exceptions in paragraphs (B) and (C) below, only durable medical
equipment (DME) which is ordered by a physician for the specific use of
the beneficiary, and which complies with the definition of ``Durable
Medical Equipment'' in Sec. 199.2 of this part, and which is not
otherwise excluded by this Regulation qualifies as a Basic Program
benefit.
(B) Cardiorespiratory monitor exception. (1) When prescribed by a
physician who is otherwise eligible as a CHAMPUS individual professional
provider, or who is on active duty with a United States Uniformed
Service, an electronic cardiorespiratory monitor, including technical
support necessary for the proper use of the monitor, may be cost-shared
as durable medical equipment when supervised by the prescribing
physician for in-home use by:
(i) An infant beneficiary who has had an apparent life-threatening
event, as defined in guidelines issued by the Director, OCHAMPUS, or a
designee, or
(ii) An infant beneficiary who is a subsequent or multiple birth
biological sibling of a victim of sudden infant death syndrome (SIDS),
or
(iii) An infant beneficiary whose birth weight was 1,500 grams or
less, or
(iv) An infant beneficiary who is a pre-term infant with pathologic
apnea, as defined in guidelines issued by the Director, OCHAMPUS, or a
designee, or
(v) Any beneficiary who has a condition or suspected condition
designated in guidelines issued by the Director, OCHAMPUS, or a
designee, for which the in-home use of the cardiorespiratory monitor
otherwise meets Basic Program requirements.
(2) The following types of services and items may be cost-shared
when provided in conjunction with an otherwise authorized
cardiorespiratory monitor:
(i) Trend-event recorder, including technical support necessary for
the proper use of the recorder.
(ii) Analysis of recorded physiological data associated with monitor
alarms.
(iii) Professional visits for services otherwise authorized by this
part, and for family training on how to respond to an apparent life
threatening event.
(iv) Diagnostic testing otherwise authorized by this part.
(C) Basic mobility equipment exception. A wheelchair, or a CHAMPUS-
approved
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alternative, which is medically necessary to provide basic mobility,
including reasonable additional cost for medically necessary
modifications to accommodate a particular disability, may be cost-shared
as durable medical equipment.
(D) Exclusions. DME which is otherwise qualified as a benefit is
excluded as a benefit under the following circumstances:
(1) DME for a beneficiary who is a patient in a type of facility
that ordinarily provides the same type of DME item to its patients at no
additional charge in the usual course of providing its services.
(2) DME which is available to the beneficiary from a Uniformed
Services Medical Treatment Facility.
(3) DME with deluxe, luxury, or immaterial features which increase
the cost of the item to the government relative to a similar item
without those features.
(E) Basis for reimbursement. The cost of DME may be shared by the
CHAMPUS based upon the price which is most advantageous to the
government taking into consideration the anticipated duration of the
medically necessary need for the equipment and current price information
for the type of item. The cost analysis must include comparison of the
total price of the item as a monthly rental charge, a lease-purchase
price, and a lump-sum purchase price and a provision for the time value
of money at the rate determined by the U.S. Department of the Treasury.
(iii) Medical supplies and dressings (consumables). Medical supplies
and dressings (consumables) are those that do not withstand prolonged,
repeated use. Such items must be related directly to an appropriate and
verified covered medical condition of the specific beneficiary for whom
the item was purchased and obtained from a medical supply company, a
pharmacy, or authorized institutional provider. Examples of covered
medical supplies and dressings are disposable syringes for a known
diabetic, colostomy sets, irrigation sets, and elastic bandages. An
external surgical garment specifically designed for use following a
mastectomy is considered a medical supply item.
Note: Generally, the allowable charge of a medical supply item will
be under $100. Any item over this amount must be reviewed to determine
whether it would not qualify as a DME item. If it is, in fact, a medical
supply item and does not represent an excessive charge, it can be
considered for benefits under paragraph (d)(3)(iii) of this section.
(iv) Oxygen. Oxygen and equipment for its administration are
covered. Benefits are limited to providing a tank unit at one location
with oxygen limited to a 30-day supply at any one time. Repair and
adjustment of CHAMPUS-purchased oxygen equipment also is covered.
(v) Ambulance. Civilian ambulance service is covered when medically
necessary in connection with otherwise covered services and supplies and
a covered medical condition. Ambulance service is also covered for
transfers to a Uniformed Service Medical Treatment Facility (USMTF). For
the purpose of CHAMPUS payment, ambulance service is an outpatient
service (including in connection with maternity care) with the exception
of otherwise covered transfers between hospitals which are cost-shared
on an inpatient basis. Ambulance transfers from a hospital based
emergency room to another hospital more capable of providing the
required care will also be cost-shared on an inpatient basis.
Note: The inpatient cost-sharing provisions for ambulance transfers
only apply to otherwise covered transfers between hospitals, i.e., acute
care, general, and special hospitals; psychiatric hospitals; and long-
term hospitals.
(A) Ambulance service is covered for emergency transfers from a
beneficiary's place of residence, accident scene, or other location to a
USMTF, and for transfer to a USMTF after treatment at, or admission to,
a civilian hospital, if ordered by other than a representative of the
USMTF.
(B) Ambulance service cannot be used instead of taxi service and is
not payable when the patient's condition would have permitted use of
regular private transportation; nor is it payable when transport or
transfer of a patient is primarily for the purpose of having the patient
nearer to home, family, friends, or personal physician. Except as
described in paragraph
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(d)(3)(v)(A) of this section, transport must be to closest appropriate
facility by the least costly means.
(C) Vehicles such as medicabs or ambicabs function primarily as
public passenger conveyances transporting patients to and from their
medical appointments. No actual medical care is provided to the patients
in transit. These types of vehicles do not qualify for benefits for the
purpose of CHAMPUS payment.
(D) Ambulance services by other than land vehicles (such as a boat
or airplane) may be considered only when the pickup point is
inaccessible by a land vehicle, or when great distance or other
obstacles are involved in transporting the patient to the nearest
hospital with appropriate facilities and the patient's medical condition
warrants speedy admission or is such that transfer by other means is
contraindicated.
(vi) Prescription drugs and medicines. Prescription drugs and
medicines that by United States law require a physician's or other
authorized individual professional provider's prescription (acting
within the scope of their license) and that are ordered or prescribed by
a physician or other authorized individual professional provider (except
that insulin is covered for a known diabetic, even though a prescription
may not be required for its purchase) in connection with an otherwise
covered condition or treatment, including Rh immune globulin.
(A) Drugs administered by a physician or other authorized individual
professional provider as an integral part of a procedure covered under
paragraph (b) or (c) of this section (such as chemotherapy) are not
covered under this subparagraph inasmuch as the benefit for the
institutional services or the professional services in connection with
the procedure itself also includes the drug used.
(B) CHAMPUS benefits may not be extended for drugs not approved by
the U.S. Food and Drug Administration for commercial marketing. Drugs
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be
covered under CHAMPUS as if FDA approved.
(vii) Prosthetic devices. The purchase of prosthetic devices is
limited to those determined by the Director, OCHAMPUS to be necessary
because of significant conditions resulting from trauma, congenital
anomalies, or disease.
(viii) Orthopedic braces and appliances. The purchase of leg braces
(including attached shoes), arm braces, back braces, and neck braces is
covered, orthopedic shoes, arch supports, shoe inserts, and other
supportive devices for the feet, including special-ordered, custom-made
built-up shoes or regular shoes subsequently built up, are not covered.
(e) Special benefit information--(1) General. There are certain
circumstances, conditions, or limitations that impact the extension of
benefits and that require special emphasis and explanation. This
paragraph (e) sets forth those benefits and limitations recognized to be
in this category. The benefits and limitations herein described also are
subject to all applicable definitions, conditions, limitations,
exceptions, and exclusions as set forth in this or other sections of
this part, except as otherwise may be provided specifically in this
paragraph (e).
(2) Abortion. The statute under which CHAMPUS operates prohibits
payment for abortions with one single exception--where the life of the
mother would be endangered if the fetus were carried to term. Covered
abortion services are limited to medical services and supplies only.
Physician certification is required attesting that the abortion was
performed because the mother's life would be endangered if the fetus
were carried to term. Abortions performed for suspected or confirmed
fetal abnormality (e.g., anencephalic) or for mental health reasons
(e.g., threatened suicide) do not fall within the exceptions permitted
within the language of the statute and are not authorized for payment
under CHAMPUS.
Note: Covered abortion services are limited to medical services or
supplies only for the single circumstance outlined above and do not
include abortion counseling or referral fees. Payment is not allowed for
any services involving preparation for, or normal followup to, a
noncovered abortion. The Director, OCHAMPUS, or a designee, shall issue
guidelines describing the policy on abortion.
[[Page 119]]
(3) Family planning. The scope of the CHAMPUS family planning
benefit is as follows:
(i) Birth control (such as contraception)--(A) Benefits provided.
Benefits are available for services and supplies related to preventing
conception, including the following:
(1) Surgical inserting, removal, or replacement of intrauterine
devices.
(2) Measurement for, and purchase of, contraceptive diaphragms (and
later remeasurement and replacement).
(3) Prescription contraceptives.
(4) Surgical sterilization (either male or female).
(B) Exclusions. The family planning benefit does not include the
following:
(1) Prophylactics (condoms).
(2) Spermicidal foams, jellies, and sprays not requiring a
prescription.
(3) Services and supplies related to noncoital reproductive
technologies, including but not limited to artificial insemination
(including any costs related to donors or semen banks), in-vitro
fertilization and gamete intrafallopian transfer.
(4) Reversal of a surgical sterilization procedure (male or female).
(ii) Genetic testing. Genetic testing essentially is preventive
rather than related to active medical treatment of an illness or injury.
However, under the family planning benefit, genetic testing is covered
when performed in certain high risk situations. For the purpose of
CHAMPUS, genetic testing includes to detect developmental abnormalities
as well as purely genetic defects.
(A) Benefits provided. Benefits may be extended for genetic testing
performed on a pregnant beneficiary under the following prescribed
circumstances. The tests must be appropriate to the specific risk
situation and must meet one of the following criteria:
(1) The mother-to-be is 35 years old or older; or
(2) The mother- or father-to-be has had a previous child born with a
congenital abnormality; or
(3) Either the mother- or father-to-be has a family history of
congenital abnormalities; or
(4) The mother-to-be contracted rubella during the first trimester
of the pregnancy; or
(5) Such other specific situations as may be determined by the
Director, OCHAMPUS, or a designee, to fall within the intent of
paragraph (e)(3)(ii) of this section.
(B) Exclusions. It is emphasized that routine or demand genetic
testing is not covered. Further, genetic testing does not include the
following:
(1) Tests performed to establish paternity of a child.
(2) Tests to determine the sex of an unborn child.
(4) Treatment of substance use disorders. Emergency and inpatient
hospital care for complications of alcohol and drug abuse or dependency
and detoxification are covered as for any other medical condition.
Specific coverage for the treatment of substance use disorders includes
detoxification, rehabilitation, and outpatient care provided in
authorized substance use disorder rehabilitation facilities.
(i) Emergency and inpatient hospital services. Emergency and
inpatient hospital services are covered when medically necessary for the
active medical treatment of the acute phases of substance abuse
withdrawal (detoxification), for stabilization, and for treatment of
medical complications of substance use disorders. Emergency and
inpatient hospital services are considered medically necessary only when
the patient's condition is such that the personnel and facilities of a
hospital are required. Stays provided for substance use disorder
rehabilitation in a hospital-based rehabilitation facility are covered,
subject to the provisions of paragraph (e)(4)(ii) of this section.
Inpatient hospital services also are subject to the provisions regarding
the limit on inpatient mental health services.
(ii) Authorized substance use disorder treatment. Only those
services provided by CHAMPUS-authorized institutional providers are
covered. Such a provider must be either an authorized hospital, or an
organized substance use disorder treatment program in an authorized
free-standing or hospital-based substance use disorder rehabilitation
facility. Covered services consist of any or all of the services listed
below. A qualified mental health provider (physicians, clinical
psychologists, clinical
[[Page 120]]
social workers, psychiatric nurse specialists) (see paragraph (c)(3)(ix)
of this section) shall prescribe the particular level of treatment. Each
CHAMPUS beneficiary is entitled to three substance use disorder
treatment benefit periods in his or her lifetime, unless this limit is
waived pursuant to paragraph (e)(4)(v) of this section. (A benefit
period begins with the first date of covered treatment and ends 365 days
later, regardless of the total services actually used within the benefit
period. Unused benefits cannot be carried over to subsequent benefit
periods. Emergency and inpatient hospital services (as described in
paragraph (e)(4)(i) of this section) do not constitute substance abuse
treatment for purposes of establishing the beginning of a benefit
period.)
(A) Rehabilitative care. Rehabilitative care in a authorized
hospital or substance use disorder rehabilitative facility, whether
free-standing or hospital-based, is covered on either a residential or
partial care (day or night program) basis. Coverage during a single
benefit period is limited to no more than inpatient stay (exclusive of
stays classified in DRG 433) in hospitals subject to CHAMPUS DRG-based
payment system or 21 days in a DRG-exempt facility for rehabilitation
care, unless the limit is waived pursuant to paragraph (e)(4)(v) of this
section. If the patient is medically in need of chemical detoxification,
but does not require the personnel or facilities of a general hospital
setting, detoxification services are covered in addition to the
rehabilitative care, but in a DRG-exempt facility detoxification
services are limited to 7 days unless the limit is waived pursuant to
paragraph (e)(4)(v) of this section. The medical necessity for the
detoxification must be documented. Any detoxification services provided
by the substance use disorder rehabilitation facility must be under
general medical supervision.
(B) Outpatient care. Outpatient treatment provided by an approved
substance use disorder rehabilitation facility, whether free-standing or
hospital-based, is covered for up to 60 visits in a benefit period,
unless the limit is waived pursuant to paragraph (e)(4)(v) of this
section.
(C) Family therapy. Family therapy provided by an approved substance
use disorder rehabilitation facility, whether free-standing or hospital-
based, is covered for up to 15 visits in a benefit period, unless the
limit is waived pursuant to paragraph (e)(4)(v) of this section.
(iii) Exclusions--(A) Aversion therapy. The programmed use of
physical measures, such as electric shock, alcohol, or other drugs as
negative reinforcement (aversion therapy) is not covered, even if
recommended by a physician.
(B) Domiciliary settings. Domiciliary facilities, generally referred
to as halfway or quarterway houses, are not authorized providers and
charges for services provided by these facilities are not covered.
(iv) Confidentialty. Release of any patient identifying information,
including that required to adjudicate a claim, must comply with the
provisions of section 544 of the Public Health Service Act, as amended,
(42 U.S.C. 290dd-3), which governs the release of medical and other
information from the records of patients undergoing treatment of
substance abuse. If the patient refuses to authorize the release of
medical records which are, in the opinion of the Director, OCHAMPUS, or
a designee, necessary to determine benefits on a claim for treatment of
substance abuse the claim will be denied.
(v) Waiver of benefit limits. The specific benefit limits set forth
in paragraphs (e)(4)(ii) of this section may be waived by the Director,
OCHAMPUS in special cases based on a determination that all of the
following criteria are met:
(A) Active treatment has taken place during the period of the
benefit limit and substantial progress has been made according to the
plan of treatment.
(B) Further progress has been delayed due to the complexity of the
illness.
(C) Specific evidence has been presented to explain the factors that
interfered with further treatment progress during the period of the
benefit limit.
(D) The waiver request includes specific time frames and a specific
plan of treatment which will complete the course of treatment.
[[Page 121]]
(5) Organ transplants. Basic Program benefits are available for
otherwise covered services or supplies in connection with an organ
transplant procedure, provided such transplant procedure generally is in
accordance with accepted professional medical standards and is not
considered to be experimental or investigational.
(i) Recipient costs. CHAMPUS benefits are payable for recipient
costs when the recipient of the transplant is a beneficiary, whether or
not the donor is a beneficiary.
(ii) Donor costs. (A) Donor costs are payable when both the donor
and recipient are CHAMPUS beneficiaries.
(B) Donor costs are payable when the donor is a CHAMPUS beneficiary
but the recipient is not.
(C) Donor costs are payable when the donor is the sponsor and the
recipient is a beneficiary. (In such an event, donor costs are paid as a
part of the beneficiary and recipient costs.)
(D) Donor costs also are payable when the donor is neither a CHAMPUS
beneficiary nor a sponsor, if the recipient is a CHAMPUS beneficiary.
(Again, in such an event, donor costs are paid as a part of the
beneficiary and recipient costs.)
(iii) General limitations. (A) If the donor is not a beneficiary,
CHAMPUS benefits for donor costs are limited to those directly related
to the transplant procedure itself and do not include any medical care
costs related to other treatment of the donor, including complications.
(B) In most instances, for costs related to kidney transplants,
Medicare (not CHAMPUS) benefits will be applicable. If a CHAMPUS
beneficiary participates as a kidney donor for a Medicare beneficiary,
Medicare will pay for expenses in connection with the kidney transplant
to include all reasonable preparatory, operation and postoperation
recovery expenses associated with the donation (postoperative recovery
expenses are limited to the actual period of recovery). (See section
199.3 of this part for additional information on end stage renal
disease.)
(C) Donor transportation costs are excluded whether or not the donor
is a beneficiary.
(D) When the organ transplant is performed under a study, grant, or
research program, no CHAMPUS benefits are payable for either recipient
or donor cost.
(iv) Kidney acquisition. With specific reference to acquisition
costs for kidneys, each hospital that performs kidney transplants is
required for Medicare purposes to develop for each year separate
standard acquisition costs for kidneys obtained from live donors and
kidneys obtained from cadavers. The standard acquisition cost for
cadaver kidneys is compiled by dividing the total cost of cadaver
kidneys acquired by the number of transplants using cadaver kidneys. The
standard acquisition cost for kidneys from live donors is compiled
similarly using the total acquisition cost of kidneys from live donors
and the number of transplants using kidneys from live donors. All
recipients of cadaver kidneys are charged the same standard cadaver
kidney acquisition cost and all recipients of kidneys from live donors
are charged the same standard live donor acquisition cost. The
appropriate hospital standard kidney acquisition costs (live donor or
cadaver) required for Medicare in every instance must be used as the
acquisition cost for purposes of providing CHAMPUS benefits.
(v) Liver transplants. Effective July 1, 1983, CHAMPUS benefits are
payable for services and supplies related to liver transplantation under
the following circumstances only:
(A) Medical indications for liver transplantation. CHAMPUS shall
provide benefits for services and supplies related to liver
transplantation performed for beneficiaries suffering from irreversible
liver injury who have exhausted alternative medical and surgical
treatments, who are approaching the terminal phase of their illness, and
who are considered appropriate for liver transplantation according to
guidelines adopted by the Director, OCHAMPUS.
(B) Contraindications. CHAMPUS shall not provide coverage if any of
the following contraindications exist:
(1) Active alcohol or other substance abuse;
[[Page 122]]
(2) Malignancies metastasized to or extending beyond the margins of
the liver; or
(3) Viral-induced liver disease when viremia is still present.
(C) Specific covered services. CHAMPUS shall provide coverage for
the following services related to liver transplantation:
(1) Medically necessary services to evaluate a potential candidate's
suitability for liver transplantation, whether or not the patient is
ultimately accepted as a candidate for transplantation;
(2) Medically necessary pre- and post-transplant inpatient hospital
and outpatient services;
(3) Surgical services and related pre- and post-operative services
of the transplant team;
(4) Services provided by a donor organ acquisition team, including
the costs of transportation to the location of the donor organ and
transportation of the team and the donated organ to the location of the
transportation center;
(5) Medically necessary services required to maintain the viability
of the donor organ following a formal declaration of brain death and
after all existing legal requirements for excision of the donor organ
have been met;
(6) Blood and blood products;
(7) Services and drugs required for immunosuppression, provided the
drugs are approved by the United States Food and Drug Administration;
(8) Services and supplies, including inpatient care, which are
medically necessary to treat complications of the transplant procedure,
including management of infection and rejection episodes; and
(9) Services and supplies which are medically necessary for the
periodic evaluation and assessment of the successfully transplanted
patient.
(D) Specific noncovered services. CHAMPUS benefits will not be paid
for the following:
(1) Services and supplies for which the beneficiary has no legal
obligation to pay. For example, CHAMPUS shall not reimburse expenses
that are waived by the transplant center, or for which research funds
are available; and
(2) Out-of-hospital living expenses and any other non-medical
expenses, including transportation, of the liver transplant candidate or
family members, whether pre- or post-transplant.
(E) Implementation guidelines. The Director, OCHAMPUS, shall issue
such guidelines as are necessary to implement the provision of this
paragraph.
(vi) Heart transplantations. CHAMPUS benefits are payable for
services and supplies related to heart transplantation under the
following circumstances:
(A) Medical indications for heart transplantation. CHAMPUS shall
provide benefits for services and supplies related to heart
transplantation performed for beneficiaries with end-stage cardiac
disease who have exhausted alternative medical and surgical treatments,
who have a very poor prognosis as a result of poor cardiac functional
status, for whom plans for long-term adherence to a disciplined medical
regimen are feasible, and who are considered appropriate for heart
transplantation according to guidelines adopted by the Director,
OCHAMPUS. However, benefits for heart transplantation are available only
if the procedure is performed in a CHAMPUS-approved heart
transplantation center or meets other certification or accreditation
standards recognized by the Director, OCHAMPUS. See Sec.
199.6(b)(4)(iii).
(B) Specific covered services. CHAMPUS shall provide coverage for
the following services related to heart transplantation:
(1) Medically necessary services to evaluate a potential candidate's
suitability for heart transplantation, whether or not the patient is
ultimately accepted as a candidate for transplantation;
(2) Medically necessary pre- and post-transplant inpatient hospital
and outpatient services;
(3) Surgical services and related pre- and post-operative services
of the transplant team;
(4) Services provided by the donor acquisition team, including the
costs of transportation to the location of the donor organ and
transportation of the team and the donated organ to the location of the
transplantation center;
[[Page 123]]
(5) Medically necessary services required to maintain the viability
of the donor organ following a formal declaration of brain death and
after all existing legal requirements for excision of the donor organ
have been met;
(6) Blood and blood products;
(7) Services and drugs required for immunosuppression, provided the
drugs are approved by the United States Food and Drug Administration;
(8) Services and supplies, including inpatient care, which are
medically necessary to treat complications of the transplant procedure,
including management of infection and rejection episodes; and
(9) Services and supplies which are medically necessary for the
periodic evaluation and assessment of the successfully transplanted
patient.
(C) Noncovered services. CHAMPUS benefits will not be paid for the
following:
(1) Services and supplies for which the beneficiary has no legal
obligation to pay; and
(2) Out-of-hospital living expenses and any other nonmedical
expenses, including transportation of the heart transplant candidate or
family members, whether pre- or post-transplant.
(D) Implementation guidelines. The Director, OCHAMPUS, shall issue
such guidelines as are necessary to implement the provisions of this
paragraph.
(6) Eyeglasses, spectacles, contact lenses, or other optical
devices. Eyeglasses, spectacles, contact lenses, or other optical
devices are excluded under the Basic Program except under very limited
and specific circumstances.
(i) Exception to general exclusion. Benefits for glasses and lenses
may be extended only in connection with the following specified eye
conditions and circumstances:
(A) Eyeglasses or lenses that perform the function of the human
lens, lost as a result of intraocular surgery or ocular injury or
congenital absence.
Note: Notwithstanding the general requirement for U.S. Food and Drug
Administration approval of any surgical implant set forth in paragraph
(d)(3)(vii) of this section, intraocular lenses are authorized under
CHAMPUS if they are either approved for marketing by FDA or are subject
to an investigational device exemption.
(B) ``Pinhole'' glasses prescribed for use after surgery for
detached retina.
(C) Lenses prescribed as ``treatment'' instead of surgery for the
following conditions:
(1) Contract lenses used for treatment of infantile glaucoma.
(2) Corneal or scleral lenses prescribed in connection with
treatment of keratoconus.
(3) Scleral lenses prescribed to retain moisture when normal tearing
is not present or is inadequate.
(4) Corneal or scleral lenses prescribed to reduce a corneal
irregularity other than astigmatism.
(ii) Limitations. The specified benefits are limited further to one
set of lenses related to one of the qualifying eye conditions set forth
in paragraph (e)(6)(i) of this section. If there is a prescription
change requiring a new set of lenses (but still related to the
qualifying eye condition), benefits may be extended for a second set of
lenses, subject to specific medical review.
(7) Transsexualism or such other conditions as gender dysphoria. All
services and supplies directly or indirectly related to transsexualism
or such other conditions as gender dysphoria are excluded under CHAMPUS.
This exclusion includes, but is not limited to, psychotherapy,
prescription drugs, and intersex surgery that may be provided in
connection with transsexualism or such other conditions as gender
dysphoria. There is only one very limited exception to this general
exclusion, that is, notwithstanding the definition of congenital
anomaly, CHAMPUS benefits may be extended for surgery and related
medically necessary services performed to correct sex gender confusion
(that is, ambiguous genitalia) which has been documented to be present
at birth.
(8) Cosmetic, reconstructive, or plastic surgery. For the purposes
of CHAMPUS, cosmetic, reconstructive, or plastic surgery is surgery that
can be expected primarily to improve physical appearance or that is
performed primarily for psychological purposes or that restores form,
but does not correct or improve materially a bodily function.
Note: If a surgical procedure primarily restores function, whether
or not there is also a concomitant improvement in physical appearance,
the surgical procedure does not
[[Page 124]]
fall within the provisions set forth in this paragraph (e)(8).
(i) Limited benefits under CHAMPUS. Benefits under the Basic Program
generally are not available for cosmetic, reconstructive, or plastic
surgery. However, under certain limited circumstances, benefits for
otherwise covered services and supplies may be provided in connection
with cosmetic, reconstructive, or plastic surgery as follows:
(A) Correction of a congenital anomaly; or
(B) Restoration of body form following an accidental injury; or
(C) Revision of disfiguring and extensive scars resulting from
neoplastic surgery.
(D) Reconstructive breast surgery following a medically necessary
mastectomy performed for the treatment of carcinoma, severe fibrocystic
disease, other nonmalignant tumors or traumatic injuries.
(E) Penile implants and testicular prostheses for conditions
resulting from organic origins (i.e., trauma, radical surgery, disease
process, for correction of congenital anomaly, etc.). Also, penile
implants for organic impotency.
Note: Organic impotence is defined as that which can be reasonably
expected to occur following certain diseases, surgical procedures,
trauma, injury, or congenital malformation. Impotence does not become
organic because of psychological or psychiatric reasons.
(F) Generally, benefits are limited to those cosmetic,
reconstructive, or plastic surgery procedures performed no later than
December 31 of the year following the year in which the related
accidental injury or surgical trauma occurred, except for authorized
postmastectomy breast reconstruction for which there is no time
limitation between mastectomy and reconstruction. Also, special
consideration for exception will be given to cases involving children
who may require a growth period.
(ii) General exclusions. (A) For the purposes of CHAMPUS, dental
congenital anomalies such as absent tooth buds or malocclusion
specifically are excluded. Also excluded are any procedures related to
transsexualism or such other conditions as gender dysphoria, except as
provided in paragraph (e)(7) of this section.
(B) Cosmetic, reconstructive, or plastic surgery procedures
performed primarily for psychological reasons or as a result of the
aging process also are excluded.
(C) Procedures performed for elective correction of minor
dermatological blemishes and marks or minor anatomical anomalies also
are excluded.
(iii) Noncovered surgery, all related services and supplies
excluded. When it is determined that a cosmetic, reconstructive, or
plastic surgery procedure does not qualify for CHAMPUS benefits, all
related services and supplies are excluded, including any institutional
costs.
(iv) Example of noncovered cosmetic, reconstructive, or plastic
surgery procedures. The following is a partial list of cosmetic,
reconstructive, or plastic surgery procedures that do not qualify for
benefits under CHAMPUS. This list is for example purposes only and is
not to be construed as being all-inclusive.
(A) Any procedure performed for personal reasons to improve the
appearance of an obvious feature or part of the body that would be
considered by an average observer to be normal and acceptable for the
patient's age or ethnic or racial background.
(B) Cosmetic, reconstructive, or plastic surgical procedures that
are justified primarily on the basis of a psychological or psychiatric
need.
(C) Augmentation mammoplasties. Augmentation mammoplasties, except
for breast reconstruction following a covered mastectomy and those
specifically authorized in paragraph (e)(8)(i) of this section.
(D) Face lifts and other procedures related to the aging process.
(E) Reduction mammoplasties. Reduction mammoplasties (unless there
is medical documentation of intractable pain, not amenable to other
forms of treatment, resulting from large, pendulous breasts or unless
performed as an integral part of an authorized breast reconstruction
procedure under paragraph (e)(8)(i) of this section, including reduction
of the collateral breast for purposes of ensuring breast symmetry)
(F) Panniculectomy; body sculpture procedures.
[[Page 125]]
(G) Repair of sagging eyelids (without demonstrated and medically
documented significant impairment of vision).
(H) Rhinoplasties (without evidence of accidental injury occurring
within the previous 6 months that resulted in significant obstruction of
breathing).
(I) Chemical peeling for facial wrinkles.
(J) Dermabrasion of the face.
(K) Elective correction of minor dermatological blemishes and marks
or minor anatomical anomalies.
(L) Revision of scars resulting from surgery or a disease process,
except disfiguring and extensive scars resulting from neoplastic
surgery.
(M) Removal of tattoos.
(N) Hair transplants.
(O) Electrolysis.
(P) Any procedures related to transsexualism or such other
conditions as gender dysphoria except as provided in paragraph (e)(7) of
this section.
(Q) Penile implant procedure for psychological impotency,
transsexualism, or such other conditions as gender dysphoria.
(R) Insertion of prosthetic testicles for transsexualism, or such
other conditions as gender dysphoria.
(9) Complications (unfortunate sequelae) resulting from noncovered
initial surgery or treatment. Benefits are available for otherwise
covered services and supplies required in the treatment of complications
resulting from a noncovered incident of treatment (such as nonadjunctive
dental care, transsexual surgery, and cosmetic surgery) but only if the
later complication represents a separate medical condition such as a
systemic infection, cardiac arrest, and acute drug reaction. Benefits
may not be extended for any later care or procedures related to the
complication that essentially is similar to the initial noncovered care.
Examples of complications similar to the initial episode of care (and
thus not covered) would be repair of facial scarring resulting from
dermabrasion for acne or repair of a prolapsed vagina in a biological
male who had undergone transsexual surgery.
(10) Dental. CHAMPUS does not include a dental benefit. Under very
limited circumstances, benefits are available for dental services and
supplies when the dental services are adjunctive to otherwise covered
medical treatment.
(i) Adjunctive dental care: Limited. Adjunctive dental care is
limited to those services and supplies provided under the following
conditions:
(A) Dental care which is medically necessary in the treatment of an
otherwise covered medical (not dental) condition, is an integral part of
the treatment of such medical condition and is essential to the control
of the primary medical condition. The following is a list of conditions
for which CHAMPUS benefits are payable under this provision:
(1) Intraoral abscesses which extend beyond the dental alveolus.
(2) Extraoral abscesses.
(3) Cellulitis and osteitis which is clearly exacerbating and
directly affecting a medical condition currently under treatment.
(4) Removal of teeth and tooth fragments in order to treat and
repair facial trauma resulting from an accidental injury.
(5) Myofacial Pain Dysfunction Syndrome.
(6) Total or complete ankyloglossia.
(7) Adjunctive dental and orthodontic support for cleft palate.
(8) The prosthetic replacement of either the maxilla or the mandible
due to the reduction of body tissues associated with traumatic injury
(e.g., impact, gun shot wound), in addition to services related to
treating neoplasms or iatrogenic dental trauma.
Note: The test of whether dental trauma is covered is whether the
trauma is solely dental trauma. Dental trauma, in order to be covered,
must be related to, and an integral part of medical trauma; or a result
of medically necessary treatment of an injury or disease.
(B) Dental care required in preparation for medical treatment of a
disease or disorder or required as the result of dental trauma caused by
the medically necessary treatment of an injury or disease (iatrogenic).
(1) Necessary dental care including prophylaxis and extractions when
performed in preparation for or as a result of in-line radiation therapy
for oral or facial cancer.
[[Page 126]]
(2) Treatment of gingival hyperplasia, with or without periodontal
disease, as a direct result of prolonged therapy with Dilantin
(diphenylhydantoin) or related compounds.
(C) Dental care is limited to the above and similar conditions
specifically prescribed by the Director, OCHAMPUS, as meeting the
requirements for coverage under the provisions of this section.
(ii) General exclusions. (A) Dental care which is routine,
preventative, restorative, prosthodontic, periodontic or emergency does
not qualify as adjunctive dental care for the purposes of CHAMPUS except
when performed in preparation for or as a result of dental trauma caused
by medically necessary treatment of an injury or disease.
(B) The adding or modifying of bridgework and dentures.
(C) Orthodontia, except when directly related to and an integral
part of the medical or surgical correction of a cleft palate or when
required in preparation for, or as a result of, trauma to the teeth and
supporting structures caused by medically necessary treatment of an
injury or disease.
(iii) Preauthorization required. In order to be covered, adjunctive
dental care requires preauthorization from the Director, OCHAMPUS, or a
designee, in accordance with paragraph (a)(11) of this section. When
adjunctive dental care involves a medical (not dental) emergency (such
as facial injuries resulting from an accident), the requirement for
preauthorization is waived. Such waiver, however, is limited to the
essential adjunctive dental care related to the medical condition
requiring the immediate emergency treatment. A complete explanation,
with supporting medical documentation, must be submitted with claims for
emergency adjunctive dental care.
(iv) Covered oral surgery. Notwithstanding the above limitations on
dental care, there are certain oral surgical procedures that are
performed by both physicians and dentists, and that are essentially
medical rather than dental care. For the purposes of CHAMPUS, the
following procedures, whether performed by a physician or dentist, are
considered to be in this category and benefits may be extended for
otherwise covered services and supplies without preauthorization:
(A) Excision of tumors and cysts of the jaws, cheeks, lips, tongue,
and roof and floor of the mouth, when such conditions require a
pathological (histological) examination.
(B) Surgical procedures required to correct accidental injuries of
the jaws, cheeks, lips, tongue, and roof and floor of the mouth.
(C) Treatment of oral or facial cancer.
(D) Treatment of fractures of facial bones.
(E) External (extra-oral) incision and drainage of cellulitis.
(F) Surgery of accessory sinuses, salivary glands, or ducts.
(G) Reduction of dislocations and the excision of the
temporomandibular joints, when surgery is a necessary part of the
reduction.
(H) Any oral surgical procedure that falls within the cosmetic,
reconstructive, or plastic surgery definition is subject to the
limitations and requirements set forth in paragraph (e)(8) of this
section.
Note: Extraction of unerupted or partially erupted, malposed or
impacted teeth, with or without the attached follicular or development
tissues, is not a covered oral surgery procedure except when the care is
indicated in preparation for medical treatment of a disease or disorder
or required as a result of dental trauma caused by the necessary medical
treatment of an injury or illness. Surgical preparation of the mouth for
dentures is not covered by CHAMPUS.
(v) Inpatient hospital stay in connection with non-adjunctive,
noncovered dental care. Institutional benefits specified in paragraph
(b) of this section may be extended for inpatient hospital stays related
to noncovered, nonadjunctive dental care when such inpatient stay is
medically necessary to safeguard the life of the patient from the
effects of dentistry because of the existence of a specific and serious
nondental organic impairment currenty under active treatment.
(Hemophilia is an example of a condition that could be considered a
serious nondental impairment.) Preauthorization by the Director,
OCHAMPUS, or a designee, is required for such inpatient stays to be
[[Page 127]]
covered in the same manner as required for adjunctive dental care
described in paragraph (e)(10)(iii) of this section. Regardless of
whether or not the preauthorization request for the hospital admission
is approved and thus qualifies for institutional benefits, the
professional service related to the nonadjunctive dental care is not
covered.
(11) Drug abuse. Under the Basic Program, benefits may be extended
for medically necessary prescripion drugs required in the treatment of
an illness or injury or in connection with maternity care (refer to
paragraph (d) of this section). However, CHAMPUS benefits cannot be
authorized to support of maintain an existing or potential drug abuse
situation, whether or not the drugs (under other circumstances) are
eligible for benefit consideration and whether or not obtained by legal
means.
(i) Limitations on who can prescribe drugs. CHAMPUS benefits are not
available for any drugs prescribed by a member of the beneficiary's
family or by a nonfamily member residing in the same household with the
beneficiary or sponsor.
(ii) Drug maintenance programs excluded. Drug maintenance programs
when one addictive drug is substituted for another on a maintenance
basis (such as methadone substituted for heroin) are not covered. This
exclusion applies even in areas outside the United States where
addictive drugs are dispensed legally by physicians on a maintenance
dosage level.
(iii) Kinds of prescription drugs that are monitored carefully by
CHAMPUS for possible abuse situations--(A) Narcotics. Examples are
Morphine and Demerol.
(B) Nonnarcotic analgesics. Examples are Talwin and Darvon.
(C) Tranquilizers. Examples are Valium, Librium, and Meprobamate.
(D) Barbiturates. Examples are Seconal and Nembuttal.
(E) Nonbarbituate hypnotics. Examples are Doriden and Chloral
Hydrate.
(F) Stimulants. Examples are amphetamines.
(iv) CHAMPUS fiscal intermediary responsibilities. CHAMPUS fiscal
intermediaries are responsible for implementing utilization control and
quality assurance procedures designed to identify possible drug abuse
situations. The CHAMPUS fiscal intermediary is directed to screen all
drug claims for potential overutilization and irrational prescribing of
drugs, and to subject any such cases to extensive review to establish
the necessity for the drugs and their appropriateness on the basis of
diagnosis or definitive symptoms.
(A) When a possible drug abuse situation is identified, all claims
for drugs for that specific beneficiary or provider will be suspended
pending the results of a review.
(B) If the review determines that a drug abuse situation does in
fact exist, all drug claims held in suspense will be denied.
(C) If the record indicates previously paid drug benefits, the prior
claims for that beneficiary or provider will be reopened and the
circumstances involved reviewed to determine whether or not drug abuse
also existed at the time the earlier claims were adjudicated. If drug
abuse is later ascertained, benefit payments made previously will be
considered to have been extended in error and the amounts so paid
recouped.
(D) Inpatient stays primarily for the purpose of obtaining drugs and
any other services and supplies related to drug abuse also are excluded.
(v) Unethical or illegal provider practices related to drugs. Any
such investigation into a possible drug abuse that uncovers unethical or
illegal drug dispensing practices on the part of an institution, a
pharmacy, or physician will be referred to the professional or
investigative agency having jurisdiction. CHAMPUS fiscal intermediaries
are directed to withhold payment of all CHAMPUS claims for services and
supplies rendered by a provider under active investigation for possible
unethical or illegal drug dispensing activities.
(vi) Detoxification. The above monitoring and control of drug abuse
situations shall in no way be construed to deny otherwise covered
medical services and supplies related to drug detoxification (including
newborn, addicted infants) when medical supervision is required.
(12) Custodial care. The statute under which CHAMPUS operates
specifically
[[Page 128]]
excludes custodial care. Many beneficiaries and sponsors misunderstand
what is meant by custodial care, assuming that because custodial care is
not covered, it implies the custodial care is not necessary. This is not
the case; it only means the care being provided is not a type of care
for which CHAMPUS benefits can be extended.
(i) Kinds of conditions that can result in custodial care. There is
no absolute rule that can be applied. With most conditions, there is a
period of active treatment before custodial care, some much more
prolonged than others. Examples of potential custodial care cases may be
a spinal cord injury resulting in extensive paralysis, a severe cerebral
vascular accident, multiple sclerosis in its latter stages, or presenile
and senile dementia. These conditions do not result necessarily in
custodial care but are indicative of the types of conditions that
sometimes do. It is not the condition itself that is controlling, but
whether the care being rendered falls within the definition of custodial
care (refer to Sec. 199.2 of this part for the definition of
``custodial care'').
(ii) Benefits available in connection with a custodial care case.
CHAMPUS benefits are not available for services related to a custodial
care case, with the following specific exceptions:
(A) Prescription drugs and medicines, medical supplies and durable
medical equipment. Benefits are payable for otherwise covered
prescription drugs and medicines, medical supplies and durable medical
equipment.
(B) Nursing services, limited. Recognizing that even though the care
being received is determined primarily to be custodial, an occasional
specific skilled nursing service may be required. When it is determined
such skilled nursing services are needed, benefits may be extended for
one hour of nursing care per day.
(C) Physician services, limited. Recognizing that even though the
care being received is determined primarily to be custodial, occasional
physician monitoring may be required to maintain the patient's
condition. When it is determined that a patient is receiving custodial
care, benefits may be extended for up to twelve physician visits per
calendar year for the custodial condition (not to exceed one per month).
Note: CHAMPUS benefits may be extended for additional physician
visits related to the treatment of a condition other than the condition
for which the patient is receiving custodial care (an example is a
broken leg as a result of a fall).
(D) Payment for prescription drugs, medical supplies, durable
medical equipment and limited skilled nursing and physician services
does not affect custodial care determination. The fact that CHAMPUS
extends benefits for prescription drugs, medical supplies, durable
medical equipment, and limited skilled nursing and physician services in
no way affects the custodial care determination if the case otherwise
falls within the definition of custodial care.
(iii) Exception to custodial care exclusion, admission to a
hospital. CHAMPUS benefits may be extended for otherwise covered
services or supplies directly related to a medically necessary admission
to an acute care general or special hospital (as defined in paragraph
(b)(4)(i), section 199.6 of this part), if the care is at the
appropriate level and meets other requirements of this Regulation.
(iv) Reasonable care for which benefits were authorized or
reimbursed before June 1, 1977. It is recognized that care for which
benefits were authorized or reimbursed before the implementation date of
DoD 6010.8-R may be excluded under the custodial care limitations set
forth in the Regulation. Therefore, an exception to the custodial care
limitations set forth in this part exists whereby reasonable care for
which benefits authorized or reimbursed under the Basic Program before
June 1, 1977, shall continue to be authorized even though the care would
be excluded as a benefit under the custodial care limitations of the DoD
6010.8-R. Continuation of CHAMPUS benefits in such cases is limited as
follows:
(A) Initial authorization or reimbursement before June 1, 1977. The
initial CHAMPUS authorization or reimbursement for the care occurred
before June 1, 1977; and,
(B) Continued care. The care has been continuous since the initial
CHAMPUS authorization or reimbursement; and,
(C) Reasonable care. The care is reasonable. CHAMPUS benefits shall
be
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continued for reasonable care up to the same level of benefits and for
the same period of eligibility authorized or reimbursed before June 1,
1977. Care that is excessive or otherwise unreasonable will be reduced
or eliminated from the continued care authorized under this exception.
(13) Domiciliary care. The statute under which CHAMPUS operates also
specifically excludes domiciliary care (refer to Sec. 199.2 of this
part for the definition of ``Domiciliary Care'').
(i) Examples of domiciliary care situations. The following are
examples of domiciliary care for which CHAMPUS benefits are not payable.
(A) Home care is not available. Institutionalization primarily
because parents work, or extension of a hospital stay beyond what is
medically necessary because the patient lives alone, are examples of
domiciliary care provided because there is no other family member or
other person available in the home.
(B) Home care is not suitable. Institutionalization of a child
because a parent (or parents) is an alcoholic who is not responsible
enough to care for the child, or because someone in the home has a
contagious disease, are examples of domiciliary care being provided
because the home setting is unsuitable.
(C) Family unwilling to care for a person in the home. A child who
is difficult to manage may be placed in an institution, not because
institutional care is medically necessary, but because the family does
not want to handle him or her in the home. Such institutionalization
would represent domiciliary care, that is, the family being unwilling to
assume responsibility for the child.
(ii) Benefits available in connection with a domiciliary care case.
Should the beneficiary receive otherwise covered medical services or
supplies while also being in a domiciliary care situation, CHAMPUS
benefits are payable for those medical services or supplies, or both, in
the same manner as though the beneficiary resided in his or her own
home. Such benefits would be cost-shared as though rendered to an
outpatient.
(iii) General exclusion. Domiciliary care is institutionalization
essentially to provide a substitute home--not because it is medically
necessary for the beneficiary to be in the institution (although there
may be conditions present that have contributed to the fact that
domiciliary care is being rendered). CHAMPUS benefits are not payable
for any costs or charges related to the provision of domiciliary care.
While a substitute home or assistance may be necessary for the
beneficiary, domiciliary care does not represent the kind of care for
which CHAMPUS benefits can be provided.
(14) CT scanning--(i) Approved CT scan services. Benefits may be
extended for medically necessary CT scans of the head or other
anatomical regions of the body when all of the following conditions are
met:
(A) The patient is referred for the diagnostic procedure by a
physician.
(B) The CT scan procedure is consistent with the preliminary
diagnosis or symptoms.
(C) Other noninvasive and less costly means of diagnosis have been
attempted or are not appropriate.
(D) The CT scan equipment is licensed or registered by the
appropriate state agency responsible for licensing or registering
medical equipment that emits ionizing radiation.
(E) The CT scan equipment is operated under the general supervision
and direction of a physician.
(F) The results of the CT scan diagnostic procedure are interpreted
by a physician.
(ii) Review guidelines and criteria. The Director, OCHAMPUS, or a
designee, will issue specific guidelines and criteria for CHAMPUS
coverage of medically necessary head and body part CT scans.
(15) Morbid obesity. The CHAMPUS morbid obesity benefit is limited
to the gastric bypass, gastric stapling, or gastroplasty method.
(i) Conditions for coverage. Payment may be extended for the gastric
bypass, gastric stapling, or gastroplasty method only when one of the
following conditions is met:
(A) The patient is 100 pounds over the ideal weight for height and
bone structure and has an associated severe medical condition. These
associated medical conditions are diabetes mellitus,
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hypertension, cholecystitis, narcolepsy, pickwickian syndrome (and other
severe respiratory disease), hypothalmic disorders, and severe arthritis
of the weight-bearing joints.
(B) The patient is 200 percent or more of the ideal weight for
height and bone structure. An associated medical condition is not
required for this category.
(C) The patient has had an intestinal bypass or other surgery for
obesity and, because of complications, requires a second surgery (a
takedown). The surgeon in many cases, will do a gastric bypass, gastric
stapling, or gastroplasty to help the patient avoid regaining the weight
that was lost. In this situation, payment is authorized even though the
patient's condition technically may not meet the definition of morbid
obesity because of the weight that was already lost following the
initial surgery.
(ii) Exclusions. (A) CHAMPUS payment may not be made for nonsurgical
treatment of obesity or morbid obesity, for dietary control, or weight
reduction.
(B) CHAMPUS payment may not be made for surgical procedures other
than the gastric bypass, gastric stapling, or gastroplasty, even if
morbid obesity is present.
(16) Maternity care. (i) Benefit. The CHAMPUS Basic Program may
share the cost of medically necessary services and supplies associated
with maternity care which are not otherwise excluded by this part.
However, failure by a beneficiary to secure a required Nonavailability
Statement (NAS) (DD Form 1251) as set forth in paragraph (a)(9) of this
section will waive that beneficiary's right to CHAMPUS cost-share of
certain maternity care services and supplies.
(ii) Cost-share. Subject to applicable Nonavailability Statement
(NAS) requirements, maternity care cost-share shall be determined as
follows:
(A) Inpatient cost-share formula applies to maternity care ending in
childbirth in, or on the way to, a hospital inpatient childbirth unit,
and for maternity care ending in a non-birth outcome not otherwise
excluded by this part.
(B) Ambulatory surgery cost-share formula applies to maternity care
ending in childbirth in, or on the way to, a birthing center to which
the beneficiary is admitted and from which the beneficiary has received
prenatal care, or a hospital-based outpatient birthing room.
(C) Outpatient cost-share formula applies to maternity care which
terminates in a planned childbirth at home.
(D) Otherwise covered medical services and supplies directly related
to ``Complications of pregnancy,'' as defined in Sec. 199.2 of this
part, will be cost-shared on the same basis as the related maternity
care for a period not to exceed 42 days following termination of the
pregnancy and thereafter cost-shared on the basis of the inpatient or
outpatient status of the beneficiary when medically necessary services
and supplies are received.
(17) Biofeedback Therapy. Biofeedback therapy is a technique by
which a person is taught to exercise control over a physiologic process
occurring within the body. By using modern biomedical instruments the
patient learns how a specific physiologic system within his body
operates and how to modify the performance of this particular system.
(i) Benefits Provided. CHAMPUS benefits are payable for services and
supplies in connection with electrothermal, electromyograph and
electrodermal biofeedback therapy when there is documentation that the
patient has undergone an appropriate medical evaluation, that their
present condition is not responding to or no longer responds to other
forms of conventional treatment, and only when provided as treatment for
the following conditions:
(A) Adjunctive treatment for Raynaud's Syndrome.
(B) Adjunctive treatment for muscle re-education of specific muscle
groups or for treating pathological muscle abnormalities of spasticity,
or incapacitating muscle spasm or weakness.
(ii) Limitations. Payable benefits include initial intake
evaluation. Treatment following the initial intake evaluation is limited
to a maximum of 20 inpatient and outpatient biofeedback treatments per
calendar year.
(iii) Exclusions. Benefits are excluded for biofeedback therapy for
the treatment of ordinary muscle tension states
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or for psychosomatic conditions. Benefits are also excluded for the
rental or purchase of biofeedback equipment.
(iv) Provider Requirements. A provider of biofeedback therapy must
be a CHAMPUS-authorized provider. (Refer to Sec. 199.6, ``Authorized
Providers). If biofeedback treatment is provided by other than a
physician, the patient must be referred by a physician.
(v) Implementation Guidelines. The Director of OCHAMPUS shall issue
guidelines as are necessary to implement the provision of this
paragraph.
(18) Cardiac rehabilitation. Cardiac rehabilitation is the process
by which individuals are restored to their optimal physical, medical,
and psychological status, after a cardiac event. Cardiac rehabilitation
is often divided into three phases. Phase I begins during inpatient
hospitalization and is managed by the patient's personal physician.
Phase II is a medically supervised outpatient program which begins
following discharge. Phase III is a lifetime maintenance program
emphasizing continuation of physical fitness with periodic followup.
Each phase includes an exercise component, patient education, and risk
factor modification. There may be considerable variation in program
components, intensity, and duration.
(i) Benefits Provided. CHAMPUS benefits are available on an
inpatient or outpatient basis for services and supplies provided in
connection with a cardiac rehabilitation program when ordered by a
physician and provided as treatment for patients who have experienced
the following cardiac events within the preceding twelve (12) months:
(A) Myocardial Infarction.
(B) Coronary Artery Bypass Graft.
(C) Coronary Angioplasty.
(D) Percutaneous Transluminal Coronary Angioplasty
(E) Chronic Stable Angina (see limitations below).
(F) Heart valve surgery.
(G) Heart or Heart-lung Transplantation.
(ii) Limitations. Payable benefits include separate allowance for
the initial evaluation and testing. Outpatient treatment following the
initial intake evaluation and testing is limited to a maximum of thirty-
six (36) sessions per cardiac event, usually provided 3 sessions per
week for twelve (12) weeks. Patients diagnosed with chronic stable
angina are limited to one treatment episode (36 sessions) in a calendar
year.
(iii) Exclusions. Phase III cardiac rehabilitation lifetime
maintenance programs performed at home or in medically unsupervised
settings are not covered.
(iv) Providers. A provider of cardiac rehabilitation services must
be a CHAMPUS authorized hospital. (Refer to Section 199.6, ``Authorized
Providers.'') All cardiac rehabilitation services must be ordered by a
physician.
(v) Payment. Payment for outpatient treatment will be based on an
all inclusive allowable charge per session. Inpatient treatment will be
paid based upon the reimbursement system in place for the hospital where
the services are rendered.
(vi) Implementation Guidelines. The Director of OCHAMPUS shall issue
guidelines as are necessary to implement the provisions of this
paragraph.
(19) Hospice care. Hospice care is a program which provides an
integrated set of services and supplies designed to care for the
terminally ill. This type of care emphasizes palliative care and
supportive services, such as pain control and home care, rather than
cure-oriented services provided in institutions that are otherwise the
primary focus under CHAMPUS. The benefit provides coverage for a humane
and sensible approach to care during the last days of life for some
terminally ill patients.
(i) Benefit coverage. CHAMPUS beneficiaries who are terminally ill
(that is, a life expectancy of six months or less if the disease runs
its normal course) will be eligible for the following services and
supplies in lieu of most other CHAMPUS benefits:
(A) Physician services.
(B) Nursing care provided by or under the supervision of a
registered professional nurse.
(C) Medical social services provided by a social worker who has at
least a bachelor's degree from a school accredited or approved by the
Council on Social Work Education, and who is working under the direction
of a physician. Medical social services include, but are not limited to
the following:
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(1) Assessment of social and emotional factors related to the
beneficiary's illness, need for care, response to treatment, and
adjustment to care.
(2) Assessment of the relationship of the beneficiary's medical and
nursing requirements to the individual's home situation, financial
resources, and availability of community resources.
(3) Appropriate action to obtain available community resources to
assist in resolving the beneficiary's problem.
(4) Counseling services that are required by the beneficiary.
(D) Counseling services provided to the terminally ill individual
and the family member or other persons caring for the individual at
home. Counseling, including dietary counseling, may be provided both for
the purpose of training the individual's family or other care-giver to
provide care, and for the purpose of helping the individual and those
caring for him or her to adjust to the individual's approaching death.
Bereavement counseling, which consists of counseling services provided
to the individual's family after the individual's death, is a required
hospice service but it is not reimbursable.
(E) Home health aide services furnished by qualified aides and
homemaker services. Home health aides may provide personal care
services. Aides also may perform household services to maintain a safe
and sanitary environment in areas of the home used by the patient.
Examples of such services are changing the bed or light cleaning and
laundering essential to the comfort and cleanliness of the patient. Aide
services must be provided under the general supervision of a registered
nurse. Homemaker services may include assistance in personal care,
maintenance of a safe and healthy environment, and services to enable
the individual to carry out the plan of care. Qualifications for home
health aides can be found in 42 CFR 484.36.
(F) Medical appliances and supplies, including drugs and
biologicals. Only drugs that are used primarily for the relief of pain
and symptom control related to the individual's terminal illness are
covered. Appliances may include covered durable medical equipment, as
well as other self-help and personal comfort items related to the
palliation or management of the patient's condition while he or she is
under hospice care. Equipment is provided by the hospice for use in the
beneficiary's home while he or she is under hospice care. Medical
supplies include those that are part of the written plan of care.
Medical appliances and supplies are included within the hospice all-
inclusive rates.
(G) Physical therapy, occupational therapy and speech-language
pathology services provided for purposes of symptom control or to enable
the individual to maintain activities of daily living and basic
functional skills.
(H) Short-term inpatient care provided in a Medicare participating
hospice inpatient unit, or a Medicare participating hospital, skilled
nursing facility (SNF) or, in the case of respite care, a Medicaid-
certified nursing facility that additionally meets the special hospice
standards regarding staffing and patient areas. Services provided in an
inpatient setting must conform to the written plan of care. Inpatient
care may be required for procedures necessary for pain control or acute
or chronic symptom management. Inpatient care may also be furnished to
provide respite for the individual's family or other persons caring for
the individual at home. Respite care is the only type of inpatient care
that may be provided in a Medicaid-certified nursing facility. The
limitations on custodial care and personal comfort items applicable to
other CHAMPUS services are not applicable to hospice care.
(ii) Core services. The hospice must ensure that substantially all
core services are routinely provided directly by hospice employees;
i.e., physician services, nursing care, medical social services, and
counseling for individuals and care givers. Refer to paragraphs
(e)(19)(i)(A), (e)(19)(i)(B), (e)(19)(i)(C), and (e)(19)(i)(D) of this
section.
(iii) Non-core services. While non-core services (i.e., home health
aide services, medical appliances and supplies,
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drugs and biologicals, physical therapy, occupational therapy, speech-
language pathology and short-term inpatient care) may be provided under
arrangements with other agencies or organizations, the hospice must
maintain professional management of the patient at all times and in all
settings. Refer to paragraphs (e)(19)(i)(E), (e)(19)(i)(F),
(e)(19)(i)(G), and (e)(19)(i)(H) of this section.
(iv) Availability of services. The hospice must make nursing
services, physician services, and drugs and biologicals routinely
available on a 24-hour basis. All other covered services must be made
available on a 24-hour basis to the extent necessary to meet the needs
of individuals for care that is reasonable and necessary for the
palliation and management of the terminal illness and related condition.
These services must be provided in a manner consistent with accepted
standards of practice.
(v) Periods of care. Hospice care is divided into distinct periods/
episodes of care. The terminally ill beneficiary may elect to receive
hospice benefits for an initial period of 90 days, a subsequent period
of 90 days, a second subsequent period of 30 days, and a final period of
unlimited duration.
(vi) Conditions for coverage. The CHAMPUS beneficiary must meet the
following conditions/criteria in order to be eligible for the hospice
benefits and services referenced in paragraph (e)(19)(i) of this
section.
(A) There must be written certification in the medical record that
the CHAMPUS beneficiary is terminally ill with a life expectancy of six
months or less if the terminal illness runs its normal course.
(1) Timing of certification. The hospice must obtain written
certification of terminal illness for each of the election periods
described in paragraph (e)(19(vi)(B) of this section, even if a single
election continues in effect for two, three or four periods.
(i) Basic requirement. Except as provided in paragraph
(e)(19(vi)(A)(1)(ii) of this section the hospice must obtain the written
certification no later than two calendar days after the period begins.
(ii) Exception. For the initial 90-day period, if the hospice cannot
obtain the written certifications within two calendar days, it must
obtain oral certifications within two calendar days, and written
certifications no later than eight calendar days after the period
begins.
(2) Sources of certification. Physician certification is required
for both initial and subsequent election periods.
(i) For the initial 90-day period, the hospice must obtain written
certification statements (and oral certification statements if required
under paragraph (e)(19(vi)(A)(i)(ii) of this section) from:
(A) The individual's attending physician if the individual has an
attending physician; and
(B) The medical director of the hospice or the physician member of
the hospice interdisciplinary group.
(ii) For subsequent periods, the only requirement is certification
by one of the physicians listed in paragraph (e)(19)(vi)(A)(2)(i)(B) of
this section.
(B) The terminally ill beneficiary must elect to receive hospice
care for each specified period of time; i.e., the two 90-day periods, a
subsequent 30-day period, and a final period of unlimited duration. If
the individual is found to be mentally incompetent, his or her
representative may file the election statement. Representative means an
individual who has been authorized under State law to terminate medical
care or to elect or revoke the election of hospice care on behalf of a
terminally ill individual who is found to be mentally incompetent.
(1) The episodes of care must be used consecutively; i.e., the two
90-day periods first, then the 30-day period, followed by the final
period. The periods of care may be elected separately at different
times.
(2) The initial election will continue through subsequent election
periods without a break in care as long as the individual remains in the
care of the hospice and does not revoke the election.
(3) The effective date of the election may begin on the first day of
hospice care or any subsequent day of care, but the effective date
cannot be made prior to the date that the election was made.
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(4) The beneficiary or representative may revoke a hospice election
at any time, but in doing so, the remaining days of that particular
election period are forfeited and standard CHAMPUS coverage resumes. To
revoke the hospice benefit, the beneficiary or representative must file
a signed statement of revocation with the hospice. The statement must
provide the date that the revocation is to be effective. An individual
or representative may not designate an effective date earlier than the
date that the revocation is made.
(5) If an election of hospice benefits has been revoked, the
individual, or his or her representative may at any time file a hospice
election for any period of time still available to the individual, in
accordance with Sec. 199.4(e)(19)(vi)(B).
(6) A CHAMPUS beneficiary may change, once in each election period,
the designation of the particular hospice from which he or she elects to
receive hospice care. To change the designation of hospice programs the
individual or representative must file, with the hospice from which care
has been received and with the newly designated hospice, a statement
that includes the following information:
(i) The name of the hospice from which the individual has received
care and the name of the hospice from which he or she plans to receive
care.
(ii) The date the change is to be effective.
(7) Each hospice will design and print its own election statement to
include the following information:
(i) Identification of the particular hospice that will provide care
to the individual.
(ii) The individual's or representative's acknowledgment that he or
she has been given a full understanding of the palliative rather than
curative nature of hospice care, as it relates to the individual's
terminal illness.
(iii) The individual's or representative's acknowledgment that he or
she understands that certain other CHAMPUS services are waived by the
election.
(iv) The effective date of the election.
(v) The signature of the individual or representative, and the date
signed.
(8) The hospice must notify the CHAMPUS contractor of the
initiation, change or revocation of any election.
(C) The beneficiary must waive all rights to other CHAMPUS payments
for the duration of the election period for:
(1) Care provided by any hospice program other than the elected
hospice unless provided under arrangements made by the elected hospice;
and
(2) Other CHAMPUS basic program services/benefits related to the
treatment of the terminal illness for which hospice care was elected, or
to a related condition, or that are equivalent to hospice care, except
for services provided by:
(i) The designated hospice;
(ii) Another hospice under arrangement made by the designated
hospice; or
(iii) An attending physician who is not employed by or under
contract with the hospice program.
(3) Basic CHAMPUS coverage will be reinstated upon revocation of the
hospice election.
(D) A written plan of care must be established by a member of the
basic interdisciplinary group assessing the patient's needs. This group
must have at least one physician, one registered professional nurse, one
social worker, and one pastoral or other counselor.
(1) In establishing the initial plan of care the member of the basic
interdisciplinary group who assesses the patient's needs must meet or
call at least one other group member before writing the initial plan of
care.
(2) At least one of the persons involved in developing the initial
plan must be a nurse or physician.
(3) The plan must be established on the same day as the assessment
if the day of assessment is to be a covered day of hospice care.
(4) The other two members of the basic interdisciplinary group--the
attending physician and the medical director or physician designee--must
review the initial plan of care and provide their input to the process
of establishing the plan of care within two calendar days following the
day of assessment. A meeting of group members is not required within
this 2-day period. Input may be provided by telephone.
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(5) Hospice services must be consistent with the plan of care for
coverage to be extended.
(6) The plan must be reviewed and updated, at intervals specified in
the plan, by the attending physician, medical director or physician
designee and interdisciplinary group. These reviews must be documented
in the medical records.
(7) The hospice must designate a registered nurse to coordinate the
implementation of the plan of care for each patient.
(8) The plan must include an assessment of the individual's needs
and identification of the services, including the management of
discomfort and symptom relief. It must state in detail the scope and
frequency of services needed to meet the patient's and family's needs.
(E) Complete medical records and all supporting documentation must
be submitted to the CHAMPUS contractor within 30 days of the date of its
request. If records are not received within the designated time frame,
authorization of the hospice benefit will be denied and any prior
payments made will be recouped. A denial issued for this reason is not
an initial determination under Sec. 199.10, and is not appealable.
(vii) Appeal rights under hospice benefit. A beneficiary or provider
is entitled to appeal rights for cases involving a denial of benefits in
accordance with the provisions of this part and Sec. 199.10.
(20) Case management services. As part of case management for
beneficiaries with complex medical or psychological conditions, payment
for services or supplies not otherwise covered by the basic CHAMPUS/
TRICARE program may be authorized when they are provided in accordance
with Sec. 199.4(i). Waiver of benefit limits/exclusions to the basic
CHAMPUS/TRICARE program may be cost shared where it is demonstrated that
the absence of such services would result in the exacerbation of an
existing extraordinary condition, as defined in Sec. 199.2, to the
extent that frequent or extensive services are required; and such
services are a cost effective alternative to the Basic CHAMPUS program.
(f) Beneficiary or sponsor liability-- (1) General. As stated in the
introductory paragraph to this section, the Basic Program is essentially
a supplemental program to the Uniformed Services direct medical care
system. To encourage use of the Uniformed Services direct medical care
system wherever its facilities are available and appropriate, the Basic
Program benefits are designed so that it is to the financial advantage
of a CHAMPUS beneficiary or sponsor to use the direct medical care
system. When medical care is received from civilian sources, a CHAMPUS
beneficiary is responsible for payment of certain deductible and cost-
sharing amounts in connection with otherwise covered services and
supplies. By statute, this joint financial responsibility between the
beneficiary or sponsor and CHAMPUS is more favorable for dependents of
members than for other classes of beneficiaries.
(2) Dependents of members of the Uniformed Services. CHAMPUS
beneficiary or sponsor liability set forth for dependents of members is
as follows:
(i) Annual fiscal year deductible for outpatient services and
supplies.
(A) For care rendered all eligible beneficiaries prior to April 1,
1991, or when the active duty sponsor's pay grade is E-4 or below,
regardless of the date of care:
(1) Individual Deductible: Each beneficiary is liable for the first
fifty dollars ($50.00) of the CHAMPUS-determined allowable amount on
claims for care provided in the same fiscal year.
(2) Family Deductible: The total deductible amount for all members
of a family with the same sponsor during one fiscal year shall not
exceed one hundred dollars ($100.00).
(B) For care rendered on or after April 1, 1991, for all CHAMPUS
beneficiaries except dependents of active duty sponsors in pay grades E-
4 or below.
(1) Individual Deductible: Each beneficiary is liable for the first
one hundred and fifty dollars ($150.00) of the CHAMPUS-determined
allowable amount on claims for care provided in the same fiscal year.
(2) Family Deductible: The total deductible amount for all members
of a family with the same sponsor during
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one fiscal year shall not exceed three hundred dollars ($300.00).
(C) CHAMPUS-approved Ambulatory Surgical Centers or Birthing
Centers. No deductible shall be applied to allowable amounts for
services or items rendered to active duty for authorized NATO
dependents.
(D) Allowable Amount does not exceed Deductible Amount. If fiscal
year allowable amounts for two or more beneficiary members of a family
total less than $100.00 ($300.00 if paragraph (f) (2)(i)(B)(2) of this
section applies), but more of the beneficiary members submit a claim for
over $50.00 ($150.00 if paragraph (f)(2)(i)(B)(1) of this section
applies), neither the family nor the individual deductible will have
been met and no CHAMPUS benefits are payable.
(E) For any family the outpatient deductible amounts will be applied
sequentially as the CHAMPUS claims are processed.
(F) If the fiscal year outpatient deductible under either paragraphs
(f)(2)(i)(A) or (f)(2)(i)(B) of this section has been met by a
beneficiary or a family through the submission of a claim or claims to a
CHAMPUS fiscal intermediary in another geographic location from the
location where a current claim is being submitted, the beneficiary or
sponsor must obtain a deductible certificate from the CHAMPUS fiscal
intermediary where the applicable beneficiary or famiy fiscal year
deductible was met. Such deductible certificate must be attached to the
current claim being submitted for benefits. Failure to obtain a
deductible certificate under such circumstances will result in a second
beneficiary or family fiscal year deductible being applied. However,
this second deductible may be reimbursed once appropriate documentation,
as described in paragraph (f)(2)(i)(F) of this section, is supplied to
the CHAMPUS fiscal intermediary applying the second deductible.
(G) Notwithstanding the dates specified in paragraphs (f)(2)(i)(A)
and (f)(B)(2)(i) of this section in the case of dependents of active
duty members of rank E-5 or above with Persian Gulf Conflict service,
dependents of service members who were killed in the Gulf, or who died
subsequent to Gulf service, and of members who retired prior to October
1, 1991, after having served in the Gulf War, the deductible shall be
the amount specified in paragraph (f)(2)(i)(A) of this section for care
rendered prior to October 1, 1991, and the amount specified in paragraph
(f)(2)(i)(B) of this section for care rendered on or after October 1,
1991.
(ii) Inpatient cost-sharing. Dependents of members of the Uniformed
Services are responsible for the payment of the first $25 of the
allowable institutional costs incurred with each covered inpatient
admission to a hospital or other authorized institutional provider
(refer to Sec. 199.6 of the part), or the amount the beneficiary or
sponsor would have been charged had the inpatient care been provided in
a Uniformed Service hospital, whichever is greater.
Note: The Secretary of Defense (after consulting with the Secretary
of Health and Human Services and the Secretary of Transportation)
prescribes the fair charges for inpatient hospital care provided through
Uniformed Services medical facilities. This determination is made each
fiscal year.
(A) Inpatient cost-sharing payable with each separate inpatient
admission. A separate cost-sharing amount (as described in paragraph
(f)(2) of this section) is payable for each inpatient admission to a
hospital or other authorized institution, regardless of the purpose of
the admission (such as medical or surgical), regardless of the number of
times the beneficiary is admitted, and regardless of whether or not the
inpatient admissions are for the same or related conditions; except that
successive inpatient admissions shall be deemed one inpatient
confinement for the purpose of computing the inpatient cost-share
payable, provided not more than 60 days have elapsed between the
successive admissions. However, notwithstanding this provision, all
admissions related to a single maternity episode shall be considered one
confinement, regardless of the number of days between admissions (refer
to paragraph (b) of this section).
(B) Multiple family inpatient admissions. A separate cost-sharing
amount is payable for each inpatient admission, regardless of whether or
not two or more beneficiary members of a family are admitted at the same
time or
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from the same cause (such as an accident). A separate beneficiary
inpatient cost-sharing amount must be applied for each separate
admission on each beneficiary member of the family.
(C) Newborn patient in his or her own right. When a newborn infant
remains as an inpatient in his or her own right (usually after the
mother is discharged), the newborn child becomes the beneficiary and
patient and the extended inpatient stay becomes a separate inpatient
admission. In such a situation, a new, separate inpatient cost-sharing
amount is applied. If a multiple birth is involved (such as twins or
triplets) and two or more newborn infants become patients in their own
right, a separate inpatient cost-sharing amount must be applied to the
inpatient stay for each newborn child who has remained as an inpatient
in his or her own right.
(D) Inpatient cost-sharing for mental health services. For care
provided on or after October 1, 1995, the inpatient cost-sharing for
mental health services is $20 per day for each day of the inpatient
admission. This $20 per day cost sharing amount applies to admissions to
any hospital for mental health services, any residential treatment
facility, any substance abuse rehabilitation facility, and any partial
hospitalization program providing mental health or substance use
disorder rehabilitation services.
(iii) Outpatient cost-sharing. Dependents of members of the
Uniformed Services are responsible for payment of 20 percent of the
CHAMPUS-determined allowable cost or charge beyond the annual fiscal
year deductible amount (as described in paragraph (f)(2)(i) of this
section) for otherwise covered services or supplies provided on an
outpatient basis by authorized providers.
(iv) Ambulatory surgery. Notwithstanding the above provisions
pertaining to outpatient cost-sharing, dependents of members of the
Uniformed Services are responsible for payment of $25 for surgical care
that is authorized and received while in an outpatient status and that
has been designated in guidelines issued by the Director, OCHAMPUS, or a
designee.
(v) Psychiatric partial hospitalization services. Institutional and
professional services provided under the psychiatric partial
hospitalization program authorized by paragraph (b)(10) of this section
shall be cost shared as inpatient services.
(3) Former members and dependents of former members. CHAMPUS
beneficiary liability set forth for former members and dependents of
former members is as follows:
(i) Annual fiscal year deductible for outpatient services or
supplies. The annual fiscal year deductible for otherwise covered
outpatient services or supplies provided former members and dependents
of former members is the same as the annual fiscal year outpatient
deductible applicable to dependents of active duty members of rank E-5
or above (refer to paragraph (f)(2)(i)(A) or (B) of this section).
(ii) Inpatient cost-sharing. Cost-sharing amounts for inpatient
services shall be as follows:
(A) Services subject to the CHAMPUS DRG-based payment system. The
cost-share shall be the lesser of: an amount calculated by multiplying a
per diem amount by the total number of days in the hospital stay except
the day of discharge; or 25 percent of the hospital's billed charges.
The per diem amount shall be calculated so that, in the aggregate, the
total cost-sharing amounts for these beneficiaries is equivalent to 25
percent of the CHAMPUS-determined allowable costs for covered services
or supplies provided on an inpatient basis by authorized providers. The
per diem amount shall be published annually by OCHAMPUS.
(B) Services subject to the CHAMPUS mental health per diem payment
system. The cost-share is dependent upon whether the hospital is paid a
hospital-specific per diem or a regional per diem under the provisions
of Sec. 199.14(a)(2). With respect to care paid for on the basis of a
hospital specific per diem, the cost-share shall be 25% of the hospital-
specific per diem amount. For care paid for on the basis of a regional
per diem, the cost share shall be the lower of a fixed daily amount or
25% of the hospital's billed charges. The fixed daily amount shall be 25
percent of the
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per diem adjusted so that total beneficiary cost shares will equal 25
percent of total payments under the mental health per diem payment
system. These fixed daily amount shall be updated annually and published
in the Federal Register along with the per diems published pursuant to
Sec. 199.14(a)(2)(iv)(B).
(C) Other services. For services exempt from the CHAMPUS DRG-based
payment system and the CHAMPUS mental health per diem payment system and
services provided by institutions other than hospitals, the cost-share
shall be 25% of the CHAMPUS-determined allowable charges.
(iii) Outpatient cost-sharing. Former members and dependents of
former members are responsible for payment of 25 percent of the CHAMPUS-
determined allowable costs or charges beyond the annual fiscal year
deductible amount (as described in paragraph (f)(2)(i) of this section)
for otherwise covered services or supplies provided on an outpatient
basis by authorized providers.
(iv) Psychiatric partial hospitalization services. Institutional and
professional services provided under the psychiatric partial
hospitalization program authorized by paragraph (b)(10) of this section
shall be cost shared as inpatient services.
(4) Former spouses. CHAMPUS beneficiary liability for former spouses
eligible under the provisions set forth in Sec. 199.3 of this part is
as follows:
(i) Annual fiscal year deductible for outpatient services or
supplies. An eligible former spouse is responsible for the payment of
the first $150.00 of the CHAMPUS-determined reasonable costs or charges
for otherwise covered outpatient services or supplies provided in any
one fiscal year. (Except for services received prior to April 1, 1991,
the deductible amount is $50.00). The former spouse cannot contribute
to, nor benefit from, any family deductible of the member or former
member to whom the former spouse was married or of any CHAMPUS-eligible
children.
(ii) Inpatient cost-sharing. Eligible former spouses are responsible
for payment of cost-sharing amounts the same as those required for
former members and dependents of former members.
(iii) Outpatient cost-sharing. Eligible former spouses are
responsible for payment of 25 percent of the CHAMPUS-determined
reasonable costs or charges beyond the annual fiscal year deductible
amount for otherwise covered services or supplies provided on an
outpatient basis by authorized providers.
(5) Cost-Sharing under the Military-Civilian Health Services
Partnership Program. Cost-sharing is dependent upon the type of
partnership program entered into, whether external or internal. (See
paragraph (p) of Sec. 199.1, for general requirements of the Military-
Civilian Health Services Partnership Program.)
(i) External Partnership Agreement. Authorized costs associated with
the use of the civilian facility will be financed through CHAMPUS under
the normal cost-sharing and reimbursement procedures applicable under
CHAMPUS.
(ii) Internal Partnership Agreement. Beneficiary cost-sharing under
internal agreements will be the same as charges prescribed for care in
military treatment facilities.
(6)-(7) [Reserved]
(8) Cost-sharing for services provided under special discount
arrangements--(i) General rule. With respect to services determined by
the Director, OCHAMPUS (or designee) to be covered by Sec. 199.14(i),
the Director, OCHAMPUS (or designee) has authority to establish, as an
exception to the cost-sharing amount normally required pursuant to this
section, a different cost-share amount that appropriately reflects the
application of the statutory cost-share to the discount arrangement.
(ii) Specific applications. The following are examples of
applications of the general rule; they are not all inclusive.
(A) In the case of services provided by individual health care
professionals and other noninstitutional providers, the cost-share shall
be the usual percentage of the CHAMPUS allowable charge determined under
Sec. 199.14(i).
(B) In the case of services provided by institutional providers
normally paid on the basis of a pre-set amount (such as DRG-based amount
under
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Sec. 199.14(a)(1) or per-diem amount under Sec. 199.14(a)(2)), if the
discount rate is lower than the pre-set rate, the cost-share amount that
would apply for a beneficiary other than an active duty dependent
pursuant to the normal pre-set rate would be reduced by the same
percentage by which the pre-set rate was reduced in setting the discount
rate.
(9) Waiver of deductible amounts or cost-sharing not allowed--(i)
General rule. Because deductible amounts and cost sharing are
statutorily mandated, except when specifically authorized by law (as
determined by the Director, OCHAMPUS), a provider may not waive or
forgive beneficiary liability for annual deductible amounts or inpatient
or outpatient cost sharing, as set forth in this section.
(ii) Exception for bad debts. This general rule is not violated in
cases in which a provider has made all reasonable attempts to effect
collection, without success, and determines in accordance with generally
accepted fiscal management standards that the beneficiary liability in a
particular case is an uncollectible bad debt.
(iii) Remedies for noncompliance. Potential remedies for
noncompliance with this requirement include:
(A) A claim for services regarding which the provider has waived the
beneficiary's liability may be disallowed in full, or, alternatively,
the amount payable for such a claim may be reduced by the amount of the
beneficiary liability waived.
(B) Repeated noncompliance with this requirement is a basis for
exclusion of a provider.
(10) Catastrophic loss protection for basic program benefits. Fiscal
year limits, or catastrophic caps, on the amounts beneficiaries are
required to pay are established as follows:
(i) Dependents of active duty members. The maximum family liability
is $1,000 for deductibles and cost-shares based on allowable charges for
Basic Program services and supplies received in a fiscal year.
(ii) All other beneficiaries. For all other categories of
beneficiary families (including those eligible under CHAMPVA) the fiscal
year cap is $3,000.
(iii) Payment after cap is met. After a family has paid the maximum
cost-share and deductible amounts (dependents of active duty members
$1,000 and all others $3,000), for a fiscal year, CHAMPUS will pay
allowable amounts for remaining covered services through the end of that
fiscal year.
Note to paragraph (f)(10):
Under the Defense Authorization Act for Fiscal Year 2001, the cap
for beneficiaries other than dependents of active duty members was
reduced from $7,500 to $3,000 effective October 30, 2000. Prior to this,
the Defense Authorization Act for Fiscal Year 1993 reduced this cap from
$10,000 to $7,500 on October 1, 1992. The cap remains at $1,000 for
dependents of active duty members.
(11) Beneficiary or sponsor liability under the Pharmacy Benefits
Program. Beneficiary or sponsor liability under the Pharmacy Benefits
Program is addressed in Sec. 199.21.
(g) Exclusions and limitations. In addition to any definitions,
requirements, conditions, or limitations enumerated and described in
other sections of this part, the following specifically are excluded
from the Basic Program:
(1) Not medically or psychologically necessary. Services and
supplies that are not medically or psychologically necessary for the
diagnosis or treatment of a covered illness (including mental disorder)
or injury, for the diagnosis and treatment of pregnancy or well-baby
care except as provided in the following paragraph.
(2) Unnecessary diagnostic tests. X-ray, laboratory, and
pathological services and machine diagnostic tests not related to a
specific illness or injury or a definitive set of symptoms except for
cancer screening mammography and cancer screening papanicolaou (PAP)
tests provided under the terms and conditions contained in the
guidelines adopted by the Director, OCHAMPUS.
(3) Institutional level of care. Services and supplies related to
inpatient stays in hospitals or other authorized institutions above the
appropriate level required to provide necessary medical care.
(4) Diagnostic admission. Services and supplies related to an
inpatient admission primarily to perform diagnostic tests, examinations,
and procedures that could have been and are performed routinely on an
outpatient basis.
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Note: If it is determined that the diagnostic x-ray, laboratory, and
pathological services and machine tests performed during such admission
were medically necessary and would have been covered if performed on an
outpatient basis, CHAMPUS benefits may be extended for such diagnostic
procedures only, but cost-sharing will be computed as if performed on an
outpatient basis.
(5) Unnecessary postpartum inpatient stay, mother or newborn.
Postpartum inpatient stay of a mother for purposes of staying with the
newborn infant (usually primarily for the purpose of breast feeding the
infant) when the infant (but not the mother) requires the extended stay;
or continued inpatient stay of a newborn infant primarily for purposes
of remaining with the mother when the mother (but not the newborn
infant) requires extended postpartum inpatient stay.
(6) Therapeutic absences. Therapeutic absences from an inpatient
facility, except when such absences are specifically included in a
treatment plan approved by the Director, OCHAMPUS, or a designee. For
cost-sharing provisions refer to Sec. 199.14, paragraph (f)(3).
(7) Custodial care. Custodial care except as otherwise specifically
provided in paragraphs (e)(12) (ii), (iii), and (iv) of this section.
(8) Domiciliary care. Inpatient stays primarily for domiciliary care
purposes.
(9) Rest or rest cures. Inpatient stays primarily for rest or rest
cures.
(10) Amounts above allowable costs or charges. Costs of services and
supplies to the extent amounts billed are over the CHAMPUS determined
allowable cost or charge, as provided for in Sec. 199.14.
(11) No legal obligation to pay, no charge would be made. Services
or supplies for which the beneficiary or sponsor has no legal obligation
to pay; or for which no charge would be made if the beneficiary or
sponsor was not eligible under CHAMPUS; or whenever CHAMPUS is a
secondary payer for claims subject to the CHAMPUS DRG-based payment
system, amounts, when combined with the primary payment, which would be
in excess of charges (or the amount the provider is obligated to accept
as payment in full, if it is less than the charges).
(12) Furnished without charge. Services or supplies furnished
without charge.
(13) Furnished by local, state, or Federal Government. Services and
supplies paid for, or eligible for payment, directly or indirectly by a
local, state, or Federal Government, except as provided under CHAMPUS,
or by government hospitals serving the general public, or medical care
provided by a Uniformed Service medical care facility, or benefits
provided under title XIX of the Social Security Act (Medicaid) (refer to
Sec. 199.8 of this part).
(14) Study, grant, or research programs. Services and supplies
provided as a part of or under a scientific or medical study, grant, or
research program.
(15) Unproven drugs, devices, and medical treatments or procedures.
By law, CHAMPUS can only cost-share medically necessary supplies and
services. Any drug, device, or medical treatment or procedure, the
safety and efficacy of which have not been established, as described in
this paragraph (g)(15), is unproved and cannot be cost-shared by
CHAMPUS.
(i) A drug, device, or medical treatment or procedure is unproven:
(A) If the drug or device cannot be lawfully marketed without the
approval or clearance of the United States Food and Drug Administration
(FDA) and approval or clearance for marketing has not been given at the
time the drug or device is furnished to the patient.
Note: Although the use of drugs and medicines not approved by the
FDA for commercial marketing, that is for use by humans, (even though
permitted for testing on humans) is excluded from coverage as unproven,
drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938
may be covered by CHAMPUS as if FDA approved.
Certain cancer drugs, designated as Group C drugs (approved and
distributed by the National Cancer Institute) and Treatment
Investigational New Drugs (INDs), are not covered under CHAMPUS because
they are not approved for commercial marketing by the FDA. However,
medical care related to the use of Group C drugs and Treatment INDs can
be cost-shared under CHAMPUS when the patient's medical condition
warrants their administration and the care is provided in accordance
with generally accepted standards of medical practice.
[[Page 141]]
CHAMPUS can also consider coverage of unlabeled or off-label uses of
drugs that are Food and Drug Administration (FDA) approved drugs that
are used for indications or treatments not included in the approved
labeling. Approval for reimbursement of unlabeled or off-label uses
requires review for medical necessity, and also requires demonstrations
from medical literature, national organizations, or technology
assessment bodies that the unlabeled or off-label use of the drug is
safe, effective and in accordance with nationally accepted standards of
practice in the medical community.
(B) If a medical device (as defined by 21 U.S.C. 321(h)) with an
Investigational Device Exemption (IDE) approved by the Food and Drug
Administration is categorized by the FDA as experimental/investigational
(FDA Category A).
Note: CHAMPUS will consider for coverage a device with an FDA-
approved IDE categorized by the FDA as non-experimental/investigational
(FDA Category B) for CHAMPUS beneficiaries participating in FDA approved
clinical trials. Coverage of any such Category B device is dependent on
its meeting all other requirements of the laws and rules governing
CHAMPUS and upon the beneficiary involved meeting the FDA-approved IDE
study protocols.
(C) Unless reliable evidence shows that any medical treatment or
procedure has been the subject of well-controlled studies of clinically
meaningful endpoints, which have determined its maximum tolerated dose,
its toxicity, its safety, and its efficacy as compared with standard
means of treatment or diagnosis. (See the definition of reliable
evidence in Sec. 199.2 of this part for the procedures used in
determining if a medical treatment or procedure is unproven.)
(D) If reliable evidence shows that the consensus among experts
regarding the medical treatment or procedure is that further studies or
clinical trials are necessary to determine its maximum tolerated doses,
its toxicity, its safety, or its effectiveness as compared with the
standard means of treatment or diagnosis (see the definition of reliable
evidence in Sec. 199.2 for the procedures used in determining if a
medical treatment or procedure is unproven).
(ii) CHAMPUS benefits for rare diseases are reviewed on a case-by-
case basis by the Director, Office of CHAMPUS, or a designee. In
reviewing the case, the Director, or a designee, may consult with any or
all of the following sources to determine if the proposed therapy is
considered safe and effective:
(A) Trials published in refereed medical literature.
(B) Formal technology assessments.
(C) National medical policy organization positions.
(D) National professional associations.
(E) National expert opinion organizations.
(iii) Care excluded. This exclusion from benefits includes all
services directly related to the unproven drug, device, or medical
treatment or procedure. However, CHAMPUS may cover services or supplies
when there is no logical or causal relationship between the unproven
drug, device or medical treatment or procedure and the treatment at
issue or where such a logical or causal relationship cannot be
established with a sufficient degree of certainty. This CHAMPUS coverage
is authorized in the following circumstances:
(A) Treatment that is not related to the unproven drug, device or
medical treatment or procedure; e.g., medically necessary in the absence
of the unproven treatment.
(B) Treatment which is necessary follow-up to the unproven drug,
device or medical treatment or procedure but which might have been
necessary in the absence of the unproven treatment.
(iv) Examples of unproven drugs, devices or medical treatments or
procedures. This paragraph (g)(15)(iv) consists of a partial list of
unproven drugs, devices or medical treatment or procedures. These are
excluded from CHAMPUS program benefits. This list is not all inclusive.
Other unproven drugs, devices or medical treatments or procedures, are
similarly excluded, although they do not appear on this partial list.
This partial list will be reviewed and updated periodically as new
information becomes available. With respect to any procedure included on
this partial list, if and when the Director, OCHAMPUS determines that
based on reliable evidence (as defined in section 199.2) such procedure
has proven medical effectiveness, the Director will initiate action
[[Page 142]]
to remove the procedure from this partial list of unproven drugs,
devices or medical treatment or procedures. From the date established by
the Director as the date the procedure has established proven medical
effectiveness until the date the regulatory change is made to remove the
procedures from the partial list of unproven drugs, devices or medical
treatment or procedures the Director, OCHAMPUS will suspend treatment of
the procedure as unproven drugs, devices, or medical treatments or
procedures. Following is the non-inclusive, partial list of unproven
drugs, devices or medical treatment or procedures, all of which are
excluded from CHAMPUS benefits:
(A) Radial keratotomy (refractive keratoplasty).
(B) Cellular therapy.
(C) Histamine therapy.
(D) Stem cell assay, a laboratory procedure which allows a
determination to be made of the type and dose of cancer chemotherapy
drugs to be used, based on in vitro analysis of their effects on cancer
cells taken from an individual.
(E) Topical application of oxygen.
(F) Immunotherapy for malignant disease, except when using drugs
approved by the FDA for this purpose.
(G) Prolotherapy, joint sclerotherapy, and ligamentous injections
with sclerosing agents.
(H) Transcervical block silicone plug.
(I) Whole body hyperthermia in the treatment of cancer.
(J) Portable nocturnal hypoglycemia detectors.
(K) Testosterone pellet implants in the treatment of females.
(L) Estradiol pellet implants.
(M) Epikeratophakia for treatment of aphakia and myopia.
(N) Bladder stimulators.
(O) Ligament replacement with absorbable copolymer carbon fiber
scaffold.
(P) Intraoperative radiation therapy.
(Q) Gastric bubble or balloon.
(R) Dorsal root entry zone (DREZ) thermocoagulation or
micorcoagulation neurosurgical procedure.
(S) Brain electrical activity mapping (BEAM).
(T) Topographic brain mapping (TBM) procedure.
(U) Ambulatory blood pressure monitoring.
(V) Bilateral carotoid body resection to relieve pulmonary system.
(W) Intracavitary administration of cisplatin for malignant disease.
(X) Cervicography.
(Y) In-home uterine activity monitoring for the purpose of
preventing preterm labor and/or delivery.
(Z) Sperm evaluation, hamster penetration test.
(AA) Transfer factor (TF).
(BB) Continuous ambulatory esophageal pH monitoring (CAEpHM) is
considered unproven for patients under age 12 for all indications, and
for patients over age 12 for sleep apnea.
(CC) Adrenal-to-brain transplantation for Parkinson's disease.
(DD) Videofluoroscopy evaluation in speech pathology.
(EE) Applied kinesiology.
(FF) Hair analysis to identify mineral deficiencies from the
chemical composition of the hair. Hair analysis testing may be
reimbursed when necessary to determine lead poisoning.
(GG) Iridology (links flaws in eye coloration with disease elsewhere
in the body).
(HH) Small intestinal bypass (jejunoileal bypass) for treatment of
morbid obesity.
(II) Biliopancreatic bypass.
(JJ) Gastric wrapping/gastric banding.
(KK) Calcium EAP/calcium orotate and selenium (also known as Nieper
therapy)--Involves inpatient care and use of calcium compounds and other
non-FDA approved drugs and special diets. Used for cancer, heart
disease, diabetes, and multiple sclerosis.
(LL) Percutaneous balloon valvuloplasty for mitral and tricuspid
valve stenosis.
(MM) Amniocentesis performed for ISO immunization to the ABO blood
antigens.
(NN) Balloon dilatation of the prostate.
(OO) Helium in radiosurgery.
(PP) Electrostimulation of salivary production in the treatment of
xerostomia secondary to Sjogren's syndrome.
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(QQ) Intraoperative monitoring of sensory evoked potentials (SEP).
To include visually evoked potentials, brainstem auditory evoked
response, somatosensory evoked potentials during spinal and orthopedic
surgery, and sensory evoked potentials monitoring of the sciatic nerve
during total hip replacement. Recording SEPs in unconscious head injured
patients to assess the status of the somatosensory system. The use of
SEPs to define conceptional or gestational age in preterm infants.
(RR) Autolymphocyte therapy (ALT) (immunotherapy used for treating
metastatic kidney cancer patients).
(SS) Radioimmunoguided surgery in the detection of cancer.
(TT) Gait analysis (also known as a walk study or electrodynogram)
(UU) Use of cerebellar stimulators/pacemakers for the treatment of
neurologic disorders.
(VV) Signal-averaged ECG.
(WW) Peri-urethal Teflon injections to manage urinary incontinence.
(XX) Extraoperative electrocorticography for stimulation and
recording
(YY) Quantitative computed tomography (QCT) for the detection and
monitoring of osteoporosis.
(ZZ) [Reserved]
(AAA) Percutaneous transluminal angioplasty in the treatment of
obstructive lesions of the carotoid, vertebral and cerebral arteries.
(BBB) Endoscopic third ventriculostomy.
(CCC) Holding therapy--Involves holding the patient in an attempt to
achieve interpersonal contact, and to improve the patient's ability to
concentrate on learning tasks.
(DDD) In utero fetal surgery.
(EEE) Light therapy for seasonal depression (also known as seasonal
affective disorder (SAD)).
(FFF) Dorsal column and deep brain electrical stimulation of
treatment of motor function disorder.
(GGG) Chelation therapy, except with products and for indications
approved by the FDA.
(HHH) All organ transplants except heart, heart-lung, lung, kidney,
some bone marrow, liver, liver-kidney, corneal, heart-valve, and kidney-
pancreas transplants for Type I diabetics with chronic renal failure who
require kidney transplants.
(III) Implantable infusion pumps, except for treatment of
spasticity, chronic intractable pain, and hepatic artery perfusion
chemotherapy for the treatment of primary liver cancer or metastic
colorectal liver cancer.
(JJJ) Services related to the candidiasis hypersensitivity syndrome,
yeast syndrome, or gastrointestinal candidiasis (i.e., allergenic
extracts of Candida albicans for immunotherapy and/or provocation/
neutralization).
(KKK) Treatment of chronic fatigue syndrome.
(LLL) Extracorporeal immunoadsorption using protein A columns for
conditions other than acute idopathic thrombocytopenia purpura.
(MMM) Dynamic posturography (both static and computerized).
(NNN) Laparoscopic myomectomy.
(OOO) Growth factor, including platelet-derived growth factors, for
treating non-healing wounds. This includes Procurene[reg], a
platelet-derived wound-healing formula.
(PPP) High dose chemotherapy with stem cell rescue (HDC/SCR) for any
of the following malignancies:
(1) Breast cancer, except for metastic breast cancer that has
relapsed after responding to a first line treatment.
(2) Ovarian cancer.
(3) Testicular cancer.
(16) Immediate family, household. Services or supplies provided or
prescribed by a member of the beneficiary's immediate family, or a
person living in the beneficiary's or sponsor's household.
(17) Double coverage. Services and supplies that are (or are
eligible to be) payable under another medical insurance or program,
either private or governmental, such as coverage through employment or
Medicare (refer to Sec. 199.8 of this part).
(18) Nonavailability Statement required. Services and supplies
provided under circumstances or in geographic locations requiring a
Nonavailability Statement (DD Form 1251), when such a statement was not
obtained.
(19) Preauthorization required. Services or supplies which require
preauthorization if preauthorization
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was not obtained. Services and supplies which were not provided
according to the terms of the preauthorization. The Director, OCHAMPUS,
or a designee, may grant an exception to the requirement for
preauthorization if the services otherwise would be payable except for
the failure to obtain preauthorization.
(20) Psychoanalysis or psychotherapy, part of education.
Psychoanalysis or psychotherapy provided to a beneficiary or any member
of the immediate family that is credited towards earning a degree or
furtherance of the education or training of a beneficiary or sponsor,
regardless of diagnosis or symptoms that may be present.
(21) Runaways. Inpatient stays primarily to control or detain a
runaway child, whether or not admission is to an authorized institution.
(22) Services or supplies ordered by a court or other government
agency. Services or supplies, including inpatient stays, directed or
agreed to by a court or other governmental agency. However, those
services and supplies (including inpatient stays) that otherwise are
medically or psychologically necessary for the diagnosis or treatment of
a covered condition and that otherwise meet all CHAMPUS requirements for
coverage are not excluded.
(23) Work-related (occupational) disease or injury. Services and
supplies required as a result of occupational disease or injury for
which any benefits are payable under a worker's compensation or similar
law, whether or not such benefits have been applied for or paid; except
if benefits provided under such laws are exhausted.
(24) Cosmetic, reconstructive, or plastic surgery. Services and
supplies in connection with cosmetic, reconstructive, or plastic surgery
except as specifically provided in paragraph (e)(8) of this section.
(25) Surgery, psychological reasons. Surgery performed primarily for
psychological reasons (such as psychogenic).
(26) Electrolysis.
(27) Dental care. Dental care or oral surgery, except as
specifically provided in paragraph (e)(10) of this section.
(28) Obesity, weight reduction. Services and supplies related to
obesity or weight reduction whether surgical or nonsurgical; wiring of
the jaw or any procedure of similar purpose, regardless of the
circumstances under which performed; except that benefits may be
provided for the gastric bypass, gastric stapling, or gastroplasty
procedures in connection with morbid obesity as provided in paragraph
(e)(15) of this section.
(29) Transsexualism or such other conditions as gender dysphoria.
Services and supplies related to transsexualism or such other conditions
as gender dysphoria (including, but not limited, to intersex surgery,
psychotherapy, and prescription drugs), except as specifically provided
in paragraph (e)(7) of this section.
(30) Therapy or counseling for sexual dysfunctions or sexual
inadequacies. Sex therapy, sexual advice, sexual counseling, sex
behavior modification, psychotherapy for mental disorders involving
sexual deviations (i.e., transvestic fetishm), or other similar
services, and any supplies provided in connection with therapy for
sexual dysfunctions or inadequacies.
(31) Corns, calluses, and toenails. Removal of corns or calluses or
trimming of toenails and other routine podiatry services, except those
required as a result of a diagnosed systemic medical disease affecting
the lower limbs, such as severe diabetes.
(32) Dyslexia.
(33) Surgical sterilization, reversal. Surgery to reverse surgical
sterilization procedures.
(34) Noncoital reproductive procedures including artifical
insemination, in-vitro fertilization, gamete intrafallopian transfer and
all other such reproductive technologies. Services and supplies related
to artificial insemination (including semen donors and semen banks), in-
vitro fertilization, gamete intrafallopian transfer and all other
noncoital reproductive technologies.
(35) Nonprescription contraceptives.
(36) Tests to determine paternity or sex of a child. Diagnostic
tests to establish paternity of a child; or tests to determine sex of an
unborn child.
(37) Preventive care. Preventive care, such as routine, annual, or
employment-requested physical examinations;
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routine screening procedures; except that the following are not
excluded:
(i) Well-child care.
(ii) Immunizations for individuals age six and older, as recommended
by the CDC.
(iii) Rabies shots.
(iv) Tetanus shot following an accidental injury.
(v) Rh immune globulin.
(vi) Genetic tests as specified in paragraph (e)(3)(ii) of this
section.
(vii) Immunizations and physical examinations provided when required
in the case of dependents of active duty military personnel who are
traveling outside the United States as a result of an active duty
member's assignment and such travel is being performed under orders
issued by a Uniformed Service.
(viii) Screening mammography for asymptomatic women 40 years of age
and older, and for high risk women 35 years of age and older, when
provided under the terms and conditions contained in the guidelines
adopted by the Deputy Assistant Secretary of Defense, Health Services
Financing.
(ix) Cancer screening Papanicolaou (PAP) test for women who are at
risk for sexually transmissible diseases, women who have or have had
multiple sexual partners (or if their partner has or has had multiple
sexual partners), women who smoke cigarettes, and women 18 years of age
and older when provided under the terms and conditions contained in the
guidelines adopted by the Deputy Assistant Secretary of Defense, Health
Services Financing.
(x) Other cancer screenings authorized by 10 U.S.C. 1079.
(xi) Health promotion and disease prevention visits (which may
include all of the services provided pursuant to Sec. 199.18(b)(2)) may
be provided in connection with immunizations and cancer screening
examinations authorized by paragraphs (g)(37)(ii) of this section or
(g)(37)(viii) through (x) of this section.
(xii) Physical examinations for beneficiaries ages 5 through 11 that
are required in connection with school enrollment, and that are provided
on or after October 30, 2000.
(38) Chiropractors and naturopaths. Services of chiropractors and
naturopaths whether or not such services would be eligible for benefits
if rendered by an authorized provider.
(39) Counseling. Counseling services that are not medically
necessary in the treatment of a diagnosed medical condition: For
example, educational counseling, vocational counseling, nutritional
counseling, and counseling for socioeconomic purposes, diabetic self-
education programs, stress management, lifestyle modification, etc.
Services provided by a certified marriage and family therapist, pastoral
or mental health counselor in the treatment of a mental disorder are
covered only as specifically provided in Sec. 199.6. Services provided
by alcoholism rehabilitation counselors are covered only when rendered
in a CHAMPUS-authorized treatment setting and only when the cost of
those services is included in the facility's CHAMPUS-determined
allowable cost rate.
(40) Acupuncture. Acupuncture, whether used as a therapeutic agent
or as an anesthetic.
(41) Hair transplants, wigs, or hairpieces.
Note: In accordance with section 744 of the DoD Appropriation Act
for 1981 (Pub. L. 96-527), CHAMPUS coverage for wigs or hairpieces is
permitted effective December 15, 1980, under the conditions listed
below. Continued availability of benefits will depend on the language of
the annual DoD Appropriation Acts.
(i) Benefits provided. Benefits may be extended, in accordance with
the CHAMPUS-determined allowable charge, for one wig or hairpiece per
beneficiary (lifetime maximum) when the attending physician certifies
that alopecia has resulted from treatment of a malignant disease and the
beneficiary certifies that a wig or hairpiece has not been obtained
previously through the U.S. Government (including the Veterans
Administration).
(ii) Exclusions. The wig or hairpiece benefit does not include
coverage for the following:
(A) Alopecia resulting from conditions other than treatment of
malignant disease.
(B) Maintenance, wig or hairpiece supplies, or replacement of the
wig or hairpiece.
[[Page 146]]
(C) Hair transplants or any other surgical procedure involving the
attachment of hair or a wig or hairpiece to the scalp.
(D) Any diagnostic or therapeutic method or supply intended to
encourage hair regrowth.
(42) Education or training. Self-help, academic education or
vocational training services and supplies, unless the provisions of
Sec. 199.4, paragraph (b)(1)(v) relating to general or special
education, apply.
(43) Exercise/relaxation/comfort devices. Exercise equipment, spas,
whirlpools, hot tubs, swimming pools, health club membership or other
such charges or items.
(44) Exercise. General exercise programs, even if recommended by a
physician and regardless of whether or not rendered by an authorized
provider. In addition, passive exercises and range of motion exercises
also are excluded, except when prescribed by a physician and rendered by
a physical therapist concurrent to, and as an integral part of, a
comprehensive program of physical therapy.
(45) Audiologist, speech therapist. Services of an audiologist or
speech therapist, except when prescribed by a physician and rendered as
a part of treatment addressed to the physical defect itself and not to
any educational or occupational deficit.
(46) Vision care. Eye exercises or visual training (orthoptics).
(47) Eye and hearing examinations. Eye and hearing examinations
except as specifically provided in paragraphs (c)(2)(xvi) and (c)(3)(xi)
of this section, or except when rendered in connection with medical or
surgical treatment of a covered illness or injury.
(48) Prosthetic devices. Prostheses other than those determined by
the Director, OCHAMPUS to be necessary because of significant conditions
resulting from trauma, congenital anomalies, or disease. All dental
prostheses are excluded, except for those specifically required in
connection with otherwise covered orthodontia directly related to the
surgical correction of a cleft palate anomaly.
(49) Orthopedic shoes. Orthopedic shoes, arch supports, shoe
inserts, and other supportive devices for the feet, including special-
ordered, custom-made built-up shoes, or regular shoes later built up.
(50) Eyeglasses. Eyeglasses, spectacles, contact lenses, or other
optical devices, except as specifically provided under paragraph (e)(6)
of this section.
(51) Hearing aids. Hearing aids or other auditory sensory enhancing
devices.
(52) Telephone services. Services or advice rendered by telephone
are excluded, except that a diagnostic or monitoring procedure which
incorporates electronic transmission of data or remote detection and
measurement of a condition, activity, or function (biotelemetry) is not
excluded when:
(i) The procedure without electronic transmission of data or
biotelemetry is otherwise an explicit or derived benefit of this
section; and
(ii) The addition of electronic transmission of data or biotelemetry
to the procedure is found by the Director, CHAMPUS, or designee, to be
medically necessary and appropriate medical care which usually improves
the efficiency of the management of a clinical condition in defined
circumstances; and
(iii) That each data transmission or biotelemetry device
incorporated into a procedure that is otherwise an explicit or derived
benefit of this section, has been classified by the U.S. Food and Drug
Administration, either separately or as a part of a system, for use
consistent with the defined circumstances in paragraph (g)(52)(ii) of
this section.
(53) Air conditioners, humidifiers, dehumidifiers, and purifiers.
(54) Elevators or chair lifts.
(55) Alterations. Alterations to living spaces or permanent features
attached thereto, even when necessary to accommodate installation of
covered durable medical equipment or to facilitate entrance or exit.
(56) Clothing. Items of clothing or shoes, even if required by
virtue of an allergy (such as cotton fabric as against synthetic fabric
and vegetable-dyed shoes).
(57) Food, food substitutes. Food, food substitutes, vitamins, or
other nutritional supplements, including those related to prenatal care.
[[Page 147]]
(58) Enuretic. Enuretic conditioning programs, but enuretic alarms
may be cost-shared when determined to be medically necessary in the
treatment of enuresis.
(59) [Reserved]
(60) Autopsy and postmortem.
(61) Camping. All camping even though organized for a specific
therapeutic purpose (such as diabetic camp or a camp for emotionally
disturbed children), and even though offered as a part of an otherwise
covered treatment plan or offered through a CHAMPUS-approved facility.
(62) Housekeeper, companion. Housekeeping, homemaker, or attendant
services; sitter or companion.
(63) Noncovered condition, unauthorized provider. All services and
supplies (including inpatient institutional costs) related to a
noncovered condition or treatment, or provided by an unauthorized
provider.
(64) Comfort or convenience. Personal, comfort, or convenience items
such as beauty and barber services, radio, television, and telephone.
(65) ``Stop smoking'' programs. Services and supplies related to
``stop smoking'' regimens.
(66) Megavitamin psychiatric therapy, orthomolecular psychiatric
therapy.
(67) Transportation. All transportation except by ambulance, as
specifically provided under paragraph (d), and except as authorized in
paragraph (e)(5) of this section.
(68) Travel. All travel even though prescribed by a physician and
even if its purpose is to obtain medical care, except as specified in
paragraph (a)(6) of this section in connection with a CHAMPUS-required
physical examination and as specified in Sec. 199.17(n)(2)(vi).
(69) Institutions. Services and supplies provided by other than a
hospital, unless the institution has been approved specifically by
OCHAMPUS. Nursing homes, intermediate care facilities, halfway houses,
homes for the aged, or institutions of similar purpose are excluded from
consideration as approved facilities under the Basic Program.
Note: In order to be approved under CHAMPUS, an institution must, in
addition to meeting CHAMPUS standards, provide a level of care for which
CHAMPUS benefits are payable.
(70)-(71) [Reserved]
(72) Inpatient mental health services. Effective for care received
on or after October 1, 1991, services in excess of 30 days in any fiscal
year (or in an admission), in the case of a patient nineteen years of
age or older, 45 days in any fiscal year (or in an admission) in the
case of a patient under 19 years of age, or 150 days in any fiscal year
(or in an admission) in the case of inpatient mental health services
provided as residential treatment care, unless coverage for such
services is granted by a waiver by the Director, OCHAMPUS, or a
designee. In cases involving the day limitations, waivers shall be
handled in accordance with paragraphs (b)(8) or (b)(9) of this section.
For services prior to October 1, 1991, services in excess of 60 days in
any calendar year unless additional coverage is granted by the Director,
OCHAMPUS, or a designee.
(73) Economic interest in connection with mental health admissions.
Inpatient mental health services (including both acute care and RTC
services) are excluded for care received when a patient is referred to a
provider of such services by a physician (or other health care
professional with authority to admit) who has an economic interest in
the facility to which the patient is referred, unless a waiver is
granted. Requests for waiver shall be considered under the same
procedure and based on the same criteria as used for obtaining
preadmission authorization (or continued stay authorization for
emergency admissions), with the only additional requirement being that
the economic interest be disclosed as part of the request. The same
reconsideration and appeals procedures that apply to day limit waivers
shall also apply to decisions regarding requested waivers of the
economic interest exclusion. However, a provider may appeal a
reconsidered determination that an economic relationship constitutes an
economic interest within the scope of the exclusion to the same extent
that a provider may appeal determinations under Sec. 199.15(i)(3). This
exclusion does not apply to services under the Program for Persons with
Disabilities (Sec. 199.5) or provided as partial hospital care. If a
situation arises where a decision is made to exclude CHAMPUS payment
solely on the basis of the provider's
[[Page 148]]
economic interest, the normal CHAMPUS appeals process will be available.
(74) Not specifically listed. Services and supplies not specifically
listed as a benefit in this part. This exclusion is not intended to
preclude extending benefits for those services or supplies specifically
determined to be covered within the intent of this part by the Director,
OCHAMPUS, or a designee, even though not otherwise listed.
Note: The fact that a physician may prescribe, order, recommend, or
approve a service or supply does not, of itself, make it medically
necessary or make the charge an allowable expense, even though it is not
listed specifically as an exclusion.
(h) Payment and liability for certain potentially excludable
services under the Peer Review Organization program--(1) Applicability.
This subsection provides special rules that apply only to services
retrospectively determined under the Peer Review organization (PRO)
program (operated pursuant to Sec. 199.15) to be potentially excludable
(in whole or in part) from the basic program under paragraph (g) of this
section. Services may be excluded by reason of being not medically
necessary (paragraph (g)(1) of this section), at an inappropriate level
(paragraph (g)(3) of this section), custodial care (paragraph (g)(7) of
this section) or other reason relative to reasonableness, necessity or
appropriateness (which services shall throughout the remainder of this
subsection, be referred to as ``not medically necessary''). (Also
throughout the remainder of the subsection, ``services'' includes items
and ``provider'' includes supplier). This paragraph does not apply to
coverage determinations made by OCHAMPUS or the fiscal intermediaries
which are not based on medical necessity determinations made under the
PRO program.
(2) Payment for certain potentially excludable expenses. Services
determined under the PRO program to be potentially excludable by reason
of the exclusions in paragraph (g) of this section for not medically
necessary services will not be determined to be excludable if neither
the beneficiary to whom the services were provided nor the provider
(institutional or individual) who furnished the services knew, or could
reasonably have been expected to know, that the services were subject to
those exclusions. Payment may be made for such services as if the
exclusions did not apply.
(3) Liability for certain excludable services. In any case in which
items or services are determined excludable by the PRO program by reason
of being not medically necessary and payment may not be made under
paragraph (h)(2) of this section because the requirements of paragraph
(h)(2) of this section are not met, the beneficiary may not be held
liable (and shall be entitled to a full refund from the provider of the
amount excluded and any cost share amount already paid) if:
(i) The beneficiary did not know and could not reasonably have been
expected to know that the services were excludable by reason of being
not medically necessary; and
(ii) The provider knew or could reasonably have been expected to
know that the items or services were excludable by reason of being not
medically necessary.
(4) Criteria for determining that beneficiary knew or could
reasonably have been expected to have known that services were
excludable. A beneficiary who receives services excludable by reason of
being not medically necessary will be found to have known that the
services were excludable if the beneficiary has been given written
notice that the services were excludable or that similar or comparable
services provided on a previous occasion were excludable and that notice
was given by the OCHAMPUS, CHAMPUS PRO or fiscal intermediary, a group
or committee responsible for utilization review for the provider, or the
provider who provided the services.
(5) Criteria for determining that provider knew or could reasonably
have been expected to have known that services were excludable. An
institutional or individual provider will be found to have known or been
reasonably expected to have known that services were excludable under
this subsection under any one of the following circumstances:
(i) The PRO or fiscal intermediary had informed the provider that
the services provided were excludable or that similar or reasonably
comparable services were excludable.
[[Page 149]]
(ii) The utilization review group or committee for an institutional
provider or the beneficiary's attending physician had informed the
provider that the services provided were excludable.
(iii) The provider had informed the beneficiary that the services
were excludable.
(iv) The provider had received written materials, including notices,
manual issuances, bulletins, guides, directives or other materials,
providing notification of PRO screening criteria specific to the
condition of the beneficiary. Attending physicians who are members of
the medical staff of an institutional provider will be found to have
also received written materials provided to the institutional provider.
(v) The services that are at issue are the subject of what are
generally considered acceptable standards of practice by the local
medical community.
(vi) Preadmission authorization was available but not requested, or
concurrent review requirements were not followed.
(i) Case management program. (1) In general. Case management, as it
applies to this program, provides a collaborative process among the case
manager, beneficiary, primary caregiver, professional health care
providers and funding sources to meet the medical needs of an individual
with an extraordinary condition. It is designed to promote quality and
cost-effective outcomes through assessment, planning, implementing,
monitoring and evaluating the options and services required. Payment for
services or supplies limited or not otherwise covered by the basic
TRICARE/CHAMPUS program may be authorized when they are provided in
accordance with paragraph (i) of this section. Waiver of benefit limits/
exclusions may be cost-shared where it is demonstrated that the absence
of such services would result in the exacerbation of an existing
extraordinary condition, as defined in Sec. 199.2, to the extent that
such services are a cost-effective alternative to the basic TRICARE/
CHAMPUS program.
(2) Applicability of case management program. A CHAMPUS eligible
beneficiary may participate in the case management program if he/she has
an extraordinary condition, which is disabling and requires extensive
utilization of TRICARE resources. The medical or psychological condition
must also:
(i) Be contained in the latest revision of the International
Classification of Diseases Clinical Modification, or the Diagnostic and
Statistical Manual of Mental Disorders;
(ii) Meet at least one of the following:
(A) Demonstrate a prior history of high CHAMPUS costs in the year
immediately preceding eligibility for the case management program; or
(B) Require clinically appropriate services or supplies from
multiple providers to address an extraordinary condition; and
(iii) Can be treated more appropriately and cost effectively at a
less intensive level of care.
(3) Prior authorization required. Services or supplies allowable as
a benefit exception under this Section shall be cost-shared only when a
beneficiary's entire treatment has received prior authorization through
an individual case management program.
(4) Cost effective requirement. Treatment must be determined to be
cost effective by comparison to alternative treatment that would
otherwise be required or when compared to existing reimbursement
methodology. Treatment must meet the requirements of appropriate medical
care as defined in Sec. 199.2.
(5) Limited waiver of exclusions and limitations. Limited waivers of
exclusions and limitations normally applicable to the basic program may
be granted for specific services or supplies only when a beneficiary's
entire treatment has received prior authorization through the individual
case management program described in paragraph (i) of this section. The
Director, OCHAMPUS may grant a patient-specific waiver of benefit limits
for services or supplies in the following categories, subject to the
waiver requirements of this section.
(i) Durable equipment. The cost of a device or apparatus which does
not qualify as Durable Medical Equipment (as defined in Sec. 199.2) or
back-up durable medical equipment may be shared
[[Page 150]]
when determined by the Director, OCHAMPUS to be cost-effective and
clinically appropriate.
(ii) Custodial care. The cost of services or supplies rendered to a
beneficiary that would otherwise be excluded as custodial care (as
defined in Sec. 199.2) may be cost-shared for a maximum lifetime period
of 365 days when determined by the Director, OCHAMPUS, to be cost
effective and clinically appropriate. To qualify for a waiver of benefit
limits of custodial care, the patient must meet all eligibility
requirements of paragraph (i) of this section, including that the
absence of the waived services would result in the exacerbation of an
existing extraordinary condition. In addition:
(A) The proposed treatment must be cost effective and clinically
appropriate as determined by the individual case manager. For example,
the treatment would be determined to be cost effective by comparison to
alternative care that would otherwise be required or when compared to
existing reimbursement methodology.
(B) For patients receiving care at home, there must be a primary
caregiver or the patient is capable of self-support.
(iii) Domiciliary care. The cost of services or supplies rendered to
be a beneficiary what would otherwise be excluded as domiciliary care
(as defined in Sec. 199.2) may be shared when determined by the
Director, OCHAMPUS to be cost effective and clinically appropriate.
Waivers for domiciliary care are subject to the same requirements as
paragraphs (i)(5)(ii) of this section.
(iv) In home services. The cost of the following in-home services
may be shared when determined by the Director, OCHAMPUS to be cost
effective and clinically appropriate: nursing care, physical,
occupational, speech therapy, medical social services, intermittent or
part-time services of a home health aide, beneficiary transportation
required for treatment plan implementation, and training for the
beneficiary and primary caregiver sufficient to allow them to assume all
feasible responsibility for the care of the beneficiary that will
facilitate movement of the beneficiary to the least resource-intensive,
clinically appropriate setting. (Qualifications for home health aides
shall be based on the standards at 42 CFR 848.36.)
(6) Case management acknowledgment. The beneficiary, or
representative, and the primary caregiver shall sign a case management
acknowledgment as a prerequisite to prior authorization of case
management services. The acknowledgment shall include, in part, all of
the following provisions:
(i) The right to participate fully in the development and ongoing
assessment of the treatment;
(ii) That all health care services for which TRICARE/CHAMPUS cost
sharing is sought shall be authorized by the case manager prior to their
delivery;
(iii) That there are limitations in scope and duration of the
planned case management treatment, including provisions to transition to
other arrangements; and
(iv) The conditions under which case management services are
provided, including the requirement that the services must be cost
effective and clinically appropriate;
(v) That a beneficiary's participation in the case management
program shall be discontinued for any of the following reasons:
(A) The loss of TRICARE/CHAMPUS eligibility;
(B) A determination that the services or supplies provided are not
cost effective or clinically appropriate;
(C) The beneficiary, or representative, and/or primary caregiver,
terminates participation in writing;
(D) The beneficiary and/or primary caregiver's failure to comply
with requirements in this paragraph (i); or
(E) A determination that the beneficiary's condition no longer meets
the requirements of participation as described in paragraph (i) of this
section.
(7) Other administrative requirements. (i) Qualified providers of
services or items not covered under the basic program, or who are not
otherwise eligible for TRICARE/CHAMPUS authorized status, may be
authorized for a time-limited period when such authorization is
essential to implement the planned treatment under case management. Such
providers must not be excluded or suspended as a CHAMPUS provider,
[[Page 151]]
must hold Medicare or state certification or licensure appropriate to
the service, and must agree to participate on all claims related to the
case management treatment.
(ii) Retrospective requests for authorization of waiver of benefit
limits/exclusions will not be considered. Authorization of waiver of
benefit limits/exclusions is allowed only after all other options for
services or supplies have been considered and either appropriately
utilized or determined to be clinically inappropriate and/or not cost-
effective.
(iii) Experimental or investigational treatment or procedures shall
not be cost-shared as an exception to standard benefits under this part.
(iv) TRICARE/CHAMPUS case management services may be provided by
contractors designated by the Director, OCHAMPUS.
[51 FR 24008, July 1, 1986]
Editorial Notes: For Federal Register citations affecting Sec.
199.4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Effective Date Note: At 67 FR 40602, June 13, 2002, Sec. 199.4 was
amended by redesignating paragraph (b)(3)(xiv) as (b)(3)(xv), adding new
paragraphs (b)(3)(xiv) and (e)(21), and removing and reserving
paragraphs (c)(2)(xv) and (c)(3)(xii), effective Aug. 12, 2002. For the
convenience of the user, the added text is set forth as follows:
Sec. 199.4 Basic program benefits.
(b) * * *
(3) * * *
(xiv) Skilled nursing facility (SNF) services. Covered services in
SNFs are the same as provided under Medicare under section 1861(h) and
(i) of the Social Security Act (42 U.S.C. 1395x(h) and (i)) and 42 CFR
part 409, subparts C and D, except that the Medicare limitation on the
number of days of coverage under section 1812(a) and (b) of the Social
Security Act (42 U.S.C. 1395d(a) and (b)) and 42 CFR 409.61(b) shall not
be applicable under TRICARE. Skilled nursing facility care for each
spell of illness shall continue to be provided for as long as necessary
and appropriate. For a SNF admission to be covered under TRICARE, the
beneficiary must have a qualifying hospital stay meaning an inpatient
hospital stay of three consecutive days or more, not including the
hospital leave day. The beneficiary must enter the SNF within 30 days of
leaving the hospital, or within such time as it would be medically
appropriate to begin an active course of treatment, where the
individual's condition is such that SNF care would not be medically
appropriate within 30 days after discharge from a hospital. The skilled
services must be for a medical condition that was either treated during
the qualifying three-day hospital stay, or started while the beneficiary
was already receiving covered SNF care. Additionally, an individual
shall be deemed not to have been discharged from a SNF, if within 30
days after discharge from a SNF, the individual is again admitted to a
SNF. Adoption by TRICARE of most Medicare coverage standards does not
include Medicare coinsurance amounts. Extended care services furnished
to an inpatient of a SNF by such SNF (except as provided in paragraphs
(b)(3)(xiv)(C), (b)(3)(xiv)(F), and (b)(3)(xiv)(G) of this section)
include:
(A) Nursing care provided by or under the supervision of a
registered professional nurse;
(B) Bed and board in connection with the furnishing of such nursing
care;
(C) Physical or occupational therapy or speech-language pathology
services furnished by the SNF or by others under arrangements with them
by the facility;
(D) Medical social services;
(E) Such drugs, biological, supplies, appliances, and equipment,
furnished for use in the SNF, as are ordinarily furnished for the care
and treatment of inpatients;
(F) Medical services provided by an intern or resident-in-training
of a hospital with which the facility has such an agreement in effect;
and
(G) Such other services necessary to the health of the patients as
are generally provided by SNFs, or by others under arrangements with
them made by the facility.
* * * * *
(e) * * *
(21) Home health services. Home health services are covered when
furnished by, or under arrangement with, a home health agency (HHA) that
participates in the TRICARE program, and provides care on a visiting
basis in the beneficiary's home. Covered HHA services are the same as
those provided under Medicare under section 1861(m) of the Social
Security Act (42 U.S.C. 1395x(m)) and 42 CFR part 409, subpart E.
(i) Benefit coverage. Coverage will be extended for the following
home health services subject to the conditions of coverage prescribed in
paragraph (e)(21)(ii) of this section:
(A) Part-time or intermittent skilled nursing care furnished by a
registered nurse or a licensed practical (vocational) nurse under the
supervision of a registered nurse;
(B) Physical therapy, speech-language pathology, and occupational
therapy;
[[Page 152]]
(C) Medical social services under the direction of a physician;
(D) Part-time or intermittent services of a home health aide who has
successfully completed a training program approved by the Director TMA;
(E) Medical supplies, a covered osteoporosis drug (as defined in the
Social Security Act 1861(kk), but excluding other drugs and biologicals)
and durable medical equipment;
(F) Medical services provided by an interim or resident-in-training
of a hospital, under an approved teaching program of the hospital in the
case of an HHA that is affiliated or under common control of a hospital;
and
(G) Services at hospitals, SNFs or rehabilitation centers when they
involve equipment too cumbersome to bring to the home but not including
transportation of the individual in connection with any such item or
service.
(ii) Conditions for Coverage. The following conditions/criteria must
be met in order to be eligible for the HHA benefits and services
referenced in paragraph (e)(21)(i) of this section:
(A) The person for whom the services are provided is an eligible
TRICARE beneficiary.
(B) The HHA that is providing the services to the beneficiary has in
effect a valid agreement to participate in the TRICARE program.
(C) Physician certifies the need for home health services because
the beneficiary is homebound.
(D) The services are provided under a plan of care established and
approved by a physician.
(1) The plan of care must contain all pertinent diagnoses, including
the patient's mental status, the types of services, supplies, and
equipment required, the frequency of visits to be made, prognosis,
rehabilitation potential, functional limitations, activities permitted,
nutritional requirements, all medications and treatments, safety
measures to protect against injury, instructions for timely discharge or
referral, and any additional items the HHA or physician chooses to
include.
(2) The orders on the plan of care must specify the type of services
to be provided to the beneficiary, both with respect to the professional
who will provide them and the nature of the individual services, as well
as the frequency of the services.
(E) The beneficiary must need skilled nursing care on an
intermittent basis or physical therapy or speech-language pathology
services, or have continued need for occupational therapy after the need
for skilled nursing care, physical therapy, or speech-language pathology
services has ceased.
(F) The beneficiary must receive, and an HHA must provide, a
patient-specific, comprehensive assessment that:
(1) Accurately reflects the patient's current health status and
includes information that may be used to demonstrate the patient's
progress toward achievement of desired outcomes;
(2) Identifies the beneficiary's continuing need for home care and
meets the beneficiary's medical, nursing, rehabilitative, social, and
discharge planning needs.
(3) Incorporates the use of the current version of the Outcome and
Assessment Information Set (OASIS) items, using the language and
groupings of the OASIS items, as specified by the Director, TRICARE
Management Activity.
(G) TRICARE is the appropriate payer.
(H) The services for which payment is claimed are not otherwise
excluded from payment.
(I) Any other conditions of coverage/participation that may be
required under Medicare's HHA benefit; i.e., coverage guidelines as
prescribed under Sections 1861(o) and 1891 of the Social Security Act
(42 U.S.C. 1395x(o) and 1395bbb) and 42 CFR Part 484.
* * * * *
Effective Date Note: At 67 FR 42720, June 25, 2002, Sec. 199.4 was
amended, effective July 25, 2002. The amendments are as follows:
a. Revise paragraph (d)(3)(v) introductory text preceding the Note;
b. Remove paragraph (d)(3)(v)(A);
c. Redesignate paragraphs (d)(3)(v)(B) through (d)(3)(v)(D) as
(d)(3)(v)(A) through (d)(3)(v)(C);
d. Revise newly designated paragraphs (d)(3)(v)(A) and (d)(3)(v)(C);
e. Revise paragraph (e)(5); and
f. Add paragraphs (e)(21).
The additions and revisions read as follows:
Sec. 199.4 Basic program benefits.
* * * * *
(d) * * *
(3) * * *
(v) Ambulance. Civilian ambulance service is covered when medically
necessary in connection with otherwise covered services and supplies and
a covered medical condition. For the purpose of TRICARE payment,
ambulance service is an outpatient service (including in connection with
maternity care) with the exception of otherwise covered transfers
between hospitals which are cost-shared on an inpatient basis. Ambulance
transfers from a hospital based emergency room to another hospital more
capable of
[[Page 153]]
providing the required care will also be cost-shared on an inpatient
basis.
* * * * *
(A) Ambulance service cannot be used instead of taxi service and is
not payable when the patient's condition would have permitted use of
regular private transportation; nor is it payable when transport or
transfer of a patient is primarily for the purpose of having the patient
nearer to home, family, friends, or personal physician. Except as
described in paragraph (d)(3)(v)(C)(1) of this section transport must be
to the closest appropriate facility by the least costly means.
* * * * *
(C) Except as described in paragraph (d)(3)(v)(C)(1)(1) of this
section, ambulance services by other than land vehicles (such as a boat
or airplane) may be considered only when the pickup point is
inaccessible by a land vehicle, or when great distance or other
obstacles are involved in transporting the patient to the nearest
hospital with appropriate facilities and the patient's medical condition
warrants speedy admission or is such that transfer by other means is
contraindicated.
(1) Advanced life support air ambulance and certified advanced life
support attendant are covered services for solid organ and stem cell
transplant candidates.
(2) Advanced life support air ambulance and certified advanced life
support attendant shall be reimbursed subject to standard reimbursement
methodologies.
* * * * *
(e) * * *
(5) Transplants. (i) Organ transplants. Basic Program benefits are
available for otherwise covered services or supplies in connection with
an organ transplant procedure, provided such transplant procedure is in
accordance with accepted professional medical standards and is not
considered unproven.
(A) General. (1) Benefits may be allowed for medically necessary
services and supplies related to an organ transplant for:
(i) Evaluation of potential candidate's suitability for an organ
transplant, whether or not the patient is ultimately accepted as a
candidate for transplant.
(ii) Pre- and post-transplant inpatient hospital and outpatient
services.
(iii) Pre- and post-operative services of the transplant team.
(iv) Blood and blood products.
(v) FDA approved immunosuppression drugs to include off-label uses
when determined to be medically necessary for the treatment of the
condition for which it is administered, according to accepted standards
of medical practice.
(vi) Complications of the transplant procedure, including inpatient
care, management of infection and rejection episodes.
(vii) Periodic evaluation and assessment of the successfully
transplanted patient.
(viii) The donor acquisition team, including the costs of
transportation to the location of the donor organ and transportation of
the team and the donated organ to the location of the transplant center.
(ix) The maintenance of the viability of the donor organ after all
existing legal requirements for excision of the donor organ have been
met.
(2) TRICARE benefits are payable for recipient costs when the
recipient of the transplant is a CHAMPUS beneficiary, whether or not the
donor is a CHAMPUS beneficiary.
(3) Donor costs are payable when:
(i) Both the donor and recipient are CHAMPUS beneficiaries.
(ii) The donor is a CHAMPUS beneficiary but the recipient is not.
(iii) The donor is the sponsor and the recipient is a CHAMPUS
beneficiary. (In such an event, donor costs are paid as a part of the
beneficiary and recipient costs.)
(iv) The donor is neither a CHAMPUS beneficiary nor a sponsor, if
the recipient is a CHAMPUS beneficiary. (Again, in such an event, donor
costs are paid as a part of the beneficiary and recipient costs.)
(4) If the donor is not a CHAMPUS beneficiary, TRICARE benefits for
donor costs are limited to those directly related to the transplant
procedure itself and do not include any medical care costs related to
other treatment of the donor, including complications.
(5) TRICARE benefits will not be allowed for transportation of an
organ donor.
(B) [Reserved]
(ii) Stem cell transplants. TRICARE benefits are payable for
beneficiaries whose conditions are considered appropriate for stem cell
transplant according to guidelines adopted by the Executive Director,
TMA, or a designee.
* * * * *
(21) Pulmonary rehabilitation. TRICARE benefits are payable for
beneficiaries whose conditions are considered appropriate for pulmonary
rehabilitation according to guidelines adopted by the Executive
Director, TMA, or a designee.
[[Page 154]]
Sec. 199.5 Program for Persons with Disabilities (PFPWD).
(a) General. This PFPWD provides financial assistance for certain
CHAMPUS beneficiaries who are moderately or severely mentally retarded,
or seriously physically disabled. The PFPWD is not intended to be a
stand alone benefit.
(1) Purpose. The primary purpose of the PFPWD is to assist in
reducing the disabling effects of a PFPWD qualifying condition.
(2) Benefit source election. A PFPWD beneficiary (or sponsor or
guardian acting on behalf of the beneficiary) may elect to use the
provisions of either this section, or the provisions of Sec. 199.4, for
a specific service or item which is allowable by both sections.
(i) Election limitation. No amount for authorized, or otherwise
allowed, PFPWD services or items remaining after the maximum PFPWD
benefit dollar amount has been reached in a given month may be cost-
shared through the provisions of Sec. 199.4.
(ii) Election change. A beneficiary (or sponsor or guardian acting
on behalf of the beneficiary) shall have the right to request the
Director, OCHAMPUS, or designee, to allow PFPWD cost-shared services or
items otherwise allowable as a benefit of Sec. 199.4, and which were
rendered after the catastrophic loss protection provision applicable to
Sec. 199.4 was in effect for a given PFPWD beneficiary's sponsor, to be
readjudicated according to the provisions of Sec. 199.4. The Director,
OCHAMPUS, or designee, shall allow readjudication when the sponsor's
family's CHAMPUS benefit year cost-share liability would be reduced by
such readjudication. Such requests are subject to the claims filing
deadline provisions of Sec. 199.7. The determination regarding
readjudication is conclusive and may not be appealed.
(3) Application required. A beneficiary shall establish PFPWD
eligibility as a prerequisite to authorization or payment of any PFPWD
benefits. Subsequent review of the PFPWD qualifying condition to confirm
continued eligibility shall be made in accordance with the prognosis for
a change in severity such that the condition would not likely continue
to be a PFPWD qualifying condition.
(4) Benefit authorization. To establish whether a requested service
or item is a PFPWD benefit, the beneficiary (or sponsor or guardian
acting on the behalf of the beneficiary) shall provide such information
about how the requested benefit will contribute to confirming,
arresting, or reducing the disabling effects of the qualifying condition
as the Director, OCHAMPUS, or designee, determines necessary for benefit
adjudication.
(i) Written authorization. The Director, OCHAMPUS, or designee, may
require written authorization for any PFPWD category or type of service
or item as a prerequisite for adjudication of related claims.
(ii) Format. An authorization issued by the Director, OCHAMPUS, or
designee, shall specify, such description, dates, amounts, requirements,
limitations or information as necessary for exact identification of
approved benefits and efficient adjudication of resulting claims.
(iii) Valid period. An authorization for a PFPWD service or item
shall not exceed twelve consecutive months.
(iv) Authorization waiver. The Director, OCHAMPUS, or designee,
shall waive the requirement for a written CHAMPUS authorization for
rendered PFPWD services or items that, except for the absence of the
written CHAMPUS authorization, would be allowable as a PFPWD benefit.
(v) Public facility use. A PFPWD beneficiary residing within a
State, as defined in Sec. 199.2, must demonstrate that a public
facility, as defined in Sec. 199.2, funds, except funds administered
under a State plan for medical assistance under Title XIX of the Social
Security Act (Medicaid) is not available or adequate, as defined in
Sec. 199.2, to meet the qualifying condition related need.
(A) Equipment repair or maintenance for beneficiary owned equipment
shall be considered not available when the equipment is a type allowable
as a benefit.
(B) A beneficiary shall not be required to change the provider of
public facility funded therapy when public facility funding is depleted
during that beneficiary's course of therapy and
[[Page 155]]
when such a change is determined by the Director, OCHAMPUS, or designee,
to be clinically contraindicated. When contraindicated, other public
facilities for the therapy shall not be considered adequate for the
beneficiary.
(5) Public facility use certification. Written certification, in
accord with information requirements, formats, and procedures
established by the Director, OCHAMPUS, or designee that requested PFPWD
services or items cannot be obtained from public facilities because the
services or items are not available, or if available, are not adequate,
is a prerequisite for PFPWD benefit payment.
(i) A Military Treatment Facility (MTF) Commander, or designee, may
make such certification for a beneficiary residing within a defined
geographic area.
(ii) An administrator of a public facility, or designee, may make
such certification for a beneficiary residing within the service area of
that public facility.
(iii) The domicile of the beneficiary shall be the basis for the
determination of public facility availability when the sponsor and
beneficiary are separately domiciled due to the sponsor's move to a new
permanent duty station or due to legal custody requirements.
(iv) The Director, OCHAMPUS, or designee, may determine, on a case-
by-case basis, that apparent public facility availability for a
requested type of service or item can not be substantiated for a
specific beneficiary's request for PFPWD benefits and is not available.
(A) A case-specific determination shall be shall be based upon a
written statement by the beneficiary (or sponsor or guardian acting on
behalf of the beneficiary) which details the circumstances wherein a
specific individual representing a specific public facility refused to
provide a public facility use certification, and such other information
as the Director, OCHAMPUS, or designee determines to be material to the
determination.
(B) A case-specific determination of public facility availability by
the Director, OCHAMPUS, or designee, is conclusive, and is not
appealable.
(v) The requirements of this paragraph (a)(5) notwithstanding, no
Public Facility Use Certification is required for medical services and
items that are provided under Part C of the Individuals with
Disabilities Education Act in accordance with the Individualized Family
Service Plan and that are otherwise allowable under the CHAMPUS Basic
Program or the PFPWD.
(6) Equipment. (i) An item of equipment shall not be authorized when
such authorization would allow concurrent PFPWD cost-sharing of more
than one item of the same type of equipment for the same beneficiary.
(ii) Reasonable repairs and maintenance shall be allowable for any
beneficiary owned equipment otherwise allowable by this section.
(7) Implementing instructions. The Director, OCHAMPUS, or designee
shall issue policies, instructions, procedures, guidelines, standards,
and criteria necessary to assure the quality and efficiency of services
and items furnished as a PFPWD benefit and to otherwise accomplish the
purpose of the PFPWD.
(i) Other requirements. All provisions of this part, except the
provisions of Sec. 199.4, apply to the PFPWD unless otherwise provided
by this section.
(ii) Continuity of eligibility. A CHAMPUS beneficiary who has an
outstanding Program for the Handicapped (PFTH) benefit authorization
during the 30 calendar day period immediately prior to the effective
date of the Program for Persons with Disabilities (PFPWD) shall be
deemed to have a PFPWD qualifying condition for the duration of the
period during which the beneficiary is otherwise eligible for PFPWD and
the beneficiary continues to meet the applicable PFTH qualifying
condition criteria.
(b) Eligibility--(1) Spouse or child. PFPWD benefits are limited to
a CHAMPUS eligible child or spouse, but not a former spouse, except as
provided in paragraph (b)(1)(ii) of this section, of:
(i) Active duty sponsor. An active duty member of one of the
Uniformed Services as determined in accordance with the provisions of
Sec. 199.3; or
(ii) Former member sponsor. After November 13, 1986, a former member
of a
[[Page 156]]
Uniformed Service, when the qualifying condition is the result of, or
has been exacerbated by, an injury or illness resulting from physical or
emotional abuse; or
(iii) Deceased sponsor. A CHAMPUS beneficiary remains eligible for
benefits under the PFPWD:
(A) For a period of three calendar years from the date an active
duty sponsor dies; or
(B) Through midnight of the beneficiary's twenty-first birthday when
the beneficiary is receiving PFPWD benefits at the time the active duty
sponsor dies and the sponsor was eligible, at the time of death, for
receipt of hostile-fire pay or died as a result of a disease or injury
incurred while eligible for such pay.
(2) Loss of PFPWD eligibility. Eligibility for PFPWD benefits ceases
as of 12.:01 a.m. of the day following the day that:
(i) The sponsor ceases to be an active duty member for any reason
other than death; or
(ii) Eligibility based upon the abused dependent provisions of
paragraph (b)(1) of this section expires; or
(iii) Eligibility based upon the deceased sponsor provisions of
paragraph (b)(1) of this section expires; or
(iv) The Director, OCHAMPUS, or designee, determines that the
beneficiary no longer has a qualifying condition.
(3) Qualifying condition--(i) Mental retardation. A diagnosis of
moderate or severe mental retardation made in accordance with the
criteria of the current edition of the ``Diagnostic and Statistical
Manual of Mental Disorders'' published by the American Psychiatric
Association is a PFPWD qualifying condition.
(ii)Serious physical disability. A serious physical disability as
defined in Sec. 199.2, is a PFPWD qualifying condition.
(iii) Infant/toddler. For CHAMPUS beneficiaries under the age of
three years with a diagnosed neuromuscular developmental condition or
Down syndrome, or other condition that can to a reasonable medical
probability be expected to precede a diagnosis of moderate or severe
mental retardation or be characterized as a serious physical disability
before the age of seven, the Director, OCHAMPUS, or designee, shall
establish criteria for PFPWD eligibility in lieu of the requirements of
paragraph (b)(3)(i) or paragraph (b)(3)(ii) of this section.
(iv) Multiple disabilities. The cumulative disabling effect shall be
used in the adjudication of a qualifying condition determination when an
applicant has two or more disabilities involving separate body systems.
(c) Benefit. Items or services which the Director, OCHAMPUS, or
designee, has determined to be intrinsic to the following benefit
categories and has determined to be capable of confirming, arresting, or
reducing the severity of the disabling effects of a qualifying
condition, generally or in a specific case, and which are not otherwise
excluded by this PFPWD, may be allowed.
(1) Diagnostic procedures to establish a qualifying condition
diagnosis or to measure the extent of functional loss.
(2) Treatment through the use of such medical, habilitative, or
rehabilitative methods, techniques, therapies and equipment which
otherwise meet the requirements of this PFPWD. Treatment includes, but
is not limited to, prosthetic devices, orthopedic braces, and orthopedic
appliances. Otherwise allowable treatment may be rendered in-home, or as
inpatient or outpatient care as appropriate.
(3) Training when required to allow the use of an assistive
technology device or to acquire skills which are expected to assist the
beneficiary to reduce the disabling effects of a qualifying condition
and for parents (or guardian) and siblings of a PFPWD beneficiary when
required as an integral part of the management of the qualifying
condition.
(4) Special education instruction, other than training specifically
designed to accommodate the disabling effects of a qualifying condition.
(5) Institutional care within a State, as defined in Sec. 199.2,
when the severity of the qualifying condition requires protective
custody or training in a residential environment.
(6) Transportation when required to convey the PFPWD beneficiary to
or from a facility or institution to receive
[[Page 157]]
otherwise allowable services or items. Transportation for a medical
attendant may be approved when medically necessary for the safe
transport of the PFPWD eligible beneficiary.
(7) Adjunct services--(i) Assistive services. Services of a
qualified interpreter or translator for PFPWD beneficiaries who are
deaf, readers for PFPWD beneficiaries who are blind, and personal
assistants for PFPWD beneficiaries with other types of qualifying
conditions, when such services are not directly related to the rendering
or delivery of service or item otherwise an allowable PFPWD benefit.
(ii) Equipment adaptation. The allowable equipment purchase shall
encompass such services and structural modification to the equipment as
necessary to make the equipment serviceable for a particular disability.
(iii) Equipment maintenance. Reasonable repairs and maintenance for
that portion of the useful life of beneficiary owned equipment that is
concurrent with the beneficiary's PFPWD eligibility.
(d) Exclusions--(1) Inpatient acute care for medical or surgical
treatment of an acute illness, or of an acute exacerbation of the
qualifying condition, is excluded.
(2) Structural alterations to living space and permanent fixtures
attached thereto, including alterations necessary to accommodate
installation of equipment, or to facilitate entrance or exit, are
excluded.
(3) Homemaker, sitter, or companion services, except as
institutional care of adjunct services, which predominantly provide
assistance with daily living activities or accomplish household chores
or provide companionship or provide supervision or observation, or any
combination of these functions, are excluded.
(4) Dental care or orthodontic treatment is excluded.
(5) Nondomestic travel which originates or terminates outside of a
State, as defined in Sec. 199.2, is excluded.
(6) Deluxe travel accommodation price differential between the price
for a type of accommodation which provides services or features which
exceed the requirements of the beneficiary's condition for safe
transport and the price for a type of accommodation without those deluxe
features, is excluded.
(7) Equipment. Exclusions for durable medical equipment at Sec.
199.4(d)(3)(ii)(D) apply to all PFPWD allowable equipment.
(8) Medical devices. Prosthetic devices and medical equipment which
do not meet the benefit requirements of Sec. 199.4 are excluded.
(9) No obligation to pay. Services or items for which the
beneficiary or sponsor has no legal obligation to pay, or for which no
charge would be made if the beneficiary was not eligible for the
CHAMPUS, are excluded.
(10) Public facility or Federal government. Services or items paid
for, or eligible for payment, directly or indirectly by a Public
Facility, as defined in Sec. 199.2, or by the Federal government, other
than the Department of Defense, are excluded, except when such services
or items are eligible for payment under a State plan for medical
assistance under Title XIX of the Social Security Act (Medicaid).
(11) Study, grant, or research programs. Services and items provided
as a part of a scientific clinical study, grant, or research program are
excluded.
(12) Unproven drugs, devices, and medical treatments or procedures.
Services and items whose safety and efficacy have not been established
as described in Sec. 199.4 are unproven and cannot be cost-shared by
CHAMPUS.
(13) Immediate family or household. Services or items provided or
prescribed by a member of the beneficiary's immediate family, or a
person living in the beneficiary's or sponsor's household, are excluded.
(14) Court or agency ordered care. Services or items ordered by a
court or other government agency that are not otherwise a legitimate
PFPWD benefit are excluded.
(15) Excursions. Additional or special charges for excursions, other
than otherwise allowable transportation, are excluded even though part
of a program offered by an approved provider.
(16) Drugs and medicines. Drugs and medicines which do not meet the
benefit requirements of Sec. 199.4 are excluded.
[[Page 158]]
(17) Therapeutic absences. Therapeutic absences from an inpatient
facility are excluded.
(e) Cost-share liability--(1) No deductible. PFPWD benefits are not
subject to a deductible amount.
(2)(i) Sponsor cost-share liability. Regardless of the number of
PFPWD eligible family members, the sponsor's cost share for allowed
PFPWD benefits in a given month is according to the following table:
------------------------------------------------------------------------
Monthly
Member's pay grade share
------------------------------------------------------------------------
E-1 through E-5............................................... $25
E-6........................................................... 30
E-7 and O-1................................................... 35
E-8 and O-2................................................... 40
E-9, W-1, W-2, and O-3........................................ 45
W-3, W-4, and O-4............................................. 50
W-5 and O-5................................................... 65
O-6........................................................... 75
O-7........................................................... 100
O-8........................................................... 150
O-9........................................................... 200
O-10.......................................................... 250
------------------------------------------------------------------------
(ii) The sponsor's cost-share will be applied, up to the amount
given in the table in paragraph (e)(2)(i), to the first allowed charges
in any given month. The government's share will be paid, up to the
maximum amount(s) specified in paragraphs (e)(3) and (e)(4) of this
section for allowed charges after the sponsor's cost-share has been
applied.
(3) Government cost-share liability: member who sponsors one PFPWD
beneficiary. The total government share of the cost of all PFPWD
benefits provided in a given month to a beneficiary who is the sponsor's
only PFPWD eligible family member may not exceed $1,000 after
application of the allowable payment methodology. Any amount remaining
after the Government's maximum share has been reached is the
responsibility of the active duty sponsor.
(4) Government cost-share liability: member who sponsors more than
one PFPWD beneficiary. The total government share of the cost of all
PFPWD allowable benefits provided in a given month to a beneficiary who
is one of two or more PFPWD eligible family members of the same sponsor
shall be determined as follows:
(i) Maximum benefit limit determination for the first PFPWD eligible
beneficiary. The $1,000 maximum monthly government PFPWD benefit amount
shall apply only to the beneficiary incurring the least amount of
allowable PFPWD expense in a given month, after application of the
allowable payment methodology. If two or more PFPWD eligible
beneficiaries have the same amount of allowable PFPWD expenses in a
given month, the $1,000 maximum benefit in that month shall apply to
only one PFPWD eligible beneficiary.
(ii) Maximum benefit limit determination for the remaining PFPWD
eligible beneficiaries. After application of the Government's cost-share
specified in paragraph (e)(4)(i) of this section, the government shall
cost-share the entire remaining amount for all allowable services and
items received in that month by the remaining PFPWD eligible
beneficiaries.
(f) Benefit payment--(1) Equipment. The allowable amount for
equipment shall be calculated in the same manner as durable medical
equipment allowable through Sec. 199.4.
(2) Transportation. The allowable amount for transportation is
limited to the actual cost of the standard published fare plus any
standard surcharge made to accommodate any person with a similar
disability or to the actual cost of specialized medical transportation
when nonspecialized transport cannot accommodate the beneficiary's
disability related needs, or when specialized transport is more
economical than nonspecialized transport. When transport is by private
vehicle, the allowable amount is limited to the Federal government
employee mileage reimbursement rate in effect on the trip date.
(3) Proration of equipment expense. The PFPWD beneficiary (or
sponsor or guardian acting on the beneficiary's behalf) may, only at the
time of the request for authorization of equipment, specify that the
allowable cost of the equipment be prorated. Equipment expense proration
permits the allowable cost of an item of PFPWD authorized equipment to
be apportioned so that no portion of the allowable cost exceeds the
monthly benefit limit and allows each apportioned amount to be
separately authorized as a benefit during subsequent contiguous months.
[[Page 159]]
(i) Maximum period. The maximum number of contiguous months during
which a prorated amount may be authorized for cost-share shall be the
lesser of:
(A) The number of months calculated by dividing the initial
allowable cost for the item of equipment by $1,000 and doubling the
resulting quotient; or
(B) The number of months of useful equipment life for the requesting
beneficiary, as determined by the Director, OCHAMPUS, or designee.
(ii) Cost-share. A cost-share is applicable in any month in which a
prorated amount is authorized, subject to the cost-share provisions for
a sponsor with two or more PFPWD eligible beneficiaries.
(iii) Termination. Prorated payments shall be terminated as of the
first day of the month following the death of a beneficiary or as of the
effective date of a beneficiary's loss of PFPWD eligibility for any
other reason.
(4) For-profit institutional care provider. Institutional care
provided by a for-profit entity may be allowed only when the care for a
specific PFPWD beneficiary:
(i) Is contracted for by a public facility, as defined in Sec.
199.2, as a part of a publicly funded long-term inpatient care program;
and
(ii) Is provided based upon the PFPWD beneficiary's being eligible
for the publicly funded program which has contracted for the care; and
(iii) Is authorized by the public facility as a part of a publicly
funded program; and
(iv) Would cause a cost-share liability in the absence of CHAMPUS
eligibility; and
(v) Produces a PFPWD beneficiary cost-share liability that does not
exceed the maximum charge by the provider to the public facility for the
contracted level of care.
(g) Implementing instructions. The Director, OCHAMPUS, or a
designee, shall issue CHAMPUS policies, instructions, procedures,
guidelines, standards, and criteria as may be necessary to implement the
intent of this section.
[62 FR 35093, June 30, 1997, as amended at 62 FR 42904, Aug. 11, 1997;
66 FR 9655, Feb. 9, 2001; 67 FR 18827, Apr. 17, 2002]
Sec. 199.6 Authorized providers.
(a) General. This section sets forth general policies and procedures
that are the basis for the CHAMPUS cost-sharing of medical services and
supplies provided by institutions, individuals, or other types of
providers. Providers seeking payment from the Federal Government through
programs such as CHAMPUS have a duty to familiarize themselves with, and
comply with, the program requirements.
(1) Listing of provider does not guarantee payment of benefits. The
fact that a type of provider is listed in this section is not to be
construed to mean that CHAMPUS will automatically pay a claim for
services or supplies provided by such a provider. The provider who
actually furnishes the service(s) must, in fact, meet all licensing and
other requirements established by this part to be an authorized
provider; the provider must not be the subject of sanction under Sec.
199.9; and, cost-sharing of the services must not otherwise be
prohibited by this part. In addition, the patient must in fact be an
eligible beneficiary and the services or supplies billed must be
authorized and medically necessary, regardless of the standing of the
provider.
(2) Outside the United States or emergency situations within the
United States. Outside the United States or within the United States and
Puerto Rico in emergency situations, the Director, OCHAMPUS, or a
designee, after review of the facts, may provide payment to or on behalf
of a beneficiary who receives otherwise covered services or supplies
from a provider of service that does not meet the standards described in
this part.
Note: Only the Secretary of Defense, the Secretary of Health and
Human Services, or the Secretary of Transportation, or their designees,
may authorize (in emergency situations) payment to civilian facilities
in the United States that are not in compliance with title VI of the
Civil Rights Act of 1964. For the purpose of the Civil Rights Act only,
the United States includes the 50 states, the District of Columbia,
Puerto Rico, Virgin Islands, American Samoa, Guam, Wake Island, Canal
Zone, and the territories and possessions of the United States.
(3) Dual Compensation/Conflict of Interest. Title 5, United States
Code, section 5536 prohibits medical personnel who
[[Page 160]]
are active duty Uniformed Service members or civilian employees of the
Government from receiving additional Government compensation above their
normal pay and allowances for medical care furnished. In addition,
Uniformed Service members and civilian employees of the Government are
generally prohibited by law and agency regulations and policies from
participating in apparent or actual conflict of interest situations in
which a potential for personal gain exists or in which there is an
appearance of impropriety or incompatibility with the performance of
their official duties or responsibilities. The Departments of Defense,
Health and Human Services, and Transportation have a responsibility,
when disbursing appropriated funds in the payment of CHAMPUS benefits,
to ensure that the laws and regulations are not violated. Therefore,
active duty Uniformed Service members (including a reserve member while
on active duty and civilian employees of the United States Government
shall not be authorized to be CHAMPUS providers. While individual
employees of the Government may be able to demonstrate that the
furnishing of care to CHAMPUS beneficiaries may not be incompatible with
their official duties and responsibilities, the processing of millions
of CHAMPUS claims each year does not enable Program administrators to
efficiently review the status of the provider on each claim to ensure
that no conflict of interest or dual compensation situation exists. The
problem is further complicated given the numerous interagency agreements
(for example, resource sharing arrangements between the Department of
Defense and the Veterans Administration in the provision of health care)
and other unique arrangements which exist at individual treatment
facilities around the country. While an individual provider may be
prevented from being an authorized CHAMPUS provider even though no
conflict of interest or dual compensation situation exists, it is
essential for CHAMPUS to have an easily administered, uniform rule which
will ensure compliance with the existing laws and regulations.
Therefore, a provider who is an active duty Uniformed Service member or
civilian employee of the Government shall not be an authorized CHAMPUS
provider. In addition, a provider shall certify on each CHAMPUS claim
that he/she is not an active duty Uniformed Service member or civilian
employee of the Government.
(4) [Reserved]
(5) Utilization review and quality assurance. Providers approved as
authorized CHAMPUS providers have certain obligations to provide
services and supplies under CHAMPUS which are (i) furnished at the
appropriate level and only when and to the extent medically necessary
under the criteria of this part; (ii) of a quality that meets
professionally recognized standards of health care; and, (iii) supported
by adequate medical documentation as may be reasonably required under
this part by the Director, OCHAMPUS, or designee, to evidence the
medical necessity and quality of services furnished, as well as the
appropriateness of the level of care. Therefore, the authorization of
CHAMPUS benefits is contingent upon the services and supplies furnished
by any provider being subject to pre-payment or post-payment utilization
and quality assurance review under professionally recognized standards,
norms, and criteria, as well as any standards or criteria issued by the
Director, OCHAMPUS, or a designee, pursuant to this part. (Refer to
Sec. Sec. 199.4, 199.5, and 199.7 of this part.)
(6) Exclusion of beneficiary liability. In connection with certain
utilization review, quality assurance and preauthorization requirements
of section 199.4 of this part, providers may not hold patients liable
for payment for certain services for which CHAMPUS payment is
disallowed. With respect to such services, providers may not seek
payment from the patient or the patient's family. Any such effort to
seek payment is a basis for termination of the provider's authorized
status.
(7) Provider required. In order to be considered for benefits, all
services and supplies shall be rendered by, prescribed by, or furnished
at the direction of, or on the order of a CHAMPUS-authorized provider
practicing within the scope of his or her license.
[[Page 161]]
(8) Participating providers. A CHAMPUS-authorized provider is a
participating provider, as defined in Sec. 199.2 under the following
circumstances:
(i) Mandatory participation. (A) All Medicare-participating
hospitals must be CHAMPUS participating providers for all inpatient
CHAMPUS claims.
(B) Hospitals that are not Medicare-participating but are subject to
the CHAMPUS-DRG-based payment methodology or the CHAMPUS mental health
payment methodology as established by Sec. 199.14(a), must enter into a
participation agreement with CHAMPUS for all inpatient claims in order
to be a CHAMPUS-authorized provider.
(C) Corporate services providers authorized as CHAMPUS providers
under the provisions of paragraph (f) of this section must enter into a
participation agreement as provided by the Director, OCHAMPUS, or
designee.
(ii) Voluntary participation--(A) Total claims participation: The
participating provider program. A CHAMPUS-authorized provider that is
not required to participate by this part may become a participating
provider by entering into an agreement or memorandum of understanding
(MOU) with the Director, OCHAMPUS, or designee, which includes, but is
not limited to, the provisions of paragraph (a)(13) of this section. The
Director, OCHAMPUS, or designee, may include in a participating provider
agreement/MOU provisions that establish between CHAMPUS and a class,
category, type, or specific provider, uniform procedures and conditions
which encourage provider participation while improving beneficiary
access to benefits and contributing to CHAMPUS efficiency. Such
provisions shall be otherwise allowed by this part or by DoD Directive
or DoD Instruction specifically pertaining to CHAMPUS claims
participation. Participating provider program provisions may be
incorporated into an agreement/MOU to establish a specific CHAMPUS-
provider relationship, such as a preferred provider arrangement.
(B) Claim-specific participation. A CHAMPUS-authorized provider that
is not required to participate and that has not entered into a
participation agreement pursuant to paragraph (a)(8)(ii)(A) of this
section may elect to be a participating provider on a claim-by-claim
basis by indicating ``accept assignment'' on each claim form for which
participation is elected.
(9) Limitation to authorized institutional provider designation.
Authorized institutional provider status granted to a specific
institutional provider applicant does not extend to any institution-
affiliated provider, as defined in Sec. 199.2, of that specific
applicant.
(10) Authorized provider. A hospital or institutional provider,
physician, or other individual professional provider, or other provider
of services or supplies specifically authorized in this chapter to
provide benefits under CHAMPUS. In addition, to be an authorized CHAMPUS
provider, any hospital which is a CHAMPUS participating provider under
paragraph (a)(7) of this section, shall be a participating provider for
all care, services, or supplies furnished to an active duty member of
the uniformed services for which the active duty member is entitled
under 10 U.S.C. 1074(c). As a participating provider for active duty
members, the CHAMPUS authorized hospital shall provide such care,
services, and supplies in accordance with the payment rules of Sec.
199.16 of this part. The failure of any CHAMPUS participating hospital
to be a participating provider for any active duty member subjects the
hospital to termination of the hospital's status as a CHAMPUS authorized
provider for failure to meet the qualifications established by this
part.
(11) Balance billing limits.
(i) In general. Individual providers who are not Participating
Providers may not balance bill a beneficiary an amount which exceeds the
applicable balance billing limit. The balance billing limit shall be the
same percentage as the Medicare limiting charge percentage for
nonparticipating physicians.
(ii) Waiver. The balance billing limit may be waived by the
Director, OCHAMPUS on a case-by-case basis if requested by a CHAMPUS
beneficiary. A decision by the Director, OCHAMPUS to waive or not waive
the
[[Page 162]]
limit in any particular case is not subject to the appeal and hearing
procedures of Sec. 199.10.
(iii) Compliance. Failure to comply with the balance billing limit
shall be considered abuse and/or fraud and grounds of exclusion or
suspension of the provider under Sec. 199.9.
(12) Medical records. CHAMPUS-authorized provider organizations and
individuals providing clinical services shall maintain adequate clinical
records to substantiate that specific care was actually furnished, was
medically necessary, and appropriate, and identify(ies) the
individual(s) who provided the care. This applies whether the care is
inpatient or outpatient. The minimum requirements for medical record
documentation are set forth by all of the following:
(i) The cognizant state licensing authority;
(ii) The Joint Commission on Accreditation of Healthcare
Organizations, or the appropriate Qualified Accreditation Organization
as defined in Sec. 199.2;
(iii) Standards of practice established by national medical
organizations; and
(iv) This part.
(13) Participation agreements. A participation agreement otherwise
required by this part shall include, in part, all of the following
provisions requiring that the provider shall:
(i) Not charge a beneficiary for the following:
(A) Services for which the provider is entitled to payment from
CHAMPUS;
(B) Services for which the beneficiary would be entitled to have
CHAMPUS payment made had the provider complied with certain procedural
requirements.
(C) Services not medically necessary and appropriate for the
clinical management of the presenting illness, injury, disorder or
maternity;
(D) Services for which a beneficiary would be entitled to payment
but for a reduction or denial in payment as a result of quality review;
and
(E) Services rendered during a period in which the provider was not
in compliance with one or more conditions of authorization;
(ii) Comply with the applicable provisions of this part and related
CHAMPUS administrative policy;
(iii) Accept the CHAMPUS determined allowable payment combined with
the cost-share, deductible, and other health insurance amounts payable
by, or on behalf of, the beneficiary, as full payment for CHAMPUS
allowed services;
(iv) Collect from the CHAMPUS beneficiary those amounts that the
beneficiary has a liability to pay for the CHAMPUS deductible and cost-
share;
(v) Permit access by the Director, OCHAMPUS, or designee, to the
clinical record of any CHAMPUS beneficiary, to the financial and
organizational records of the provider, and to reports of evaluations
and inspections conducted by state, private agencies or organizations;
(vi) Provide the Director, OCHAMPUS, or designee, prompt written
notification of the provider's employment of an individual who, at any
time during the twelve months preceding such employment, was employed in
a managerial, accounting, auditing, or similar capacity by an agency or
organization which is responsible, directly or indirectly for decisions
regarding Department of Defense payments to the provider;
(vii) Cooperate fully with a designated utilization and clinical
quality management organization which has a contract with the Department
of Defense for the geographic area in which the provider renders
services;
(viii) Obtain written authorization before rendering designated
services or items for which CHAMPUS cost-share may be expected;
(ix) Maintain clinical and other records related to individuals for
whom CHAMPUS payment was made for services rendered by the provider, or
otherwise under arrangement, for a period of 60 months from the date of
service;
(x) Maintain contemporaneous clinical records that substantiate the
clinical rationale for each course of treatment, periodic evaluation of
the efficacy of treatment, and the outcome at completion or
discontinuation of treatment;
(xi) Refer CHAMPUS beneficiaries only to providers with which the
referring provider does not have an economic interest, as defined in
Sec. 199.2; and
[[Page 163]]
(xii) Limit services furnished under arrangement to those for which
receipt of payment by the CHAMPUS authorized provider discharges the
payment liability of the beneficiary.
(14) Implementing instructions. The Director, OCHAMPUS, or a
designee, shall issue CHAMPUS policies, instructions, procedures, and
guidelines, as may be necesssary to implement the intent of this
section.
(15) Exclusion. Regardless of any provision in this section, a
provider who is suspended, excluded, or terminated under Sec. 199.9 of
this part is specifically excluded as an authorized CHAMPUS provider.
(b) Institutional providers--(1) General. Institutional providers
are those providers who bill for services in the name of an
organizational entity (such as hospital and skilled nursing facility),
rather than in the name of a person. The term ``institutional provider''
does not include professional corporations or associations qualifying as
a domestic corporation under Sec. 301.7701-5 of the Internal Revenue
Service Regulations nor does it include other corporations that provide
principally professional services. Institutional providers may provide
medical services and supplies on either an inpatient or outpatient
basis.
(i) Preauthorization. Preauthorization may be required by the
Director, OCHAMPUS for any health care service for which payment is
sought under CHAMPUS. (See Sec. Sec. 199.4 and 199.15 for further
information on preauthorization requirements.)
(ii) Billing practices.
(A) Each institutional billing, including those institutions subject
to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined
all-inclusive rate reimbursement method, must be itemized fully and
sufficiently descriptive for the CHAMPUS to make a determination of
benefits.
(B) Institutional claims subject to the CHAMPUS DRG-based
reimbursement method or a CHAMPUS-determined all-inclusive rate
reimbursement method, may be submitted only after the beneficiary has
been discharged or transferred from the institutional provider's
facility or program.
(C) Institutional claims for Residential Treatment Centers and all
other institutional providers, except those listed in (B) above, should
be submitted to the appropriate CHAMPUS fiscal intermediary at least
every 30 days.
(2) Nondiscrimination policy. Except as provided below, payment may
not be made for inpatient or outpatient care provided and billed by an
institutional provider found by the Federal Government to practice
discrimination in the admission of patients to its services on the basis
of race, color, or national origin. Reimbursement may not be made to a
beneficiary who pays for care provided by such a facility and submits a
claim for reimbursement. In the following circumstances, the Secretary
of Defense, or a designee, may authorize payment for care obtained in an
ineligible facility:
(i) Emergency care. Emergency inpatient or outpatient care.
(ii) Care rendered before finding of a violation. Care initiated
before a finding of a violation and which continues after such violation
when it is determined that a change in the treatment facility would be
detrimental to the health of the patient, and the attending physician so
certifies.
(iii) Other facility not available. Care provided in an ineligible
facility because an eligible facility is not available within a
reasonable distance.
(3) Procedures for qualifying as a CHAMPUS-approved institutional
provider. General and special hospitals otherwise meeting the
qualifications outlined in paragraphs (b)(4) (i), (ii), and (iii), of
this section are not required to request CHAMPUS approval formally.
(i) JCAH accreditation status. Each CHAMPUS fiscal intermediary
shall keep informed as to the current JCAH accreditation status of all
hospitals and skilled nursing facilities in its area; and the provider's
status under Medicare, particularly with regard to compliance with title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d(1)). The Director,
OCHAMPUS, or a designee, shall specifically approve all other authorized
institutional providers providing services to CHAMPUS beneficiaries. At
the discretion of the Director, OCHAMPUS, any facility
[[Page 164]]
that is certified and participating as a provider of services under
title XVIII of the Social Security Act (Medicare), may be deemed to meet
CHAMPUS requirements. The facility must be providing a type and level of
service that is authorized by this part.
(ii) Required to comply with criteria. Facilities seeking CHAMPUS
approval will be expected to comply with appropriate criteria set forth
in paragraph (b)(4) of this section. They also are required to complete
and submit CHAMPUS Form 200, ``Required Information, Facility
Determination Instructions,'' and provide such additional information as
may be requested by OCHAMPUS. An onsite evaluation, either scheduled or
unscheduled, may be conducted at the discretion of the Director,
OCHAMPUS, or a designee. The final determination regarding approval,
reapproval, or disapproval of a facility will be provided in writing to
the facility and the appropriate CHAMPUS fiscal intermediary.
(iii) Notice of peer review rights. All health care facilities
subject to the DRG-based payment system shall provide CHAMPUS
beneficiaries, upon admission, with information about peer review
including their appeal rights. The notices shall be in a form specified
by the Director, OCHAMPUS.
(iv) Surveying of facilities. The surveying of newly established
institutional providers and the periodic resurveying of all authorized
institutional providers is a continuing process conducted by OCHAMPUS.
(v) Institutions not in compliance with CHAMPUS standards. If a
determination is made that an institution is not in compliance with one
or more of the standards applicable to its specific category of
institution, CHAMPUS shall take immediate steps to bring about
compliance or terminate the approval as an authorized institution in
accordance with Sec. 199.9(f)(2).
(vi) Participation agreements required for some hospitals which are
not Medicare-participating. Notwithstanding the provisions of this
paragraph (B)(3), a hospital which is subject to the CHAMPUS DRG-based
payment system but which is not a Medicare-particpating hospital must
request and sign an agreement with OCHAMPUS. By signing the agreement,
the hospital agrees to participate on all CHAMPUS inpatient claims and
accept the requirements for a participating provider as contained in
paragraph (a)(8) of Sec. 199.6. Failure to sign such an agreement shall
disqualify such hospital as a CHAMPUS-approved institutional provider.
(4) Categories of institutional providers. The following categories
of institutional providers may be reimbursed by CHAMPUS for services
provided CHAMPUS beneficiaries subject to any and all definitions,
conditions, limitation, and exclusions specified or enumerated in this
part.
(i) Hospitals, acute care, general and special. An institution that
provides inpatient services, that also may provide outpatient services
(including clinical and ambulatory surgical services), and that:
(A) Is engaged primarily in providing to inpatients, by or under the
supervision of physicians, diagnostic and therapeutic services for the
medical or surgical diagnosis and treatment of illness, injury, or
bodily malfunction (including maternity).
(B) Maintains clinical records on all inpatients (and outpatients if
the facility operates an outpatient department or emergency room).
(C) Has bylaws in effect with respect to its operations and medical
staff.
(D) Has a requirement that every patient be under the care of a
physician.
(E) Provides 24-hour nursing service rendered or supervised by a
registered professional nurse, and has a licensed practical nurse or
registered professional nurse on duty at all times.
(F) Has in effect a hospital utilization review plan that is
operational and functioning.
(G) In the case of an institution in a state in which state or
applicable local law provides for the licensing of hospitals, the
hospital:
(1) Is licensed pursuant to such law, or
(2) Is approved by the agency of such state or locality responsible
for licensing hospitals as meeting the standards established for such
licensing.
(H) Has in effect an operating plan and budget.
[[Page 165]]
(I) Is accredited by the JCAH or meets such other requirements as
the Secretary of Health and Human Services, the Secretary of
Transportation, or the Secretary of Defense finds necessary in the
interest of the health and safety of patients who are admitted to and
furnished services in the institution.
(ii) Liver transplantation centers. (A) CHAMPUS shall provide
coverage for liver transplantation procedures performed only by
experienced transplant surgeons at centers complying with the provisions
outlined in paragraph (b)(4)(i) of this section and meeting the
following criteria:
(1) The center is a tertiary care facility affiliated with an
academic health center. The center must have accredited programs in
graduate medical education related to the function of liver
transplantation such as internal medicine, pediatrics, surgery, and
anesthesiology;
(2) The center has an active solid organ transplantation program
(involving liver transplants as well as other organs);
(3) The transplantation center must have at least a 50 percent one-
year survival rate for ten cases. At the time CHAMPUS approval is
requested, the transplant center must provide evidence that at least ten
liver transplants have been performed at the center and that at least 50
percent of those transplanted patients have survived one year following
surgery. A 50 percent one-year survival rate for all subsequent liver
transplantations must be maintained for continued CHAMPUS approval;
(4) The center has allocated sufficient operating room, recovery
room, laboratory, and blood bank support and a sufficient number of
intensive care and general surgical beds and specialized staff for these
areas;
(5) The center participates in a donor procurement program and
network;
(6) The center systematically collects and shares data on its
transplant program;
(7) The center has an interdisciplinary body to determine the
suitability of candidates for transplantation on an equitable basis;
(8) The transplantation surgeon is specifically trained for liver
grafting and must assemble and train a team to function whenever a donor
liver is available;
(9) The transplantation center must have on staff board eligible or
board certified physicians and other experts in the field of hepatology,
pediatrics, infectious disease, nephrology with dialysis capability,
pulmonary medicine with respiratory therapy support, pathology,
immunology, and anesthesiology to complement a qualified transplantation
team;
(10) The transplantation center has the assistance of appropriate
microbiology, clinical chemistry, and radiology support;
(11) The transplantation center has blood bank support to
accommodate normal demands and the transplant procedure; and
(12) The transplantation center includes the availability of
psychiatric and social services support for patients and family.
(B) In order to receive approval as a CHAMPUS authorized liver
transplant center, a center must submit a request to the Director,
CHAMPUS, or a designee. The CHAMPUS authorized liver transplant center
shall agree to the following:
(1) Bill for all services and supplies related to the liver
transplantation performed by its staff and bill also for services
rendered by the donor hospital following declaration of brain death and
after all existing legal requirements for excision of the donor organ
have been met; and
(2) The center shall agree to submit all charges on the basis of
fully itemized bills. This means that each service and supply and the
charge for each is individually identified.
(iii) Heart transplantation centers. (A) CHAMPUS shall provide
coverage for heart transplantation procedures performed only by
experienced transplant surgeons at centers complying with provisions
outlined in paragraph (b)(4)(i) of this section and meeting the
following criteria:
[[Page 166]]
(1) The center has experts in the fields of cardiology,
cardiovascular surgery, anesthesiology, immunology, infectious disease,
nursing, social services and organ procurement to complement the
transplant team;
(2) The center has an active cardiovascular medical and surgical
program as evidenced by a minimum of 500 cardiac catheterizations and
coronary arteriograms and 250 open heart procedures per year;
(3) The center has an anesthesia team that is available at all
times;
(4) The center has infectious disease services with both the
professional skills and the laboratory resources that are needed to
discover, identify, and manage a whole range of organisms;
(5) The center has a nursing service team trained in the hemodynamic
support of the patient and in managing immunosuppressed patients;
(6) The center has pathology resources that are available for
studying and reporting the pathological responses of transplantation;
(7) The center has legal counsel familiar with transplantation laws
and regulations;
(8) The commitment of the transplant center must be at all levels
and broadly evident throughout the facility;
(9) Responsible team members must be board certified or board
eligible in their respective disciplines;
(10) Component teams must be integrated into a comprehensive
transplant team with clearly defined leadership and responsibility;
(11) The center has adequate social service resources;
(12) The transplant center must comply with applicable State
transplant laws and regulations;
(13) The transplant center must safeguard the rights and privacy of
patients;
(14) The transplant center must have adequate patient management
plans and protocols;
(15) The center participates in a donor procurement program and
network;
(16) The center systematically collects and shares data on its
transplant program;
(17) The center has an interdisciplinary body to determine the
suitability of candidates for transplantation on an equitable basis;
(18) The center has extensive blood bank support;
(19) The center must have an established heart transplantation
program with documented evidence of 12 or more heart transplants in each
of the two consecutive preceding 12-month periods prior to application
and 12 heart transplants prior to that; and
(20) The center must demonstrate actuarial survival rates of 73
percent for one year and 65 percent for two years for patients who have
had heart transplants since January 1, 1982, at that facility.
(B) CHAMPUS approval will lapse if either the number of heart
transplants falls below 8 in 12 months or if the one-year survival rate
falls below 60 percent for a consecutive 24-month period.
(C) CHAMPUS-approval may also be extended for a heart transplant
center that meets other certification or accreditation standards
provided the standards are equivalent to or exceed the criteria listed
above and have been approved by the Director, OCHAMPUS.
(D) In order to receive approval as a CHAMPUS heart transplant
center, a facility must submit a request to the Director, OCHAMPUS, or a
designee. The CHAMPUS-authorized heart transplant center shall agree to
the following:
(1) Bill for all services and supplies related to the heart
transplantation performed by its staff and bill also for services
rendered by the donor hospital following declaration of brain death;
(2) Submit all charges on the basis of fully itemized bills. Each
service and supply must be individually identified and the first claim
submitted for the heart transplantation must include a copy of the
admission history and physical examination; and
(3) Report any significant decrease in the experience level or
survival rates and loss of key members of the transplant team to the
Director, OCHAMPUS.
(iv) Hospitals, psychiatric. A psychiatric hospital is an
institution
[[Page 167]]
which is engaged primarily in providing services to inpatients for the
diagnosis and treatment of mental disorders.
(A) There are two major categories of psychiatric hospitals:
(1) The private psychiatric hospital category includes both
proprietary and the not-for-profit nongovernmental institutions.
(2) The second category is those psychiatric hospitals that are
controlled, financed, and operated by departments or agencies of the
local, state, or Federal Government and always are operated on a not-
for-profit basis.
(B) In order for the services of a psychiatric hospital to be
covered, the hospital shall comply with the provisions outlined in
paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be
accredited under the JCAHO Accreditation Manual for Hospitals (AMH)
standards in order for their services to be cost-shared under CHAMPUS.
In the case of those psychiatric hospitals that are not JCAHO-accredited
because they have not been in operation a sufficient period of time to
be eligible to request an accreditation survey by the JCAHO, the
Director, OCHAMPUS, or a designee, may grant temporary approval if the
hospital is certified and participating under Title XVIII of the Social
Security Act (Medicare, Part A). This temporary approval expires 12
months from the date on which the psychiatric hospital first becomes
eligible to request an accreditation survey by the JCAHO.
(C) Factors to be considered in determining whether CHAMPUS will
cost-share care provided in a psychiatric hospital include, but are not
limited to, the following considerations:
(1) Is the prognosis of the patient such that care provided will
lead to resolution or remission of the mental illness to the degree that
the patient is of no danger to others, can perform routine daily
activities, and can be expected to function reasonably outside the
inpatient setting?
(2) Can the services being provided be provided more economically in
another facility or on an outpatient basis?
(3) Are the charges reasonable?
(4) Is the care primarily custodial or domiciliary? (Custodial or
domiciliary care of the permanently mentally ill or retarded is not a
benefit under the Basic Program.)
(D) Although psychiatric hospitals are accredited under the JCAHO
AMH standards, their medical records must be maintained in accordance
with the JCAHO Consolidated Standard Manual for Child, Adolescent, and
Adult Psychiatric, Alcoholism, and Drug Abuse Facilities and Facilities
Serving the Mentally Retarded, along with the requirements set forth in
Sec. 199.7(b)(3). The hospital is responsible for assuring that patient
services and all treatment are accurately documented and completed in a
timely manner.
(v) Hospitals, long-term (tuberculosis, chronic care, or
rehabilitation). To be considered a long-term hospital, an institution
for patients that have tuberculosis or chronic diseases must be an
institution (or distinct part of an institution) primarily engaged in
providing by or under the supervision of a physician appropriate medical
or surgical services for the diagnosis and active treatment of the
illness or condition in which the institution specializes.
(A) In order for the service of long-term hospitals to be covered,
the hospital must comply with the provisions outlined in paragraph
(b)(4)(i) of this section. In addition, in order for services provided
by such hospitals to be covered by CHAMPUS, they must be primarily for
the treatment of the presenting illness.
(B) Custodial or domiciliary care is not coverable under CHAMPUS,
even if rendered in an otherwise authorized long-term hospital.
(C) The controlling factor in determining whether a beneficiary's
stay in a long-term hospital is coverable by CHAMPUS is the level of
professional care, supervision, and skilled nursing care that the
beneficiary requires, in addition to the diagnosis, type of condition,
or degree of functional limitations. The type and level of medical
services required or rendered is controlling for purposes of extending
CHAMPUS benefits; not the type of provider or condition of the
beneficiary.
(vi) Skilled nursing facility. A skilled nursing facility is an
institution (or a distinct part of an institution) that is
[[Page 168]]
engaged primarily in providing to inpatients medically necessary skilled
nursing care, which is other than a nursing home or intermediate
facility, and which:
(A) Has policies that are developed with the advice of (and with
provisions for review on a periodic basis by) a group of professionals,
including one or more physicians and one or more registered nurses, to
govern the skilled nursing care and related medical services it
provides.
(B) Has a physician, a registered nurse, or a medical staff
responsible for the execution of such policies.
(C) Has a requirement that the medical care of each patient must be
under the supervision of a physician, and provides for having a
physician available to furnish necessary medical care in case of an
emergency.
(D) Maintains clinical records on all patients.
(E) Provides 24-hour skilled nursing service that is sufficient to
meet nursing needs in accordance with the policies developed as provided
in paragraph (b)(4)(iv)(A) of this section, and has at least one
registered professional nurse employed full-time.
(F) Provides appropriate methods and procedures for the dispensing
and administering of drugs and biologicals.
(G) Has in effect a utilization review plan that is operational and
functioning.
(H) In the case of an institution in a state in which state or
applicable local law provides for the licensing of this type facility,
the institution:
(1) Is licensed pursuant to such law, or
(2) Is approved by the agency of such state or locality responsible
for licensing such institutions as meeting the standards established for
such licensing.
(I) Has in effect an operating plan and budget.
(J) Meets such provisions of the most current edition of the Life
Safety Code \8\ as are applicable to nursing facilities; except that if
the Secretary of Health and Human Services has waived, for such periods,
as deemed appropriate, specific provisions of such code which, if
rigidly applied, would result in unreasonable hardship upon a nursing
facility.
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\8\ Compiled and published by the National Fire Protection
Association, Batterymarch Park, Quincy, Massachusetts 02269.
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(vii) Residential treatment centers. This paragraph (b)(4)(vii)
establishes standards and requirements for residential treatment centers
(RTCs).
(A) Organization and administration.
(1) Definition. A Residential Treatment Center (RTC) is a facility
or a distinct part of a facility that provides to beneficiaries under 21
years of age a medically supervised, interdisciplinary program of mental
health treatment. An RTC is appropriate for patients whose predominant
symptom presentation is essentially stabilized, although not resolved,
and who have persistent dysfunction in major life areas. The extent and
pervasiveness of the patient's problems require a protected and highly
structured therapeutic environment. Residential treatment is
differentiated from:
(i) Acute psychiatric care, which requires medical treatment and 24-
hour availability of a full range of diagnostic and therapeutic services
to establish and implement an effective plan of care which will reverse
life-threatening and/or severely incapacitating symptoms;
(ii) Partial hospitalization, which provides a less than 24-hour-
per-day, seven-day-per-week treatment program for patients who continue
to exhibit psychiatric problems but can function with support in some of
the major life areas;
(iii) A group home, which is a professionally directed living
arrangement with the availability of psychiatric consultation and
treatment for patients with significant family dysfunction and/or
chronic but stable psychiatric disturbances;
(iv) Therapeutic school, which is an educational program
supplemented by psychological and psychiatric services;
(v) Facilities that treat patients with a primary diagnosis of
chemical abuse or dependence; and
(vi) Facilities providing care for patients with a primary diagnosis
of mental retardation or developmental disability.
(2) Eligibility.
[[Page 169]]
(i) Every RTC must be certified pursuant to CHAMPUS certification
standards. Such standards shall incorporate the basic standards set
forth in paragraphs (b)(4)(vii) (A) through (D) of this section, and
shall include such additional elaborative criteria and standards as the
Director, OCHAMPUS determines are necessary to implement the basic
standards.
(ii) To be eligible for CHAMPUS certification, the facility is
required to be licensed and fully operational for six months (with a
minimum average daily census of 30 percent of total bed capacity) and
operate in substantial compliance with state and federal regulations.
(iii) The facility is currently accredited by the Joint Commission
on Accreditation of Healthcare Organizations (JCAHO) under the current
edition of the Manual for Mental Health, Chemical Dependency, and Mental
Retardation/Developmental Disabilities Services which is available from
JCAHO, P.O. Box 75751, Chicago, IL 60675.
(iv) The facility has a written participation agreement with
OCHAMPUS. The RTC is not a CHAMPUS-authorized provider and CHAMPUS
benefits are not paid for services provided until the date upon which a
participation agreement is signed by the Director, OCHAMPUS.
(3) Governing body.
(i) The RTC shall have a governing body which is responsible for the
policies, bylaws, and activities of the facility. If the RTC is owned by
a partnership or single owner, the partners or single owner are regarded
as the governing body. The facility will provide an up-to-date list of
names, addresses, telephone numbers and titles of the members of the
governing body.
(ii) The governing body ensures appropriate and adequate services
for all patients and oversees continuing development and improvement of
care. Where business relationships exist between the governing body and
facility, appropriate conflict-of-interest policies are in place.
(iii) Board members are fully informed about facility services and
the governing body conducts annual review of its performance in meeting
purposes, responsibilities, goals and objectives.
(4) Chief executive officer. The chief executive officer, appointed
by and subject to the direction of the governing body, shall assume
overall administrative responsibility for the operation of the facility
according to governing body policies. The chief executive officer shall
have five years' administrative experience in the field of mental
health. On October 1, 1997, the CEO shall possess a degree in business
administration, public health, hospital administration, nursing, social
work, or psychology, or meeting similar educational requirements as
prescribed by the Director, OCHAMPUS.
(5) Clinical Director. The clinical director, appointed by the
governing body, shall be a psychiatrist or doctoral level psychologist
who meets applicable CHAMPUS requirements for individual professional
providers and is licensed to practice in the state where the residential
treatment center is located. The clinical director shall possess
requisite education and experience, credentials applicable under state
practice and licensing laws appropriate to the professional discipline,
and a minimum of five years' clinical experience in the treatment of
children and adolescents. The clinical director shall be responsible for
planning, development, implementation, and monitoring of all clinical
activities.
(6) Medical director. The medical director, appointed by the
governing body, shall be licensed to practice medicine in the state
where the residential treatment center is located and shall possess
requisite education and experience, including graduation from an
accredited school of medicine or osteopathy, an approved residency in
psychiatry and a minimum of five years clinical experience in the
treatment of children and adolescents. The Medical Director shall be
responsible for the planning, development, implementation, and
monitoring of all activities relating to medical treatment of patients.
If qualified, the Medical Director may also serve as Clinical Director.
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(7) Medical or professional staff organization. The governing body
shall establish a medical or professional staff organization to assure
effective implementation of clinical privileging, professional conduct
rules, and other activities directly affecting patient care.
(8) Personnel policies and records. The RTC shall maintain written
personnel policies, updated job descriptions and personnel records to
assure the selection of qualified personnel and successful job
performance of those personnel.
(9) Staff development. The facility shall provide appropriate
training and development programs for administrative, professional
support, and direct care staff.
(10) Fiscal accountability. The RTC shall assure fiscal
accountability to applicable government authorities and patients.
(11) Designated teaching facilities. Students, residents, interns or
fellows providing direct clinical care are under the supervision of a
qualified staff member approved by an accredited university. The
teaching program is approved by the Director, OCHAMPUS.
(12) Emergency reports and records. The facility notifies OCHAMPUS
of any serious occurrence involving CHAMPUS beneficiaries.
(B) Treatment services.
(1) Staff composition.
(i) The RTC shall follow written plans which assure that medical and
clinical patient needs will be appropriately addressed 24 hours a day,
seven days a week by a sufficient number of fully qualified (including
license, registration or certification requirements, educational
attainment, and professional experience) health care professionals and
support staff in the respective disciplines. Clinicians providing
individual, group, and family therapy meet CHAMPUS requirements as
qualified mental health providers and operate within the scope of their
licenses. The ultimate authority for planning, development,
implementation, and monitoring of all clinical activities is vested in a
psychiatrist or doctoral level psychologist. The management of medical
care is vested in a physician.
(ii) The RTC shall ensure adequate coverage by fully qualified staff
during all hours of operation, including physician availability, other
professional staff coverage, and support staff in the respective
disciplines.
(2) Staff qualifications. The RTC will have a sufficient number of
qualified mental health providers, administrative, and support staff to
address patients' clinical needs and to coordinate the services
provided. RTCs which employ individuals with master's or doctoral level
degrees in a mental health discipline who do not meet the licensure,
certification and experience requirements for a qualified mental health
provider but are actively working toward licensure or certification, may
provide services within the all-inclusive per diem rate, provided the
individual works under the clinical supervision of a fully qualified
mental health provider employed by the RTC. All other program services
shall be provided by trained, licensed staff.
(3) Patient rights.
(i) The RTC shall provide adequate protection for all patient
rights, including rights provided by law, privacy, personnel rights,
safety, confidentiality, informed consent, grievances, and personal
dignity.
(ii) The facility has a written policy regarding patient abuse and
neglect.
(iii) Facility marketing and advertising meets professional
standards.
(4) Behavioral management. The RTC shall adhere to a comprehensive,
written plan of behavioral management, developed by the clinical
director and the medical or professional staff and approved by the
governing body, including strictly limited procedures to assure that the
restraint or seclusion are used only in extraordinary circumstances, are
carefully monitored, and are fully documented. Only trained and
clinically privileged RNs or qualified mental health professionals may
be responsible for the implementation of seclusion and restraint
procedures in an emergency situation.
(5) Admission process. The RTC shall maintain written policies and
procedures to ensure that, prior to an admission, a determination is
made, and approved pursuant to CHAMPUS preauthorization requirements,
that
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the admission is medically and/or psychologically necessary and the
program is appropriate to meet the patient's needs. Medical and/or
psychological necessity determinations shall be rendered by qualified
mental health professionals who meet CHAMPUS requirements for individual
professional providers and who are permitted by law and by the facility
to refer patients for admission.
(6) Assessments. The professional staff of the RTC shall complete a
current multidisciplinary assessment which includes, but is not limited
to physical, psychological, developmental, family, educational, social,
spiritual and skills assessment of each patient admitted. Unless
otherwise specified, all required clinical assessments are completed
prior to development of the multidisciplinary treatment plan.
(7) Clinical formulation. A qualified mental health professional of
the RTC will complete a clinical formulation on all patients. The
clinical formulation will be reviewed and approved by the responsible
individual professional provider and will incorporate significant
findings from each of the multidisciplinary assessments. It will provide
the basis for development of an interdisciplinary treatment plan.
(8) Treatment planning. A qualified mental health professional shall
be responsible for the development, supervision, implementation, and
assessment of a written, individualized, interdisciplinary plan of
treatment, which shall be completed within 10 days of admission and
shall include individual, measurable, and observable goals for
incremental progress and discharge. A preliminary treatment plan is
completed within 24 hours of admission and includes at least an
admission note and orders written by the admitting mental health
professional. The master treatment plan is reviewed and revised at least
every 30 days, or when major changes occur in treatment.
(9) Discharge and transition planning. The RTC shall maintain a
transition planning process to address adequately the anticipated needs
of the patient prior to the time of discharge. The planning involves
determining necessary modifications in the treatment plan, facilitating
the termination of treatment, and identifying resources to maintain
therapeutic stability following discharge.
(10) Clinical documentation. Clinical records shall be maintained on
each patient to plan care and treatment and provide ongoing evaluation
of the patient's progress. All care is documented and each clinical
record contains at least the following: demographic data, consent forms,
pertinent legal documents, all treatment plans and patient assessments,
consultation and laboratory reports, physician orders, progress notes,
and a discharge summary. All documentation will adhere to applicable
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3).
An appropriately qualified records administrator or technician will
supervise and maintain the quality of the records. These requirements
are in addition to other records requirements of this part, and
documentation requirements of the Joint Commission on Accreditation of
Healthcare Organizations.
(11) Progress notes. RTC's shall document the course of treatment
for patients and families using progress notes which provide information
to review, analyze, and modify the treatment plans. Progress notes are
legible, contemporaneous, sequential, signed and dated and adhere to
applicable provisions of the Manual of Mental Health, Chemical
Dependency, and Mental Retardation/Development Disabilities Services and
requirements set forth in Sec. 199.7(b)(3).
(12) Therapeutic services.
(i) Individual, group, and family psychotherapy are provided to all
patients, consistent with each patient's treatment plan, by qualified
mental health providers.
(ii) A range of therapeutic activities, directed and staffed by
qualified personnel, are offered to help patients meet the goals of the
treatment plan.
(iii) Therapeutic educational services are provided or arranged that
are appropriate to the patients educational and therapeutic needs.
(13) Ancillary services. A full range of ancillary services is
provided. Emergency services include policies and procedures for
handling emergencies with
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qualified personnel and written agreements with each facility providing
the service. Other ancillary services include physical health, pharmacy
and dietary services.
(C) Standards for physical plant and environment.
(1) Physical environment. The buildings and grounds of the RTC shall
be maintained so as to avoid health and safety hazards, be supportive of
the services provided to patients, and promote patient comfort, dignity,
privacy, personal hygiene, and personal safety.
(2) Physical plant safety. The RTC shall be of permanent
construction and maintained in a manner that protects the lives and
ensures the physical safety of patients, staff, and visitors, including
conformity with all applicable building, fire, health, and safety codes.
(3) Disaster planning. The RTC shall maintain and rehearse written
plan for taking care of casualities and handling other consequences
arising from internal and external disasters.
(D) Standards for evaluation system.
(1) Quality assessment and improvement. The RTC shall develop and
implement a comprehensive quality assurance and quality improvement
program that monitors the quality, efficiency, appropriateness, and
effectiveness of the care, treatments, and services it provides for
patients and their families, primarily utilizing explicit clinical
indicators to evaluate all functions of the RTC and contribute to an
ongoing process of program improvement. The clinical director is
responsible for developing and implementing quality assessment and
improvement activities throughout the facility.
(2) Utilization review. The RTC shall implement a utilization review
process, pursuant to a written plan approved by the professional staff,
the administration, and the governing body, that assesses the
appropriateness of admission, continued stay, and timeliness of
discharge as part of an effort to provide quality patient care in a
cost-effective manner. Findings of the utilization review process are
used as a basis for revising the plan of operation, including a review
of staff qualifications and staff composition.
(3) Patient records review. The RTC shall implement a process,
including monthly reviews of a representative sample of patient records,
to determine the completeness and accuracy of the patient records and
the timeliness and pertinence of record entries, particularly with
regard to regular recording of progress/non-progress in treatment.
(4) Drug utilization review. The RTC shall implement a comprehensive
process for the monitoring and evaluating of the prophylactic,
therapeutic, and empiric use of drugs to assure that medications are
provided appropriately, safely, and effectively.
(5) Risk management. The RTC shall implement a comprehensive risk
management program, fully coordinated with other aspects of the quality
assurance and quality improvement program, to prevent and control risks
to patients and staff and costs associated with clinical aspects of
patient care and safety.
(6) Infection control. The RTC shall implement a comprehensive
system for the surveillance, prevention, control, and reporting of
infections acquired or brought into the facility.
(7) Safety. The RTC shall implement an effective program to assure a
safe environment for patients, staff, and visitors, including an
incident report system, a continuous safety surveillance system, and an
active multidisciplinary safety committee.
(8) Facility evaluation. The RTC annually evaluates accomplishment
of the goals and objectives of each clinical program and service of the
RTC and reports findings and recommendations to the governing body.
(E) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(vii), of this section in
order for the services of an RTC to be authorized, the RTC shall have
entered into a Participation Agreement with OCHAMPUS. The period of a
participation agreement shall be specified in the agreement, and will
generally be for not more than five years. Participation agreements
entered into prior April 6, 1995 must be renewed not later than October
1, 1995. In addition to review of a facility's application and
supporting documentation, an on-site inspection by OCHAMPUS authorized
personnel may
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be required prior to signing a Participation Agreement. Retroactive
approval is not given. In addition, the Participation Agreement shall
include provisions that the RTC shall, at a minimum:
(1) Render residential treatment center impatient services to
eligible CHAMPUS beneficiaries in need of such services, in accordance
with the participation agreement and CHAMPUS regulation;
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14(f) or such other method as determined by the
Director, OCHAMPUS;
(3) Accept the CHAMPUS all-inclusive per diem rate as payment in
full and collect from the CHAMPUS beneficiary or the family of the
CHAMPUS beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of CHAMPUS;
(4) Make all reasonable efforts acceptable to the Director,
OCHAMPUS, to collect those amounts, which represents the beneficiary's
liability, as defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to CHAMPUS;
(6) Submit claims for services provided to CHAMPUS beneficiaries at
least 30 days (except to the extent a delay is necessitated by efforts
to first collect from other health insurance). If claims are not
submitted at least every 30 days, the RTC agrees not to bill the
beneficiary or the beneficiary's family for any amounts disallowed by
CHAMPUS;
(7) Certify that:
(i) It is and will remain in compliance with the provisions of
paragraph (b)(4)(vii) of this section establishing standards for
Residential Treatment Centers;
(ii) It has conducted a self assessment of the facility's compliance
with the CHAMPUS Standards for Residential Treatment Centers Serving
Children and Adolescents with Mental Disorders, as issued by the
Director, OCHAMPUS and notified the Director, OCHAMPUS of any matter
regarding which the facility is not in compliance with such standards;
and
(iii) It will maintain compliance with the CHAMPUS Standards for
Residential Treatment Centers Serving Children and Adolescents with
Mental Disorders, as issued by the Director, OCHAMPUS, except for any
such standards regarding which the facility notifies the Director,
OCHAMPUS that it is not in compliance.
(8) Designate an individual who will act as liaison for CHAMPUS
inquiries. The RTC shall inform OCHAMPUS in writing of the designated
individual;
(9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data
certified by an independent accounting firm or other agency as
authorized by the Director, OCHAMPUS;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning preauthorization,
concurrent care review, claims processing, beneficiary liability, double
coverage, utilization and quality review and other matters;
(11) Grant the Director, OCHAMPUS, or designee, the right to conduct
quality assurance audits or accounting audits with full access to
patients and records (including records relating to patients who are not
CHAMPUS beneficiaries) to determine the quality and cost-effectiveness
of care rendered. The audits may be conducted on a scheduled or
unscheduled (unannounced) basis. This right to audit/review includes,
but is not limited to:
(i) Examination of fiscal and all other records of the RTC which
would confirm compliance with the participation agreement and
designation as an authorized CHAMPUS RTC provider;
(ii) Conducting such audits of RTC records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspections conducted by
federal, state and local government, and private agencies and
organizations;
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(iv) Conducting on-site inspections of the facilities of the RTC and
interviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required;
(v) Audits conducted by the United States General Accounting Office.
(F) Other requirements applicable to RTCs.
(1) Even though an RTC may qualify as a CHAMPUS-authorized provider
and may have entered into a participation agreement with CHAMPUS,
payment by CHAMPUS for particular services provided is contingent upon
the RTC also meeting all conditions set forth in Sec. 199.4 especially
all requirements of paragraph (b)(4) of that section.
(2) The RTC shall provide inpatient services to CHAMPUS
beneficiaries in the same manner it provides inpatient services to all
other patients. The RTC may not discriminate against CHAMPUS
beneficiaries in any manner, including admission practices, placement in
special or separate wings or rooms, or provisions of special or limited
treatment.
(3) The RTC shall assure that all certifications and information
provided to the Director, OCHAMPUS incident to the process of obtaining
and retaining authorized provider status is accurate and that it has no
material errors or omissions. In the case of any misrepresentations,
whether by inaccurate information being provided or material facts
withheld, authorized status will be denied or terminated, and the RTC
will be ineligible for consideration for authorized provider status for
a two year period.
(viii) Christian Science sanatoriums. The services obtained in
Christian Science sanatoriums are covered by CHAMPUS as inpatient care.
To qualify for coverage, the sanatorium either must be operated by, or
be listed and certified by the First Church of Christ, Scientist.
(ix) Infirmaries. Infirmaries are facilities operated by student
health departments of colleges and universities to provide inpatient or
outpatient care to enrolled students. Charges for care provided by such
facilities will not be cost-shared by CHAMPUS if the student would not
be charged in the absence of CHAMPUS, or if student is covered by a
mandatory student health insurance plan, in which enrollment is required
as a part of the student's school registration and the charges by the
college or university include a premium for the student health insurance
coverage. CHAMPUS will cost-share only if enrollment in the student
health program or health insurance plan is voluntary.
Note: An infirmary in a boarding school also may qualify under this
provision, subject to review and approval by the Director, OCHAMPUS or a
designee.
(x) Other special institution providers. (A) General. (1) Care
provided by certain special institutional providers (on either an
inpatient or outpatient basis), may be cost-shared by CHAMPUS under
specified circumstances and only if the provider is specifically
identified in paragraph (b)(4)(x) of this section.
(i) The course of treatment is prescribed by a doctor of medicine or
osteopathy.
(ii) The patient is under the supervision of a physician during the
entire course of the inpatient admission or the outpatient treatment.
(iii) The type and level of care and service rendered by the
institution are otherwise authorized by this part.
(iv) The facility meets all licensing or other certification
requirements that are extant in the jurisdiction in which the facility
is located geographically.
(v) Is other than a nursing home, intermediate care facility, home
for the aged, halfway house, or other similar institution.
(vi) Is accredited by the JCAH or other CHAMPUS-approved
accreditation organization, if an appropriate accreditation program for
the given type of facility is available. As future accreditation
programs are developed to cover emerging specialized treatment programs,
such accreditation will be a prerequisite to coverage by CHAMPUS for
services provided by such facilities.
(2) To ensure that CHAMPUS beneficiaries are provided quality care
at a reasonable cost when treated by a special institutional provider,
the Director, OCHAMPUS may:
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(i) Require prior approval of all admissions to special
institutional providers.
(ii) Set appropriate standards for special institutional providers
in addition to or in the absence of JCAHO accreditation.
(iii) Monitor facility operations and treatment programs on a
continuing basis and conduct onsite inspections on a scheduled and
unscheduled basis.
(iv) Negotiate agreements of participation.
(v) Terminate approval of a case when it is ascertained that a
departure from the facts upon which the admission was based originally
has occurred.
(vi) Declare a special institutional provider not eligible for
CHAMPUS payment if that facility has been found to have engaged in
fraudulent or deceptive practices.
(3) In general, the following disclaimers apply to treatment by
special institutional providers:
(i) Just because one period or episode of treatment by a facility
has been covered by CHAMPUS may not be construed to mean that later
episodes of care by the same or similar facility will be covered
automatically.
(ii) The fact that one case has been authorized for treatment by a
specific facility or similar type of facility may not be construed to
mean that similar cases or later periods of treatment will be extended
CHAMPUS benefits automatically.
(B) Types of providers. The following is a list of facilities that
have been designated specifically as special institutional providers.
(1) Free-standing ambulatory surgical centers. Care provided by
freestanding ambulatory surgical centers may be cost-shared by CHAMPUS
under the following circumstances:
(i) The treatment is prescribed and supervised by a physician.
(ii) The type and level of care and services rendered by the center
are otherwise authorized by this part.
(iii) The center meets all licensing or other certification
requirements of the jurisdiction in which the facility is located.
(iv) The center is accredited by the JCAH, the Accreditation
Association for Ambulatory Health Care, Inc. (AAAHC), or such other
standards as authorized by the Director, OCHAMPUS.
(v) A childbirth procedure provided by a CHAMPUS-approved free-
standing ambulatory surgical center shall not be cost-shared by the
CHAMPUS unless the surgical center is also a CHAMPUS-approved birthing
center institutional provider as established by the birthing center
provider certification requirement of this Regulation.
(2)[Reserved]
(xi) Birthing centers. A birthing center is a freestanding or
institution-affiliated outpatient maternity care program which
principally provides a planned course of outpatient prenatal care and
outpatient childbirth service limited to low-risk pregnancies; excludes
care for high-risk pregnancies; limits childbirth to the use of natural
childbirth procedures; and provides immediate newborn care.
(A) Certification requirements. A birthing center which meets the
following criteria may be designated as an authorized CHAMPUS
institutional provider:
(1) The predominant type of service and level of care rendered by
the center is otherwise authorized by this part.
(2) The center is licensed to operate as a birthing center where
such license is available, or is specifically licensed as a type of
ambulatory health care facility where birthing center specific license
is not available, and meets all applicable licensing or certification
requirements that are extant in the state, county, municipality, or
other political jurisdiction in which the center is located.
(3) The center is accredited by a nationally recognized
accreditation organization whose standards and procedures have been
determined to be acceptable by the Director, OCHAMPUS, or a designee.
(4) The center complies with the CHAMPUS birthing center standards
set forth in this part.
(5) The center has entered into a participation agreement with
OCHAMPUS in which the center agrees, in part, to:
(i) Participate in CHAMPUS and accept payment for maternity services
based upon the reimbursement methodology for birthing centers;
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(ii) Collect from the CHAMPUS beneficiary only those amounts that
represent the beneficiary's liability under the participation agreement
and the reimbursement methodology for birthing centers, and the amounts
for services and supplies that are not a benefit of the CHAMPUS;
(iii) Permit access by the Director, OCHAMPUS, or a designee, to the
clinical record of any CHAMPUS beneficiary, to the financial and
organizational records of the center, and to reports of evaluations and
inspections conducted by state or private agencies or organizations;
(iv) Submit claims first to all health benefit and insurance plans
primary to the CHAMPUS to which the beneficiary is entitled and to
comply with the double coverage provisions of this part;
(v) Notify CHAMPUS in writing within 7 days of the emergency
transport of any CHAMPUS beneficiary from the center to an acute care
hospital or of the death of any CHAMPUS beneficiary in the center.
(6) A birthing center shall not be a CHAMPUS-authorized
institutional provider and CHAMPUS benefits shall not be paid for any
service provided by a birthing center before the date the participation
agreement is signed by the Director, OCHAMPUS, or a designee.
(B) CHAMPUS birthing center standards. (1) Environment: The center
has a safe and sanitary environment, properly constructed, equipped, and
maintained to protect health and safety and meets the applicable
provisions of the ``Life Safety Code'' of the National Fire Protection
Association.
(2) Policies and procedures: The center has written administrative,
fiscal, personnel and clinical policies and procedures which
collectively promote the provision of high-quality maternity care and
childbirth services in an orderly, effective, and safe physical and
organizational environment.
(3) Informed consent: Each CHAMPUS beneficiary admitted to the
center will be informed in writing at the time of admission of the
nature and scope of the center's program and of the possible risks
associated with maternity care and childbirth in the center.
(4) Beneficiary care: Each woman admitted will be cared for by or
under the direct supervision of a specific physician or a specific
certified nurse-midwife who is otherwise eligible as a CHAMPUS
individual professional provider.
(5) Medical direction: The center has written memoranda of
understanding (MOU) for routine consultation and emergency care with an
obstetrician-gynecologist who is certified or is eligible for
certification by the American Board of Obstetrics and Gynecology or the
American Osteopathic Board of Obstetrics and Gynecology and with a
pediatrician who is certified or eligible for certification by the
American Board of Pediatrics or by the American Osteopathic Board of
Pediatrics, each of whom have admitting privileges to at least one
backup hospital. In lieu of a required MOU, the center may employ a
physician with the required qualifications. Each MOU must be renewed
annually.
(6) Admission and emergency care criteria and procedures. The center
has written clinical criteria and administrative procedures, which are
reviewed and approved annually by a physician related to the center as
required by paragraph (b)(4)(xi)(B)(5) above, for the exclusion of a
woman with a high-risk pregnancy from center care and for management of
maternal and neonatal emergencies.
(7) Emergency treatment. The center has a written memorandum of
understanding (MOU) with at least one backup hospital which documents
that the hospital will accept and treat any woman or newborn transferred
from the center who is in need of emergency obstetrical or neonatal
medical care. In lieu of this MOU with a hospital, a birthing center may
have an MOU with a physician, who otherwise meets the requirements as a
CHAMPUS individual professional provider, and who has admitting
privileges to a backup hospital capable of providing care for critical
maternal and neonatal patients as demonstrated by a letter from that
hospital certifying the scope and expected duration of the admitting
privileges granted by the hospital to the physician. The MOU must be
reviewed annually.
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(8) Emergency medical transportation. The center has a written
memorandum of understanding (MOU) with at least one ambulance service
which documents that the ambulance service is routinely staffed by
qualified personnel who are capable of the management of critical
maternal and neonatal patients during transport and which specifies the
estimated transport time to each backup hospital with which the center
has arranged for emergency treatment as required in paragraph
(b)(4)(xi)(B)(7) above. Each MOU must be renewed annually.
(9) Professional staff. The center's professional staff is legally
and professionally qualified for the performance of their professional
responsibilities.
(10) Medical records. The center maintains full and complete written
documentation of the services rendered to each woman admitted and each
newborn delivered. A copy of the informed consent document required by
paragraph (b)(4)(xi)(B)(3), above, which contains the original signature
of the CHAMPUS beneficiary, signed and dated at the time of admission,
must be maintained in the medical record of each CHAMPUS beneficiary
admitted.
(11) Quality assurance. The center has an organized program for
quality assurance which includes, but is not limited to, written
procedures for regularly scheduled evaluation of each type of service
provided, of each mother or newborn transferred to a hospital, and of
each death within the facility.
(12) Governance and administration. The center has a govening body
legally responsible for overall operation and maintenance of the center
and a full-time employee who has authority and responsibility for the
day-to-day operation of the center.
(xii) Psychiatric partial hospitalization programs. Paragraph
(b)(4)(xii) of this section establishes standards and requirements for
psychiatric partial hospitalization programs.
(A) Organization and administration.
(1) Definition. Partial hospitalization is defined as a time-
limited, ambulatory, active treatment program that offers
therapeutically intensive, coordinated, and structured clinical services
within a stable therapeutic milieu. Partial hospitalization programs
serve patients who exhibit psychiatric symptoms, disturbances of
conduct, and decompensating conditions affecting mental health.
(2) Eligibility.
(i) Every psychiatric partial hospitalization program must be
certified pursuant to CHAMPUS certification standards. Such standards
shall incorporate the basic standards set forth in paragraphs
(b)(4)(xii) (A) through (D) of this section, and shall include such
additional elaborative criteria and standards as the Director, OCHAMPUS
determines are necessary to implement the basic standards. Each
psychiatric partial hospitalization program must be either a distinct
part of an otherwise authorized institutional provider or a freestanding
program.
(ii) To be eligible for CHAMPUS certification, the facility is
required to be licensed and fully operational for a period of at least
six months (with a minimum patient census of at least 30 percent of bed
capacity) and operate in substantial compliance with state and federal
regulations.
(iii) The facility is currently accredited by the Joint Commission
on Accreditation of Healthcare Organizations under the current edition
of the Accreditation Manual for Mental Health, Chemical Dependency, and
Mental Retardation/Developmental Disabilities Services.
(iv) The facility has a written participation agreement with
OCHAMPUS. On October 1, 1995, the PHP is not a CHAMPUS-authorized
provider and CHAMPUS benefits are not paid for services provided until
the date upon which a participation agreement is signed by the Director,
OCHAMPUS. Partial hospitalization is capable of providing an
interdisciplinary program of medical and therapeutic services a minimum
of three hours per day, five days per week, and may include full- or
half-day, evening, and weekend treatment programs.
(3) Governing body.
(i) The PHP shall have a governing body which is responsible for the
policies, bylaws, and activities of the facilities. If the PHP is owned
by a partnership or single owner, the partners or single owner are
regarded as the governing body. The facility will provide
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an up-to-date list of names, addresses, telephone numbers, and titles of
the members of the governing body.
(ii) The governing body ensures appropriate and adequate services
for all patients and oversees continuing development and improvement of
care. Where business relationships exist between the governing body and
facility, appropriate conflict-of-interest policies are in place.
(iii) Board members are fully informed about facility services and
the governing body conducts annual review of its performance in meeting
purposes, responsibilities, goals and objectives.
(4) Chief executive officer. The Chief Executive Officer, appointed
by and subject to the direction of the governing body, shall assume
overall administrative responsibility for the operation of the facility
according to governing body policies. The chief executive officer shall
have five years' administrative experience in the field of mental
health. On October 1, 1997, the CEO shall possess a degree in business
administration, public health, hospital administration, nursing, social
work, or psychology, or meet similar educational requirements as
prescribed by the Director, OCHAMPUS.
(5) Clinical Director. The clinical director, appointed by the
governing body, shall be a psychiatrist or doctoral level psychologist
who meets applicable CHAMPUS requirements for individual professional
providers and is licensed to practice in the state where the PHP is
located. The clinical director shall possess requisite education and
experience, credentials applicable under state practice and licensing
laws appropriate to the professional discipline, and a minimum of five
years' clinical experience in the treatment of mental disorders specific
to the ages and disabilities of the patients served. The clinical
director shall be responsible for planning, development, implementation,
and monitoring of all clinical activities.
(6) Medical director. The medical director, appointed by the
governing body, shall be licensed to practice medicine in the state
where the residential treatment center is located and shall possess
requisite education and experience, including graduation from an
accredited school of medicine or osteopathy, an approved residency in
psychiatry and a minimum of five years clinical experience in the
treatment of mental disorders specific to the ages and disabilities of
the patients served. The Medical Director shall be responsible for the
planning, development, implementation, and monitoring of all activities
relating to medical treatment of patients. If qualified, the Medical
Director may also serve as Clinical Director.
(7) Medical or professional staff organization. The governing body
shall establish a medical or professional staff organization to assure
effective implementation of clinical privileging, professional conduct
rules, and other activities directly affecting patient care.
(8) Personnel policies and records. The PHP shall maintain written
personnel policies, updated job descriptions, personnel records to
assure the selection of qualified personnel and successful job
performance of those personnel.
(9) Staff development. The facility shall provide appropriate
training and development programs for administrative, professional
support, and direct care staff.
(10) Fiscal accountability. The PHP shall assure fiscal
accountability to applicable government authorities and patients.
(11) Designated teaching facilities. Students, residents, interns,
or fellows providing direct clinical care are under the supervision of a
qualified staff member approved by an accredited university. The
teaching program is approved by the Director, OCHAMPUS.
(12) Emergency reports and records. The facility notifies OCHAMPUS
of any serious occurrence involving CHAMPUS beneficiaries.
(B) Treatment services.
(1) Staff composition.
(i) The PHP shall ensure that patient care needs will be
appropriately addressed during all hours of operation by a sufficient
number of fully qualified (including license, registration or
certification requirements, educational attainment, and professional
experience) health care professionals. Clinicians providing individual,
group, and family therapy meet CHAMPUS requirements as qualified mental
health
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providers, and operate within the scope of their licenses. The ultimate
authority for managing care is vested in a psychiatrist or licensed
doctor level psychologist. The management of medical care is vested in a
physician.
(ii) The PHP shall establish and follow written plans to assure
adequate staff coverage during all hours of operation, including
physician availability, other professional staff coverage, and support
staff in the respective disciplines.
(2) Staff qualifications. The PHP will have a sufficient number of
qualified mental health providers, administrative, and support staff to
address patients' clinical needs and to coordinate the services
provided. PHPs which employ individuals with master's or doctoral level
degrees in a mental health discipline who do not meet the licensure,
certification and experience requirements for a qualified mental health
provider but are actively working toward licensure or certification, may
provide services within the all-inclusive per diem rate, provided the
individual works under the clinical supervision of a fully qualified
mental health provider employed by the PHP. All other program services
shall be provided by trained, licensed staff.
(3) Patient rights.
(i) The PHP shall provide adequate protection for all patient
rights, including rights provided by law, privacy, personal rights,
safety, confidentiality, informed consent, grievances, and personal
dignity.
(ii) The facility has a written policy regarding patient abuse and
neglect.
(iii) Facility marketing and advertising meets professional
standards.
(4) Behavioral management. The PHP shall adhere to a comprehensive,
written plan of behavior management, developed by the clinical director
and the medical or professional staff and approved by the governing
body, including strictly limited procedures to assure that restraint or
seclusion are used only in extraordinary circumstances, are carefully
monitored, and are fully documented. Only trained and clinically
privileged RNs or qualified mental health professionals may be
responsible for implementation of seclusion and restraint procedures in
an emergency situation.
(5) Admission process. The PHP shall maintain written policies and
procedures to ensure that prior to an admission, a determination is
made, and approved pursuant to CHAMPUS preauthorization requirements,
that the admission is medically and/or psychologically necessary and the
program is appropriate to meet the patient's needs. Medical and/or
psychological necessity determinations shall be rendered by qualified
mental health professionals who meet CHAMPUS requirements for individual
professional providers and who are permitted by law and by the facility
to refer patients for admission.
(6) Assessments. The professional staff of the PHP shall complete a
multidisciplinary assessment which includes, but is not limited to
physical health, psychological health, physiological, developmental,
family, educational, spiritual, and skills assessment of each patient
admitted. Unless otherwise specified, all required clinical assessment
are completed prior to development of the interdisciplinary treatment
plan.
(7) Clinical formulation. A qualified mental health provider of the
PHP will complete a clinical formulation on all patients. The clinical
formulation will be reviewed and approved by the responsible individual
professional provider and will incorporate significant findings from
each of the multidisciplinary assessments. It will provide the basis for
development of an interdisciplinary treatment plan.
(8) Treatment planning. A qualified mental health professional with
admitting privileges shall be responsible for the development,
supervision, implementation, and assessment of a written,
individualized, interdisciplinary plan of treatment, which shall be
completed by the fifth day following admission to a full-day PHP, or by
the seventh day following admission to a half-day PHP, and shall include
measurable and observable goals for incremental progress and discharge.
The treatment plan shall undergo review at least every two weeks, or
when major changes occur in treatment.
[[Page 180]]
(9) Discharge and transition planning. The PHP shall develop an
individualized transition plan which addresses anticipated needs of the
patient at discharge. The transition plan involves determining necessary
modifications in the treatment plan, facilitating the termination of
treatment, and identifying resources for maintaining therapeutic
stability following discharge.
(10) Clinical documentation. Clinical records shall be maintained on
each patient to plan care and treatment and provide ongoing evaluation
of the patient's progress. All care is documented and each clinical
record contains at least the following: demographic data, consent forms,
pertinent legal documents, all treatment plans and patient assessments,
consultation and laboratory reports, physician orders, progress notes,
and a discharge summary. All documentation will adhere to applicable
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3).
An appropriately qualified records administrator or technician will
supervise and maintain the quality of the records. These requirements
are in addition to other records requirements of this part, and
documentation requirements of the Joint Commission on Accreditation of
Health Care Organization.
(11) Progress notes. PHPs shall document the course of treatment for
patients and families using progress notes which provide information to
review, analyze, and modify the treatment plans. Progress notes are
legible, contemporaneous, sequential, signed and dated and adhere to
applicable provisions of the Manual for Mental Health, Chemical
Dependency, and Mental Retardation/Developmental Disabilities Services
and requirements set forth in section 199.7(b)(3).
(12) Therapeutic services.
(i) Individual, group, and family therapy are provided to all
patients, consistent with each patient's treatment plan by qualified
mental health providers.
(ii) A range of therapeutic activities, directed and staffed by
qualified personnel, are offered to help patients meet the goals of the
treatment plan.
(iii) Educational services are provided or arranged that are
appropriate to the patient's needs.
(13) Ancillary services. A full range of ancillary services are
provided. Emergency services include policies and procedures for
handling emergencies with qualified personnel and written agreements
with each facility providing these services. Other ancillary services
include physical health, pharmacy and dietary services.
(C) Standards for physical plant and environment.
(1) Physical environment. The buildings and grounds of the PHP shall
be maintained so as to avoid health and safety hazards, be supportive of
the services provided to patients, and promote patient comfort, dignity,
privacy, personal hygiene, and personal safety.
(2) Physical plant safety. The PHP shall be of permanent
construction and maintained in a manner that protects the lives and
ensures the physical safety of patients, staff, and visitors, including
conformity with all applicable building, fire, health, and safety codes.
(3) Disaster planning. The PHP shall maintain and rehearse written
plans for taking care of casualities and handling other consequences
arising from internal and external disasters.
(D) Standards for evaluation system.
(1) Quality assessment and improvement. The PHP shall develop and
implement a comprehensive quality assurance and quality improvement
program that monitors the quality, efficiency, appropriateness, and
effectiveness of care, treatments, and services the PHP provides for
patients and their families. Explicit clinical indicators shall be used
to be used to evaluate all functions of the PHP and contribute to an
ongoing process of program improvement. The clinical director is
responsible for developing and implementing quality assessment and
improvement activities throughout the facility.
(2) Utilization review. The PHP shall implement a utilization review
process, pursuant to a written plan approved by the professional staff,
the administration and the governing body, that assesses distribution of
services, clinical necessity of treatment, appropriateness of admission,
continued stay, and timeliness of discharge, as part of an
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overall effort to provide quality patient care in a cost-effective
manner. Findings of the utilization review process are used as a basis
for revising the plan of operation, including a review of staff
qualifications and staff composition.
(3) Patient records. The PHP shall implement a process, including
regular monthly reviews of a representative sample of patient records,
to determine completeness, accuracy, timeliness of entries, appropriate
signatures, and pertinence of clinical entries. Conclusions,
recommendations, actions taken, and the results of actions are monitored
and reported.
(4) Drug utilization review. The PHP shall implement a comprehensive
process for the monitoring and evaluating of the prophylactic,
therapeutic, and empiric use of drugs to assure that medications are
provided appropriately, safely, and effectively.
(5) Risk management. The PHP shall implement a comprehensive risk
management program, fully coordinated with other aspects of the quality
assurance and quality improvement program, to prevent and control risks
to patients and staff, and to minimize costs associated with clinical
aspects of patient care and safety.
(6) Infection control. The PHP shall implement a comprehensive
system for the surveillance, prevention, control, and reporting of
infections acquired or brought into the facility.
(7) Safety. The PHP shall implement an effective program to assure a
safe environment for patients, staff, and visitors, including an
incident reporting system, disaster training and safety education, a
continuous safety surveillance system, and an active multidisciplinary
safety committee.
(8) Facility evaluation. The PHP annually evaluates accomplishment
of the goals and objectives of each clinical program component or
facility service of the PHP and reports findings and recommendations to
the governing body.
(E) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(xii) of this section, in
order for the services of a PHP to be authorized, the PHP shall have
entered into a Participation Agreement with OCHAMPUS. The period of a
Participation Agreement shall be specified in the agreement, and will
generally be for not more than five years. On October 1, 1995, the PHP
shall not be considered to be a CHAMPUS authorized provider and CHAMPUS
payments shall not be made for services provided by the PHP until the
date the participation agreement is signed by the Director, OCHAMPUS. In
addition to review of a facility's application and supporting
documentation, an on-site inspection by OCHAMPUS authorized personnel
may be required prior to signing a participation agreement. The
Participation Agreement shall include at least the following
requirements:
(1) Render partial hospitalization program services to eligible
CHAMPUS beneficiaries in need of such services, in accordance with the
participation agreement and CHAMPUS regulation.
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14, or such other method as determined by the
Director, OCHAMPUS;
(3) Accept the CHAMPUS all-inclusive per diem rate as payment in
full and collect from the CHAMPUS beneficiary or the family of the
CHAMPUS beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of CHAMPUS;
(4) Make all reasonable efforts acceptable to the Director,
OCHAMPUS, to collect those amounts, which represent the beneficiary's
liability, as defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to CHAMPUS;
(6) Submit claims for services provided to CHAMPUS beneficiaries at
least every 30 days (except to the extent a delay is necessitated by
efforts to first collect from other health insurance). If claims are not
submitted at least every 30 days, the PHP agrees not to bill the
beneficiary or the beneficiary's family for any amounts disallowed by
CHAMPUS;
(7) Certify that:
[[Page 182]]
(i) It is and will remain in compliance with the provisions of
paragraph (b)(4)(xii) of this section establishing standards for
psychiatric partial hospitalization programs;
(ii) It has conducted a self assessment of the facility's compliance
with the CHAMPUS Standards for Psychiatric Partial Hospitalization
Programs, as issued by the Director, OCHAMPUS, and notified the
Director, OCHAMPUS of any matter regarding which the facility is not in
compliance with such standards; and
(iii) It will maintain compliance with the CHAMPUS Standards for
Psychiatric Partial Hospitalization Programs, as issued by the Director,
OCHAMPUS, except for any such standards regarding which the facility
notifies the Director, OCHAMPUS that it is not in compliance.
(8) Designate an individual who will act as liaison for CHAMPUS
inquiries. The PHP shall inform OCHAMPUS in writing of the designated
individual;
(9) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS,
certified by an independent accounting firm or other agency as
authorized by the Director, OCHAMPUS;
(10) Comply with all requirements of this section applicable to
institutional providers generally concerning preauthorization,
concurrent care review, claims processing, beneficiary liability, double
coverage, utilization and quality review and other matters;
(11) Grant the Director, OCHAMPUS, or designee, the right to conduct
quality assurance audits or accounting audits with full access to
patients and records (including records relating to patients who are not
CHAMPUS beneficiaries) to determine the quality and cost-effectiveness
of care rendered. The audits may be conducted on a scheduled or
unscheduled (unannounced) basis. This right to audit/review includes,
but is not limited to:
(i) Examination of fiscal and all other records of the PHP which
would confirm compliance with the participation agreement and
designation as an authorized CHAMPUS PHP provider;
(ii) Conducting such audits of PHP records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspections conducted by
federal, state and local government, and private agencies and
organizations;
(iv) Conducting on-site inspections of the facilities of the PHP and
interreviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required;
(v) Audits conducted by the United States General Account Office.
(F) Other requirements applicable to PHPs.
(1) Even though a PHP may qualify as a CHAMPUS-authorized provider
and may have entered into a participation agreement with CHAMPUS,
payment by CHAMPUS for particular services provided is contingent upon
the PHP also meeting all conditions set forth in section 199.4 of this
part.
(2) The PHP shall provide patient services to CHAMPUS beneficiaries
in the same manner it provides inpatient services to all other patients.
The PHP may not discriminate against CHAMPUS beneficiaries in any
manner, including admission practices, placement in special or separate
wings or rooms, or provisions of special or limited treatment.
(3) The PHP shall assure that all certifications and information
provided to the Director, OCHAMPUS incident to the process of obtaining
and retaining authorized provider status is accurate and that is has no
material errors or omissions. In the case of any misrepresentations,
whether by inaccurate information being provided or material facts
withheld, authorized provider status will be denied or terminated, and
the PHP will be ineligible for consideration for authorized provider
status for a two year period.
(xiii) Hospice programs. Hospice programs must be Medicare approved
and meet all Medicare conditions of participation (42 CFR part 418) in
relation to CHAMPUS patients in order to receive payment under the
CHAMPUS program. A hospice program may be found to be out of compliance
with a particular Medicare condition of participation and still
participate in the
[[Page 183]]
CHAMPUS as long as the hospice is allowed continued participation in
Medicare while the condition of noncompliance is being corrected. The
hospice program can be either a public agency or private organization
(or a subdivision thereof) which:
(A) Is primarily engaged in providing the care and services
described under Sec. 199.4(e)(19) and makes such services available on
a 24-hour basis.
(B) Provides bereavement counseling for the immediate family or
terminally ill individuals.
(C) Provides for such care and services in individuals' homes, on an
outpatient basis, and on a short-term inpatient basis, directly or under
arrangements made by the hospice program, except that the agency or
organization must:
(1) Ensure that substantially all the core services are routinely
provided directly by hospice employees.
(2) Maintain professional management responsibility for all services
which are not directly furnished to the patient, regardless of the
location or facility in which the services are rendered.
(3) Provide assurances that the aggregate number of days of
inpatient care provided in any 12-month period does not exceed 20
percent of the aggregate number of days of hospice care during the same
period.
(4) Have an interdisciplinary group composed of the following
personnel who provide the care and services described under Sec.
199.4(e)(19) and who establish the policies governing the provision of
such care/services:
(i) A physician;
(ii) A registered professional nurse;
(iii) A social worker; and
(iv) A pastoral or other counselor.
(5) Maintain central clinical records on all patients.
(6) Utilize volunteers.
(7) The hospice and all hospice employees must be licensed in
accordance with applicable Federal, State and local laws and
regulations.
(8) The hospice must enter into an agreement with CHAMPUS in order
to be qualified to participate and to be eligible for payment under the
program. In this agreement the hospice and CHAMPUS agree that the
hospice will:
(i) Not charge the beneficiary or any other person for items or
services for which the beneficiary is entitled to have payment made
under the CHAMPUS hospice benefit.
(ii) Be allowed to charge the beneficiary for items or services
requested by the beneficiary in addition to those that are covered under
the CHAMPUS hospice benefit.
(9) Meet such other requirements as the Secretary of Defense may
find necessary in the interest of the health and safety of the
individuals who are provided care and services by such agency or
organization.
(xiv) Substance use disorder rehabilitation facilities. Paragraph
(b)(4)(xiv) of this section establishes standards and requirements for
substance use order rehabilitation facilities (SUDRF). This includes
both inpatient rehabilitation centers for the treatment of substance use
disorders and partial hospitalization centers for the treatment of
substance use disorders.
(A) Organization and administration.
(1) Definition of inpatient rehabilitation center. An inpatient
rehabilitation center is a facility, or distinct part of a facility,
that provides medically monitored, interdisciplinary addiction-focused
treatment to beneficiaries who have psychoactive substance use
disorders. Qualified health care professionals provide 24-hour, seven-
day-per-week, medically monitored assessment, treatment, and evaluation.
An inpatient rehabilitation center is appropriate for patients whose
addiction-related symptoms, or concomitant physical and emotional/
behavioral problems reflect persistent dysfunction in several major life
areas. Inpatient rehabilitation is differentiated from:
(i) Acute psychoactive substance use treatment and from treatment of
acute biomedical/emotional/behavioral problems; which problems are
either life-threatening and/or severely incapacitating and often occur
within the context of a discrete episode of addiction-related biomedical
or psychiatric dysfunction;
(ii) A partial hospitalization center, which serves patients who
exhibit emotional/behavioral dysfunction but who
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can function in the community for defined periods of time with support
in one or more of the major life areas;
(iii) A group home, sober-living environment, halfway house, or
three-quarter way house;
(iv) Therapeutic schools, which are educational programs
supplemented by addiction-focused services;
(v) Facilities that treat patients with primary psychiatric
diagnoses other than psychoactive substance use or dependence; and
(vi) Facilities that care for patients with the primary diagnosis of
mental retardation or developmental disability.
(2) Definition of partial hospitalization center for the treatment
of substance use disorders. A partial hospitalization center for the
treatment of substance use disorders is an addiction-focused service
that provides active treatment to adolescents between the ages of 13 and
18 or adults aged 18 and over. Partial hospitalization is a generic term
for day, evening, or weekend programs that treat patients with
psychoactive substance use disorders according to a comprehensive,
individualized, integrated schedule of care. A partial hospitalization
center is organized, interdisciplinary, and medically monitored. Partial
hospitalization is appropriate for those whose addiction-related
symptoms or concomitant physical and emotional/behavioral problems can
be managed outside the hospital environment for defined periods of time
with support in one or more of the major life areas.
(3) Eligibility.
(i) Every inpatient rehabilitation center and partial
hospitalization center for the treatment of substance use disorders must
be certified pursuant to CHAMPUS certification standards. Such standards
shall incorporate the basic standards set forth in paragraphs
(b)(4)(xiv) (A) through (D) of this section, and shall include such
additional elaborative criteria and standards as the Director, OCHAMPUS
determines are necessary to implement the basic standards.
(ii) To be eligible for CHAMPUS certification, the SUDRF is required
to be licensed and fully operational (with a minimum patient census of
the lesser of: six patients or 30 percent of bed capacity) for a period
of at least six months and operate in substantial compliance with state
and federal regulations.
(iii) The SUDRF is currently accredited by the Joint Commission on
Accreditation of Healthcare Organizations under the Accreditation Manual
for Mental Health, Chemical Dependency, and Mental Retardation/
Developmental Disabilities Services, or by the Commission on
Accreditation of Rehabilitation Facilities as an alcoholism and other
drug dependency rehabilitation program under the Standards Manual for
Organizations Serving People with Disabilities, or other designated
standards approved by the Director, OCHAMPUS.
(iv) The SUDRF has a written participation agreement with OCHAMPUS.
On October 1, 1995, the SUDRF is not considered a CHAMPUS-authorized
provider, and CHAMPUS benefits are not paid for services provided until
the date upon which a participation agreement is signed by the Director,
OCHAMPUS.
(4) Governing body.
(i) The SUDRF shall have a governing body which is responsible for
the policies, bylaws, and activities of the facility. If the SUDRF is
owned by a partnership or single owner, the partners or single owner are
regarded as the governing body. The facility will provide an up-to-date
list of names, addresses, telephone numbers and titles of the members of
the governing body.
(ii) The governing body ensures appropriate and adequate services
for all patients and oversees continuing development and improvement of
care. Where business relationships exist between the governing body and
facility, appropriate conflict-of-interest policies are in place.
(iii) Board members are fully informed about facility services and
the governing body conducts annual reviews of its performance in meeting
purposes, responsibilities, goals and objectives.
(5) Chief executive officer. The chief executive officer, appointed
by and
[[Page 185]]
subject to the direction of the governing body, shall assume overall
administrative responsibility for the operation of the facility
according to governing body policies. The chief executive officer shall
have five years' administrative experience in the field of mental health
or addictions. On October 1, 1997 the CEO shall possess a degree in
business administration, public health, hospital administration,
nursing, social work, or psychology, or meet similar educational
requirements as prescribed by the Director, OCHAMPUS.
(6) Clinical Director. The clinical director, appointed by the
governing body, shall be a qualified psychiatrist or doctoral level
psychologist who meets applicable CHAMPUS requirements for individual
professional providers and is licensed to practice in the state where
the SUDRF is located. The clinical director shall possess requisite
education and experience, including credentials applicable under state
practice and licensing laws appropriate to the professional discipline.
The clinical director shall satisfy at least one of the following
requirements: certification by the American Society of Addiction
Medicine; one year or 1,000 hours of experience in the treatment of
psychoactive substance use disorders; or is a psychiatrist or doctoral
level psychologist with experience in the treatment of substance use
disorders. The clinical director shall be responsible for planning,
development, implementation, and monitoring of all clinical activities.
(7) Medical director. The medical director, appointed by the
governing body, shall be licensed to practice medicine in the state
where the center is located and shall possess requisite education
including graduation from an accredited school of medicine or
osteopathy. The medical director shall satisfy at least one of the
following requirements: certification by the American Society of
Addiction Medicine; one year or 1,000 hours of experience in the
treatment of psychoactive substance use disorders; or is a psychiatrist
with experience in the treatment of substance use disorders. The medical
director shall be responsible for the planning, development,
implementation, and monitoring of all activities relating to medical
treatment of patients. If qualified, the Medical Director may also serve
as Clinical Director.
(8) Medical or professional staff organization. The governing body
shall establish a medical or professional staff organization to assure
effective implementation of clinical privileging, professional conduct
rules, and other activities directly affecting patient care.
(9) Personnel policies and records. The SUDRF shall maintain written
personnel policies, updated job descriptions, personnel records to
assure the selection of qualified personnel and successful job
performance of those personnel.
(10) Staff development. The SUDRF shall provide appropriate training
and development programs for administrative, support, and direct care
staff.
(11) Fiscal accountability. The SUDRF shall assure fiscal
accountability to applicable government authorities and patients.
(12) Designated teaching facilities. Students, residents, interns,
or fellows providing direct clinical care are under the supervision of a
qualified staff member approved by an accredited university or approved
training program. The teaching program is approved by the Director,
OCHAMPUS.
(13) Emergency reports and records. The facility notifies OCHAMPUS
of any serious occurrence involving CHAMPUS beneficiaries.
(B) Treatment services.
(1) Staff composition.
(i) The SUDRF shall follow written plans which assure that medical
and clinical patient needs will be appropriately addressed during all
hours of operation by a sufficient number of fully qualified (including
license, registration or certification requirements, educational
attainment, and professional experience) health care professionals and
support staff in the respective disciplines. Clinicians providing
individual, group and family therapy meet CHAMPUS requirements as
qualified mental health providers and operate within the scope of their
licenses. The ultimate authority for planning, development,
implementation, and monitoring of all clinical activities is vested in a
psychiatrist or doctoral
[[Page 186]]
level clinical psychologist. The management of medical care is vested in
a physician.
(ii) The SUDRF shall establish and follow written plans to assure
adequate staff coverage during all hours of operation of the center,
including physician availability and other professional staff coverage
24 hours per day, seven days per week for an inpatient rehabilitation
center and during all hours of operation for a partial hospitalization
center.
(2) Staff qualifications. Within the scope of its programs and
services, the SUDRF has a sufficient number of professional,
administrative, and support staff to address the medical and clinical
needs of patients and to coordinate the services provided. SUDRFs that
employ individuals with master's or doctoral level degrees in a mental
health discipline who do not meet the licensure, certification and
experience requirements for a qualified mental health provider but are
actively working toward licensure or certification, may provide services
within the DRG, provided the individual works under the clinical
supervision of a fully qualified mental health provider employed by the
SUDRF.
(3) Patient rights.
(i) The SUDRF shall provide adequate protection for all patient
rights, safety, confidentiality, informed consent, grievances, and
personal dignity.
(ii) The SUDRF has a written policy regarding patient abuse and
neglect.
(iii) SUDRF marketing and advertising meets professional standards.
(4) Behavioral management. When a SUDRF uses a behavioral management
program, the center shall adhere to a comprehensive, written plan of
behavioral management, developed by the clinical director and the
medical or professional staff and approved by the governing body. It
shall be based on positive reinforcement methods and, except for
infrequent use of temporary physical holds or time outs, does not
include the use of restraint or seclusion. Only trained and clinically
privileged RNs or qualified mental health professionals may be
responsible for the implementation of seclusion and restraint in an
emergency situation.
(5) Admission process. The SUDRF shall maintain written policies and
procedures to ensure that, prior to an admission, a determination is
made, and approved pursuant to CHAMPUS preauthorization requirements,
that the admission is medically and/or psychologically necessary and the
program is appropriate to meet the patient's needs. Medical and/or
psychological necessity determinations shall be rendered by qualified
mental health professionals who meet CHAMPUS requirements for individual
professional providers and who are permitted by law and by the facility
to refer patients for admission.
(6) Assessment. The professional staff of the SUDRF shall provide a
complete, multidisciplinary assessment of each patient which includes,
but is not limited to, medical history, physical health, nursing needs,
alcohol and drug history, emotional and behavioral factors, age-
appropriate social circumstances, psychological condition, education
status, and skills. Unless otherwise specified, all required clinical
assessments are completed prior to development of the multidisciplinary
treatment plan.
(7) Clinical formulation. A qualified mental health care
professional of the SUDRF will complete a clinical formulation on all
patients. The clinical formulation will be reviewed and approved by the
responsible individual professional provider and will incorporate
significant findings from each of the multidisciplinary assessments. It
will provide the basis for development of an interdisciplinary treatment
plan.
(8) Treatment planning. A qualified health care professional with
admitting privileges shall be responsible for the development,
supervision, implementation, and assessment of a written,
individualized, and interdisciplinary plan of treatment, which shall be
completed within 10 days of admission to an inpatient rehabilitation
center or by the fifth day following admission to full day partial
hospitalization center, and by the seventh day of treatment for half day
partial hospitalization. The treatment plan shall include individual,
measurable, and observable goals for incremental progress towards the
treatment plan objectives and
[[Page 187]]
goals and discharge. A preliminary treatment plan is completed within 24
hours of admission and includes at least a physician's admission note
and orders. The master treatment plan is regularly reviewed for
effectiveness and revised when major changes occur in treatment.
(9) Discharge and transition planning. The SUDRF shall maintain a
transition planning process to address adequately the anticipated needs
of the patient prior to the time of discharge.
(10) Clinical documentation. Clinical records shall be maintained on
each patient to plan care and treatment and provide ongoing evaluation
of the patient's progress. All care is documented and each clinical
record contains at least the following: demographic data, consent forms,
pertinent legal documents, all treatment plans and patient assessments,
consultation and laboratory reports, physician orders, progress notes,
and a discharge summary. All documentation will adhere to applicable
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3).
An appropriately qualified records administrator or technician will
supervise and maintain the quality of the records. These requirements
are in addition to other records requirements of this part, and
provisions of the JCAHO Manual for Mental Health, Chemical Dependency,
and Mental Retardation/Developmental Disabilities Services.
(11) Progress notes. Timely and complete progress notes shall be
maintained to document the course of treatment for the patient and
family.
(12) Therapeutic services.
(i) Individual, group, and family psychotherapy and addiction
counseling services are provided to all patients, consistent with each
patient's treatment plan by qualified mental health providers.
(ii) A range of therapeutic activities, directed and staffed by
qualified personnel, are offered to help patients meet the goals of the
treatment plan.
(iii) Therapeutic educational services are provided or arranged that
are appropriate to the patient's educational and therapeutic needs.
(13) Ancillary services. A full range of ancillary services is
provided. Emergency services include policies and procedures for
handling emergencies with qualified personnel and written agreements
with each facility providing the service. Other ancillary services
include physical health, pharmacy and dietary services.
(C) Standards for physical plant and environment.
(1) Physical environment. The buildings and grounds of the SUDRF
shall be maintained so as to avoid health and safety hazards, be
supportive of the services provided to patients, and promote patient
comfort, dignity, privacy, personal hygiene, and personal safety.
(2) Physical plant safety. The SUDRF shall be maintained in a manner
that protects the lives and ensures the physical safety of patients,
staff, and visitors, including conformity with all applicable building,
fire, health, and safety codes.
(3) Disaster planning. The SUDRF shall maintain and rehearse written
plans for taking care of casualties and handling other consequences
arising from internal or external disasters.
(D) Standards for evaluation system.
(1) Quality assessment and improvement. The SUDRF develop and
implement a comprehensive quality assurance and quality improvement
program that monitors the quality, efficiency, appropriateness, and
effectiveness of the care, treatments, and services it provides for
patients and their families, utilizing clinical indicators of
effectiveness to contribute to an ongoing process of program
improvement. The clinical director is responsible for developing and
implementing quality assessment and improvement activities throughout
the facility.
(2) Utilization review. The SUDRF shall implement a utilization
review process, pursuant to a written plan approved by the professional
staff, the administration, and the governing body, that assesses the
appropriateness of admissions, continued stay, and timeliness of
discharge as part of an effort to provide quality patient care in a
cost-effective manner. Findings of the utilization review process are
used as a basis for revising the plan of operation, including a review
of staff qualifications and staff composition.
(3) Patient records review. The center shall implement a process,
including
[[Page 188]]
monthly reviews of a representative sample of patient records, to
determine the completeness and accuracy of the patient records and the
timeliness and pertinence of record entries, particularly with regard to
regular recording of progress/non-progress in treatment plan.
(4) Drug utilization review. An inpatient rehabilitation center and,
when applicable, a partial hospitalization center, shall implement a
comprehensive process for the monitoring and evaluating of the
prophylactic, therapeutic, and empiric use of drugs to assure that
medications are provided appropriately, safely, and effectively.
(5) Risk management. The SUDRF shall implement a comprehensive risk
management program, fully coordinated with other aspects of the quality
assurance and quality improvement program, to prevent and control risks
to patients and staff and costs associated with clinical aspects of
patient care and safety.
(6) Infection control. The SUDRF shall implement a comprehensive
system for the surveillance, prevention, control, and reporting of
infections acquired or brought into the facility.
(7) Safety. The SUDRF shall implement an effective program to assure
a safe environment for patients, staff, and visitors.
(8) Facility evaluation. The SUDRF annually evaluates accomplishment
of the goals and objectives of each clinical program and service of the
SUDRF and reports findings and recommendations to the governing body.
(E) Participation agreement requirements. In addition to other
requirements set forth in paragraph (b)(4)(xiv) of this section, in
order for the services of an inpatient rehabilitation center or partial
hospitalization center for the treatment of substance abuse disorders to
be authorized, the center shall have entered into a Participation
Agreement with OCHAMPUS. The period of a Participation Agreement shall
be specified in the agreement, and will generally be for not more than
five years. On October 1, 1995, the SUDRF shall not be considered to be
a CHAMPUS authorized provider and CHAMPUS payments shall not be made for
services provided by the SUDRF until the date the participation
agreement is signed by the Director, OCHAMPUS. In addition to review of
the SUDRFS application and supporting documentation, an on-site visit by
OCHAMPUS representatives may be part of the authorization process. In
addition, such a Participation Agreement may not be signed until an
SUDRF has been licensed and operational for at least six months. The
Participation Agreement shall include at least the following
requirements:
(1) Render applicable services to eligible CHAMPUS beneficiaries in
need of such services, in accordance with the participation agreement
and CHAMPUS regulation;
(2) Accept payment for its services based upon the methodology
provided in Sec. 199.14, or such other method as determined by the
Director, OCHAMPUS;
(3) Accept the CHAMPUS-determined rate as payment in full and
collect from the CHAMPUS beneficiary or the family of the CHAMPUS
beneficiary only those amounts that represent the beneficiary's
liability, as defined in Sec. 199.4, and charges for services and
supplies that are not a benefit of CHAMPUS;
(4) Make all reasonable efforts acceptable to the Director,
OCHAMPUS, to collect those amounts which represent the beneficiary's
liability, as defined in Sec. 199.4;
(5) Comply with the provisions of Sec. 199.8, and submit claims
first to all health insurance coverage to which the beneficiary is
entitled that is primary to CHAMPUS;
(6) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS,
certified to by an independent accounting firm or other agency as
authorized by the Director, OCHAMPUS;
(7) Certify that:
(i) It is and will remain in compliance with the provisions of
paragraph (b)(4)(xiv) of the section establishing standards for
substance use disorder rehabilitation facilities;
(ii) It has conducted a self assessment of the SUDRF'S compliance
with the CHAMPUS Standards for Substance Use Disorder Rehabilitation
Facilities, as issued by the Director, OCHAMPUS, and notified the
Director, OCHAMPUS
[[Page 189]]
of any matter regarding which the facility is not in compliance with
such standards; and
(iii) It will maintain compliance with the CHAMPUS Standards for
Substance Use Disorder Rehabilitation Facilities, as issued by the
Director, OCHAMPUS, except for any such standards regarding which the
facility notifies the Director, OCHAMPUS that it is not in compliance.
(8) Grant the Director, OCHAMPUS, or designee, the right to conduct
quality assurance audits or accounting audits with full access to
patients and records (including records relating to patients who are not
CHAMPUS beneficiaries) to determine the quality and cost effectiveness
of care rendered. The audits may be conducted on a scheduled or
unscheduled (unannounced) basis. This right to audit/review included,
but is not limited to:
(i) Examination of fiscal and all other records of the center which
would confirm compliance with the participation agreement and
designation as an authorized CHAMPUS provider;
(ii) Conducting such audits of center records including clinical,
financial, and census records, as may be necessary to determine the
nature of the services being provided, and the basis for charges and
claims against the United States for services provided CHAMPUS
beneficiaries;
(iii) Examining reports of evaluations and inspection conducted by
federal, state and local government, and private agencies and
organizations;
(iv) Conducting on-site inspections of the facilities of the SUDRF
and interviewing employees, members of the staff, contractors, board
members, volunteers, and patients, as required.
(v) Audits conducted by the United States General Accounting Office.
(F) Other requirements applicable to substance use disorder
rehabilitation facilities.
(1) Even though a SUDRF may qualify as a CHAMPUS-authorized provider
and may have entered into a participation agreement with CHAMPUS,
payment by CHAMPUS for particular services provided is contingent upon
the SUDRF also meeting all conditions set forth in Sec. 199.4.
(2) The center shall provide inpatient services to CHAMPUS
beneficiaries in the same manner it provides services to all other
patients. The center may not discriminate against CHAMPUS beneficiaries
in any manner, including admission practices, placement in special or
separate wings or rooms, or provisions of special or limited treatment.
(3) The substance use disorder facility shall assure that all
certifications and information provided to the Director, OCHAMPUS
incident to the process of obtaining and retaining authorized provider
status is accurate and that it has no material errors or omissions. In
the case of any misrepresentations, whether by inaccurate information
being provided or material facts withheld, authorized provider status
will be denied or terminated, and the facility will be ineligible for
consideration for authorized provider status for a two year period.
(c) Individual professional providers of care--(1) General--(i)
Purpose. This individual professional provider class is established to
accommodate individuals who are recognized by 10 U.S.C. 1079(a) as
authorized to assess or diagnose illness, injury, or bodily malfunction
as a prerequisite for CHAMPUS cost-share of otherwise allowable related
preventive or treatment services or supplies, and to accommodate such
other qualified individuals who the Director, OCHAMPUS, or designee, may
authorize to render otherwise allowable services essential to the
efficient implementation of a plan-of-care established and managed by a
10 U.S.C. 1079(a) authorized professional.
(ii) Professional corporation affiliation or association membership
permitted. Paragraph (c) of this section applies to those individual
health care professionals who have formed a professional corporation or
association pursuant to applicable state laws. Such a professional
corporation or association may file claims on behalf of a CHAMPUS-
authorized individual professional provider and be the payee for any
payment resulting from such claims when the CHAMPUS-authorized
individual certifies to the Director, OCHAMPUS, or designee, in writing
that the professional corporation or association is
[[Page 190]]
acting on the authorized individual's behalf.
(iii) Scope of practice limitation. For CHAMPUS cost-sharing to be
authorized, otherwise allowable services provided by a CHAMPUS-
authorized individual professional provider shall be within the scope of
the individual's license as regulated by the applicable state practice
act of the state where the individual rendered the service to the
CHAMPUS beneficiary or shall be within the scope of the test which was
the basis for the individual's qualifying certification.
(iv) Employee status exclusion. An individual employed directly, or
indirectly by contract, by an individual or entity to render
professional services otherwise allowable by this part is excluded from
provider status as established by this paragraph (c) for the duration of
each employment.
(v) Training status exclusion. Individual health care professionals
who are allowed to render health care services only under direct and
ongoing supervision as training to be credited towards earning a
clinical academic degree or other clinical credential required for the
individual to practice independently are excluded from provider status
as established by this paragraph (c) for the duration of such training.
(2) Conditions of authorization--(i) Professional license
requirement. The individual must be currently licensed to render
professional health care services in each state in which the individual
renders services to CHAMPUS beneficiaries. Such license is required when
a specific state provides, but does not require, license for a specific
category of individual professional provider. The license must be at
full clinical practice level to meet this requirement. A temporary
license at the full clinical practice level is acceptable.
(ii) Professional certification requirement. When a state does not
license a specific category of individual professional, certification by
a Qualified Accreditation Organization, as defined in Sec. 199.2, is
required. Certification must be at full clinical practice level. A
temporary certification at the full clinical practice level is
acceptable.
(iii) Education, training and experience requirement. The Director,
OCHAMPUS, or designee, may establish for each category or type of
provider allowed by this paragraph (c) specific education, training, and
experience requirements as necessary to promote the delivery of services
by fully qualified individuals.
(iv) Physician referral and supervision. When physician referral and
supervision is a prerequisite for CHAMPUS cost-sharing of the services
of a provider authorized under this paragraph (c), such referral and
supervision means that the physicians must actually see the patient to
evaluate and diagnose the condition to be treated prior to referring the
beneficiary to another provider and that the referring physician
provides ongoing oversight of the course of referral related treatment
throughout the period during which the beneficiary is being treated in
response to the referral. Written contemporaneous documentation of the
referring physician's basis for referral and ongoing communication
between the referring and treating provider regarding the oversight of
the treatment rendered as a result of the referral must meet all
requirements for medical records established by this part. Referring
physician supervision does not require physical location on the premises
of the treating provider or at the site of treatment.
(3) Types of providers. Subject to the standards of participation
provisions of this part, the following individual professional providers
of medical care are authorized to provide services to CHAMPUS
beneficiaries:
(i) Physicians. (A) Doctors of Medicine (M.D.).
(B) Doctors of Osteopathy (D.O.).
(ii) Dentists. Except for covered oral surgery as specified in Sec.
199.4(e) of this part, all otherwise covered services rendered by
dentists require preauthorization.
(A) Doctors of Dental Medicine (D.M.D.).
(B) Doctors of Dental Surgery (D.D.S.).
(iii) Other allied health professionals. The services of the
following individual professional providers of care are
[[Page 191]]
coverable on a fee-for-service basis provided such services are
otherwise authorized in this or other sections of this part.
(A) Clinical psychologist. For purposes of CHAMPUS, a clinical
psychologist is an individual who is licensed or certified by the state
for the independent practice of psychology and:
(1) Possesses a doctoral degree in psychology from a regionally
accredited university; and
(2) Has has 2 years of supervised clinical experience in
psychological health services of which at least 1 year is post-doctoral
and 1 year (may be the post-doctoral year) is in an organized
psychological health service training program; or
(3) As an alternative to paragraphs (c)(3)(iii)(A)(1) and (2) of
this section is listed in the National Register of Health Service
Providers in Psychology.
(B) Doctors of Optometry.
(C) Doctors of Podiatry or Surgical Chiropody.
(D) Certified nurse midwives.
(1) A certified nurse midwife may provide covered care independent
of physician referral and supervision, provided the nurse midwife is:
(i) Licensed, when required, by the local licensing agency for the
jurisdiction in which the care is provided; and
(ii) Certified by the American College of Nurse Midwives. To receive
certification, a candidate must be a registered nurse who has completed
successfully an educational program approved by the American College of
Nurse Midwives, and passed the American College of Nurse Midwives
National Certification Examination.
(2) The services of a registered nurse who is not a certified nurse
midwife may be authorized only when the patient has been referred for
care by a licensed physician and a licensed physican provides continuing
supervision of the course of care. A lay midwife who is neither a
certified nurse midwife nor a registered nurse is not a CHAMPUS-
authorized provider, regardless of whether the services rendered may
otherwise be covered.
(E) Certified nurse practitioner. Within the scope of applicable
licensure or certification requirements, a certified nurse practitioner
may provide covered care independent of physician referral and
supervision, provided the nurse practitioner is:
(1) A licensed, registered nurse; and
(2) Specifically licensed or certified as a nurse practitioner by
the state in which the care was provided, if the state offers such
specific licensure or certification; or
(3) Certified as a nurse practitioner (certified nurse) by a
professional organization offering certification in the speciality of
practice, if the state does not offer specific licensure or
certification for nurse practitioners.
(F) Certified Clinical Social Worker. A clinical social worker may
provide covered services independent of physician referral and
supervision, provided the clinical social worker:
(1) Is licensed or certified as a clinical social worker by the
jurisdiction where practicing; or, if the jurisdiction does not provide
for licensure or certification of clinical social workers, is certified
by a national professional organization offering certification of
clinical social workers; and
(2) Has at least a master's degree in social work from a graduate
school of social work accredited by the Council on Social Work
Education; and
(3) Has had a minimum of 2 years or 3,000 hours of post-master's
degree supervised clinical social work practice under the supervision of
a master's level social worker in an appropriate clinical setting, as
determined by the Director, OCHAMPUS, or a designee.
Note: Patients' organic medical problems must receive appropriate
concurrent management by a physician.
(G) Certified psychiatric nurse specialist. A certified psychiatric
nurse specialist may provide covered care independent of physician
referral and supervision. For purposes of CHAMPUS, a certified
psychiatric nurse specialist is an individual who:
(1) Is a licensed, registered nurse; and
(2) Has at least a master's degree in nursing from a regionally
accredited institution with a specialization in psychiatric and mental
health nursing; and
(3) Has had at least 2 years of post-master's degree practice in the
field of psychiatric and mental health nursing,
[[Page 192]]
including an average of 8 hours of direct patient contact per week; or
(4) Is listed in a CHAMPUS-recognized, professionally sanctioned
listing of clinical specialists in psychiatric and mental health
nursing.
(H) Certified physician assistant. A physician assistant may provide
care under general supervision of a physician (see Sec.
199.14(g)(1)(iii) of this part for limitations on reimbursement). For
purposes of CHAMPUS, a physician assistant must meet the applicable
state requirements governing the qualifications of physician assistants
and at least one of the following conditions:
(1) Is currently certified by the National Commission on
Certification of Physician Assistants to assist primary care physicians,
or
(2) Has satisfactorily completed a program for preparing physician
assistants that:
(i) Was at least 1 academic year in length;
(ii) Consisted of supervised clinical practice and at least 4 months
(in the aggregate) of classroom instruction directed toward preparing
students to deliver health care; and
(iii) Was accredited by the American Medical Association's Committee
on Allied Health Education and Accreditation; or
(3) Has satisfactorily completed a formal educational program for
preparing program physician assistants that does not meet the
requirement of paragraph (c)(3)(iii)(H)(2) of this section and had been
assisting primary care physicians for a minimum of 12 months during the
18-month period immediately preceding January 1, 1987.
(I) Other individual paramedical providers. The services of the
following individual professional providers of care to be considered for
benefits on a fee-for-service basis may be provided only if the
beneficiary is referred by a physician for the treatment of a medically-
diagnosed condition and a physician must also provide continuing and
ongoing oversight and supervision of the program or episode of treatment
provided by these individual para-medical providers.
(1) Licensed registered nurses.
(2) Licensed registered physical therapists and occupational
therapists.
(3) Licensed registered physical therapists.
(4) Audiologists.
(5) Speech therapists (speech pathologists).
(iv) Extramedical individual providers. Extramedical individual
providers are those who do counseling or nonmedical therapy and whose
training and therapeutic concepts are outside the medical field. The
services of extramedical individual professionals are coverable
following the CHAMPUS determined allowable charge methodology provided
such services are otherwise authorized in this or other sections of the
regulation.
(A) Certified marriage and family therapists. For the purposes of
CHAMPUS, a certified marriage and family therapist is an individual who
meets the following requirements:
(1) Recognized graduate professional education with the minimum of
an earned master's degree from a regionally accredited educational
institution in an appropriate behavioral science field, mental health
discipline; and
(2) The following experience:
(i) Either 200 hours of approved supervision in the practice of
marriage and family counseling, ordinarily to be completed in a 2- to 3-
year period, of which at least 100 hours must be in individual
supervision. This supervision will occur preferably with more than one
supervisor and should include a continuous process of supervision with
at least three cases; and
(ii) 1,000 hours of clinical experience in the practice of marriage
and family counseling under approved supervision, involving at least 50
different cases; or
(iii) 150 hours of approved supervision in the practice of
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of
which at least 50 hours must be individual supervision; plus at least 50
hours of approved individual supervision in the practice of marriage and
family counseling, ordinarily to be completed within a period of not
less than 1 nor more than 2 years; and
(iv) 750 hours of clinical experience in the practice of
psychotherapy under approved supervision involving at least 30 cases;
plus at least 250 hours of clinical practice in marriage and family
[[Page 193]]
counseling under approved supervision, involving at least 20 cases; and
(3) Is licensed or certified to practice as a marriage and family
therapist by the jurisdiction where practicing (see paragraph
(c)(3)(iv)(D) of this section for more specific information regarding
licensure); and
(4) Agrees that a patients' organic medical problems must receive
appropriate concurrent management by a physician.
(5) Agrees to accept the CHAMPUS determined allowable charge as
payment in full, except for applicable deductibles and cost-shares, and
hold CHAMPUS beneficiaries harmless for noncovered care (i.e., may not
bill a beneficiary for noncovered care, and may not balance bill a
beneficiary for amounts above the allowable charge). The certified
marriage and family therapist must enter into a participation agreement
with the Office of CHAMPUS within which the certified marriage and
family therapist agrees to all provisions specified above.
(6) As of the effective date of termination, the certified marriage
and family therapist will no longer be recognized as an authorized
provider under CHAMPUS. Subsequent to termination, the certified
marriage and family therapist may only be reinstated as an authorized
CHAMPUS extramedical provider by entering into a new participation
agreement as a certified marriage and family therapist.
(B) Pastoral counselors. For the purposes of CHAMPUS, a pastoral
counselor is an individual who meets the following requirements:
(1) Recognized graduate professional education with the minimum of
an earned master's degree from a regionally accredited educational
institution in an appropriate behavioral science field, mental health
discipline; and
(2) The following experience:
(i) Either 200 hours of approved supervision in the practice of
pastoral counseling, ordinarily to be completed in a 2- to 3-year
period, of which at least 100 hours must be in individual supervision.
This supervision will occur preferably with more than one supervisor and
should include a continuous process of supervision with at least three
cases; and
(ii) 1,000 hours of clinical experience in the practice of pastoral
counseling under approved supervision, involving at least 50 different
cases; or
(iii) 150 hours of approved supervision in the practice of
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of
which at least 50 hours must be individual supervision; plus at least 50
hours of approved individual supervision in the practice of pastoral
counseling, ordinarily to be completed within a period of not less than
1 nor more than 2 years; and
(iv) 750 hours of clinical experience in the practice of
psychotherapy under approved supervision involving at least 30 cases;
plus at least 250 hours of clinical practice in pastoral counseling
under approved supervision, involving at least 20 cases; and
(3) Is licensed or certified to practice as a pastoral counselor by
the jurisdiction where practicing (see paragraph (c)(3)(iv)(D) of this
section for more specific information regarding licensure); and
(4) The services of a pastoral counselor meeting the above
requirements are coverable following the CHAMPUS determined allowable
charge methdology, under the following specified conditions:
(i) The CHAMPUS beneficiary must be referred for therapy by a
physician; and
(ii) A physician is providing ongoing oversight and supervision of
the therapy being provided; and
(iii) The pastoral counselor must certify on each claim for
reimbursement that a written communication has been made or will be made
to the referring physician of the results of the treatment. Such
communication will be made at the end of the treatment, or more
frequently, as required by the referring physician (refer to Sec.
199.7).
(5) Because of the similarity of the requirements for licensure,
certification, experience, and education, a pastoral counselor may elect
to be authorized under CHAMPUS as a certified marriage and family
therapist, and as such, be subject to all previously defined criteria
for the certified marriage and family therapist category, to include
acceptance of the CHAMPUS determined allowable charge as payment
[[Page 194]]
in full, except for applicable deductibles and cost-shares (i.e.,
balance billing of a beneficiary above the allowable charge is
prohibited; may not bill beneficiary for noncovered care). The pastoral
counselor must also agree to enter into the same participation agreement
as a certified marriage and family therapist with the Office of CHAMPUS
within which the pastoral counselor agrees to all provisions including
licensure, national association membership and conditions upon
termination, outlined above for certified marriage and family therapist.
Note: No dual status will be recognized by the Office of CHAMPUS.
Pastoral counselors must elect to become one of the categories of
extramedical CHAMPUS provides specified above. Once authorized as either
a pastoral counselor, or a certified marriage and family therapist,
claims review and reimbursement will be in accordance with the criteria
established for the elected provider category.
(C) Mental health counselor. For the purposes of CHAMPUS, a mental
health counselor is an individual who meets the following requirements:
(1) Minimum of a master's degree in mental health counseling or
allied mental health field from a regionally accredited institution; and
(2) Two years of post-masters experience which includes 3000 hours
of clinical work and 100 hours of face-to-face supervision; and
(3) Is licensed or certified to practice as a mental health
counselor by the jurisdiction where practicing (see paragraph
(c)(3)(iv)(D) of this section for more specific information); and
(4) May only be reimbursed when:
(i) The CHAMPUS beneficiary is referred for therapy by a physician;
and
(ii) A physician is providing ongoing oversight and supervision of
the therapy being provided; and
(iii) The mental health counselor certifies on each claim for
reimbursement that a written communication has been made or will be made
to the referring physician of the results of the treatment. Such
communication will be made at the end of the treatment, or more
frequently, as required by the referring physician (refer to Sec.
199.7).
(D) The following additional information applies to each of the
above categories of extramedical individual providers:
(1) These providers must also be licensed or certified to practice
as a certified marriage and family therapist, pastoral counselor or
mental health counselor by the jurisdiction where practicing. In
jurisdictions that do not provide for licensure or certification, the
provider must be certified by or eligible for full clinical membership
in the appropriate national professional association that sets standards
for the specific profession.
(2) Grace period for therapists or counselors in states where
licensure/certification is optional. CHAMPUS is providing a grace period
for those therapists or counselors who did not obtain optional
licensure/certification in their jurisdiction, not realizing it was a
CHAMPUS requirement for authorization. The exemption by state law for
pastoral counselors may have misled this group into thinking licensure
was not required. The same situation may have occurred with the other
therapist or counselor categories where licensure was either not
mandated by the state or was provided under a more general category such
as ``professional counselors.'' This grace period pertains only to the
licensure/certification requirement, applies only to therapists or
counselors who are already approved as of October 29, 1990, and only in
those areas where the licensure/certification is optional. Any therapist
or counselor who is not licensed/certified in the state in which he/she
is practicing by August 1, 1991, will be terminated under the provisions
of Sec. 199.9. This grace period does not change any of the other
existing requirements which remain in effect. During this grace period,
membership or proof of eligibility for full clinical membership in a
recognized professional association is required for those therapists or
counselors who are not licensed or certified by the state. The following
organizations are recognized for therapists or counselors at the level
indicated: Full clinical member of the American Association of Marriage
and Family Therapy; membership at the fellow or diplomate level of the
American Association of Pastoral Counselors; and membership in the
National Academy of Certified Clinical Mental Health Counselors.
Acceptable proof of eligibility
[[Page 195]]
for membership is a letter from the appropriate certifying organization.
This opportunity for delayed certification/licensure is limited to the
counselor or therapist category only as the language in all of the other
provider categories has been consistent and unmodified from the time
each of the other provider categories were added. The grace period does
not apply in those states where licensure is mandatory.
(E) Christian Science practitioners and Christian Science nurses.
CHAMPUS cost-shares the services of Christian Science practitioners and
nurses. In order to bill as such, practitioners or nurses must be listed
or be eligible for listing in the Christian Science Journal \1\ at the
time the service is provided.
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\1\ Copies of this journal can be obtained through the Christian
Science Publishing Company, 1 Norway Street, Boston, MA 02115-3122 or
the Christian Science Publishing Society, P.O. Box 11369, Des Moines, IA
50340.
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(d) Other providers. Certain medical supplies and services of an
ancillary or supplemental nature are coverable by CHAMPUS, subject to
certain controls. This category of provider includes the following:
(1) Independent laboratory. Laboratory services of independent
laboratories may be cost-shared if the laboratory is approved for
participation under Medicare and certified by the Medicare Bureau,
Health Care Financing Administration.
(2) Suppliers of portable x-ray services. Such suppliers must meet
the conditions of coverage of the Medicare program, set forth in the
Medicare regulations, or the Medicaid program in that state in which the
covered service is provided.
(3) Pharmacies. Pharmacies must meet the applicable requirements of
state law in the state in which the pharmacy is located.
(4) Ambulance companies. Such companies must meet the requirements
of state and local laws in the jurisdiction in which the ambulance firm
is licensed.
(5) Medical equipment firms, medical supply firms. As determined by
the Director, OCHAMPUS, or a designee.
(6) Mammography suppliers. Mammography services may be cost-shared
only if the supplier is certified by Medicare for participation as a
mammography supplier, or is certified by the American College of
Radiology as having met its mammography supplier standards.
(e) Program for Persons with Disabilities Providers.--(1) General.
(i) Services and items cost-shared through Sec. 199.5 must be rendered
by a CHAMPUS-authorized provider.
(ii) A Program for the Handicapped (PFTH) provider with CHAMPUS-
authorized status on the effective date for the Program for Persons with
Disabilities (PFPWD) shall be deemed to be a CHAMPUS-authorized PFPWD
provider until all outstanding PFTH benefit authorizations for services
or items being rendered by the provider expire.
(2) PFPWD provider categories.--(i) PFPWD inpatient care provider. A
provider of residential institutional care which is otherwise a PFPWD
benefit shall be:
(A) A not-for-profit entity or a public facility, as defined in
Sec. 199.2; and
(B) Located within a State, as defined in Sec. 199.2; and
(C) Be certified as eligible for Medicaid payment in accordance with
a State plan for medical assistance under Title XIX of the Social
Security Act (Medicaid) as a Medicaid Nursing Facility, or Intermediate
Care Facility for the Mentally Retarded, or be a CHAMPUS-authorized
Institutional Provider as defined in paragraph (b) of this section, or
be approved by a State educational agency as a training institution.
(ii) PFPWD outpatient care provider. A provider of PFPWD outpatient,
ambulatory, or in-home services shall be:
(A) A CHAMPUS-authorized provider of services as defined in this
section; or
(B) An individual, corporation, foundation, or public entity that
predominantly renders services of a type uniquely allowable as a PFPWD
benefit and not otherwise allowable as a benefit of Sec. 199.4, that
meets all applicable licensing or other regulatory requirements that are
extant in the state, county, municipality, or other political
[[Page 196]]
jurisdiction in which the PFPWD service is rendered.
(iii) PFPWD vendor. A provider of an allowable PFPWD item, supply,
equipment, orthotic, or device shall be deemed to be a CHAMPUS-
authorized vendor for the provision of the specific item, supply,
equipment, orthotic, or device when the vendor supplies such information
as the Director, OCHAMPUS, or designee, determines necessary to
adjudicate a specific claim.
(3) PFPWD provider exclusion or suspension. A provider of PFPWD
services or items may be excluded or suspended for a pattern of
discrimination on the basis of disability. Such exclusion or suspension
shall be accomplished according to the provisions of Sec. 199.9.
(f) Corporate services providers--(1) General. (i) This corporate
services provider class is established to accommodate individuals who
would meet the criteria for status as a CHAMPUS authorized individual
professional provider as established by paragraph (c) of this section
but for the fact that they are employed directly or contractually by a
corporation or foundation that provides principally professional
services which are within the scope of the CHAMPUS benefit.
(ii) Payment for otherwise allowable services may be made to a
CHAMPUS-authorized corporate services provider subject to the applicable
requirements, exclusions and limitations of this part.
(iii) The Director, OCHAMPUS, or designee, may create discrete types
within any allowable category of provider established by this paragraph
(f) to improve the efficiency of CHAMPUS management.
(iv) The Director, OCHAMPUS, or designee, may require, as a
condition of authorization, that a specific category or type of provider
established by this paragraph (f):
(A) Maintain certain accreditation in addition to or in lieu of the
requirement of paragraph (f)(2)(v) of this section;
(B) Cooperate fully with a designated utilization and clinical
quality management organization which has a contract with the Department
of Defense for the geographic area in which the provider does business;
(C) Render services for which direct or indirect payment is expected
to be made by CHAMPUS only after obtaining CHAMPUS written
authorization; and
(D) Maintain Medicare approval for payment when the Director,
OCHAMPUS, or designee, determines that a category, or type, of provider
established by this paragraph (f) is substantially comparable to a
provider or supplier for which Medicare has regulatory conditions of
participation or conditions of coverage.
(v) Otherwise allowable services may be rendered at the authorized
corporate services provider's place of business, or in the beneficiary's
home under such circumstances as the Director, OCHAMPUS, or designee,
determines to be necessary for the efficient delivery of such in-home
services.
(vi) The Director, OCHAMPUS, or designee, may limit the term of a
participation agreement for any category or type of provider established
by this paragraph (f).
(vii) Corporate services providers shall be assigned to only one of
the following allowable categories based upon the predominate type of
procedure rendered by the organization;
(A) Medical treatment procedures;
(B) Surgical treatment procedures;
(C) Maternity management procedures;
(D) Rehabilitation and/or habilitation procedures; or
(E) Diagnostic technical procedures.
(viii) The Director, OCHAMPUS, or designee, shall determine the
appropriate procedural category of a qualified organization and may
change the category based upon the provider's CHAMPUS claim
characteristics. The category determination of the Director, OCHAMPUS,
designee, is conclusive and may not be appealed.
(2) Conditions of authorization. An applicant must meet the
following conditions to be eligible for authorization as a CHAMPUS
corporate services provider:
(i) Be a corporation or a foundation, but not a professional
corporation or professional association; and
(ii) Be institution-affiliated or freestanding as defined in Sec.
199.2; and
(iii) Provide:
[[Page 197]]
(A) Services and related supplies of a type rendered by CHAMPUS
individual professional providers or diagnostic technical services and
related supplies of a type which requires direct patient contact and a
technologist who is licensed by the state in which the procedure is
rendered or who is certified by a Qualified Accreditation Organization
as defined in Sec. 199.2; and
(B) A level of care which does not necessitate that the beneficiary
be provided with on-site sleeping accommodations and food in conjunction
with the delivery of services; and
(iv) Complies with all applicable organizational and individual
licensing or certification requirements that are extant in the state,
county, municipality, or other political jurisdiction in which the
provider renders services; and
(v) Be approved for Medicare payment when determined to be
substantially comparable under the provisions of paragraph (f)(1)(iv)(D)
of this section or, when Medicare approved status is not required, be
accredited by a qualified accreditation organization, as defined in
Sec. 199.2; and
(vi) Has entered into a participation agreement approved by the
Director, OCHAMPUS, or designee, which at least complies with the
minimum participation agreement requirements of this section.
(3) Transfer of participation agreement. In order to provide
continuity of care for beneficiaries when there is a change of provider
ownership, the provider agreement is automatically assigned to the new
owner, subject to all the terms and conditions under which the original
agreement was made.
(i) The merger of the provider corporation or foundation into
another corporation or foundation, or the consolidation of two or more
corporations or foundations resulting in the creation of a new
corporation or foundation, constitutes a change of ownership.
(ii) Transfer of corporate stock or the merger of another
corporation or foundation into the provider corporation or foundation
does not constitute change of ownership.
(iii) The surviving corporation or foundation shall notify the
Director, OCHAMPUS, or designee, in writing of the change of ownership
promptly after the effective date of the transfer or change in
ownership.
(4) Pricing and payment methodology: The pricing and payment of
procedures rendered by a provider authorized under this paragraph (f)
shall be limited to those methods for pricing and payment allowed by
this part which the Director, OCHAMPUS, or designee, determines
contribute to the efficient management of CHAMPUS.
(5) Termination of participation agreement. A provider may terminate
a participation agreement upon 45 days written notice to the Director,
OCHAMPUS, or designee, and to the public.
[51 FR 24008, July 1, 1986]
Editorial Note: For Federal Register citations affecting Sec.
199.6, see the List of Sections Affected, which appears in the Finding
Aids section of the printed volume and on GPO Access.
Effective Date Note: At 67 FR 40603, June 13, 2002, Sec. 199.6 was
amended by revising paragraphs (a)(8)(i)(A), (a)(8)(i)(B), (a)(11)(i),
and (d)(5), and adding paragraphs (a)(8)(iii), (b)(4)(vi)(K), and
(b)(4)(xv), effective Aug. 12, 2002. For the convenience of the user,
the revised and added text is set forth as follows:
Sec. 199.6 Authorized providers.
(a) * * *
(8) * * *
(i) * * *
(A) An institutional provider in Sec. 199.6(b), in order to be an
authorized provider under TRICARE, must be a participating provider for
all claims.
(B) A SNR or a HHA, in order to be an authorized provider under
TRICARE, must enter into a participation agreement with TRICARE for all
claims.
* * * * *
(iii) Claim-by-claim participation. Individual providers that are
not participating providers pursuant to paragraph (a)(8)(ii) of this
section may elect to participate on a claim-by-claim basis. They may do
so by signing the appropriate space on the claims form and submitting it
to the appropriate TRICARE contractor on behalf of the beneficiary.
* * * * *
(11) * * *
(i) In general. Individual providers including providers salaried or
under contract by an institutional provider and other providers
[[Page 198]]
who are not participating providers may not balance bill a beneficiary
an amount that exceeds the applicable balance billing limit. The balance
billing limit shall be the same percentage as the Medicare limiting
charge percentage for nonparticipating practitioners and suppliers.
* * * * *
(b) * * *
(4) * * *
(vi) * * *
(K) Is an authorized provider under the Medicare program, and meets
the requirements of Title 18 of the social Security Act, sections
1819(a), (b), (c), and (d) (42 U.S.C. 1395i-3(a)-(d)).
* * * * *
(xv) Home health agencies (HHAs). HHAs must be Medicare approved and
meet all Medicare conditions of participation under sections 1861(o) and
1891 of the Social Security Act (42 U.S.C. 1395x(o) and 1395bbb) and 42
CFR part 484 in relation to TRICARE beneficiaries in order to receive
payment under the TRICARE program. An HHA may be found to be out of
compliance with a particular Medicare condition of participation and
still participate in the TRICARE program as long as the HHA is allowed
continued participation in Medicare while the condition of noncompliance
is being corrected. An HHA is a public or private organization, or a
subdivision of such an agency or organization, that meets the following
requirements:
(A) Engaged in providing skilled nursing services and other
therapeutic services, such as physical therapy, speech-language
pathology services, or occupational therapy, medical services, and home
health aide services.
(1) Makes available part-time or intermittent skilled nursing
services and at least one other therapeutic service on a visiting basis
in place of residence used as a patient's home.
(2) Furnishes at least one of the qualifying services directly
through agency employees, but may furnish the second qualifying service
and additional services under arrangement with another HHA or
organization.
(B) Policies established by a professional group associated with the
agency or organization (including at least one physician and one
registered nurse) to govern the services and provides for supervision of
such services by a physician or a registered nurse.
(C) Maintains clinical records for all patients.
(D) Licensed in accordance with State and local law or is approved
by the State or local licensing agency as meeting the licensing
standards, where applicable.
(E) Enters into an agreement with TRICARE in order to participate
and to be eligible for payment under the program. In this agreement the
HHA and TRICARE agree that the HHA will:
(1) Not charge the beneficiary or any other person for items or
services for which the beneficiary is entitled to have payment under the
TRICARE HHA prospective payment system.
(2) Be allowed to charge the beneficiary for items or services
requested by the beneficiary in addition to those that are covered under
the TRICARE HHA prospective payment system.
(F) Abide by the following consolidated billing requirements:
(1) The HHA must submit all TRICARE claims for all services,
excluding durable medical equipment (DME), while the beneficiary is
under the home health plan without regard to whether or not the item or
service was furnished by the HHA, by others under arrangement with the
HHA, or under any other contracting or consulting arrangement.
(2) Separate payment will be made for DME items and services
provided under the home health benefit which are under the DME fee
schedule. DME is excluded from the consolidated billing requirements.
(3) Home health services included in consolidated billing are:
(i) Part-time or intermittent skilled nursing;
(ii) Part-time or intermittent home health aide services;
(iii) Physical therapy, occupational therapy and speech-language
pathology;
(iv) Medical social services;
(v) Routine and non-routine medical supplies;
(vi) A covered osteoporosis drug (not paid under PPS rate) but
excluding other drugs and biologicals;
(vii) Medical services provided by an intern or resident-in-training
of a hospital, under an approved teaching program of the hospital in the
case of an HHA that is affiliated or under common control of a hospital;
(viii) Services at hospitals, SNFs or rehabilitation centers when
they involve equipment too cumbersome to bring home.
(G) Meet such other requirements as the Secretary of Health and
Human Services and/or Secretary of Defense may find necessary in the
interest of the health and safety of the individuals who are provided
care and services by such agency or organization.
* * * * *
(d) * * *
(5) Medical equipment firms, medical supply firms, and Durable
Medical Equipment, Prosthetic, Orthotic, Supplies providers/suppliers.
[[Page 199]]
Any firm, supplier, or provider that is an authorized provider under
Medicare or is otherwise designated an authorized provider by the
Director, TRICARE Management Activity.
* * * * *
Effective Date Note: At 67 FR 42721, June 25, 2002, Sec. 199.6 was
amended by revising paragraphs (b)(4)(ii) and (b)(4)(iii), effective
July 25, 2002. For the convenience of the user the revised text follows:
Sec. 199.6 Authorized providers.
* * * * *
(b) * * *
(4) * * *
(ii) Organ transplant centers. To obtain TRICARE approval as an
organ transplant center, the center must be a Medicare approved
transplant center or meet the criteria as established by the Executive
Director, TMA, or a designee.
(iii) Organ transplant consortia. TRICARE shall approve individual
pediatric organ transplant centers that meet the criteria established by
the Executive Director, TMA, or a designee.
* * * * *
Sec. 199.7 Claims submission, review, and payment.
(a) General. The Director, OCHAMPUS, or a designee, is responsible
for ensuring that benefits under CHAMPUS are paid only to the extent
described in this part. Before benefits can be paid, an appropriate
claim must be submitted that includes sufficient information as to
beneficiary identification, the medical services and supplies provided,
and double coverage information, to permit proper, accurate, and timely
adjudication of the claim by the CHAMPUS contractor or OCHAMPUS.
Providers must be able to document that the care or service shown on the
claim was rendered. This section sets forth minimum medical record
requirements for verification of services. Subject to such definitions,
conditions, limitations, exclusions, and requirements as may be set
forth in this part, the following are the CHAMPUS claim filing
requirements:
(1) CHAMPUS identification card required. A patient shall present
his or her applicable CHAMPUS identification card (that is, Uniformed
Services identification card) to the authorized provider of care that
identifies the patient as an eligible CHAMPUS beneficiary (refer to
Sec. 199.3 of this part).
(2) Claim required. No benefit may be extended under the Basic
Program or Program for Persons with Disabilities (PFPWD) without the
submission of a complete and properly executed appropriate claim form.
(3) Responsibility for perfecting claim. It is the responsibility of
the CHAMPUS beneficiary or sponsor or the authorized provider acting on
behalf of the CHAMPUS beneficiary to perfect a claim for submission to
the appropriate CHAMPUS fiscal intermediary. Neither a CHAMPUS fiscal
intermediary nor OCHAMPUS is authorized to prepare a claim on behalf of
a CHAMPUS beneficiary.
(4) Obtaining appropriate claim form. CHAMPUS provides specific
CHAMPUS forms appropriate for making a claim for benefits for various
types of medical services and supplies (such as hospital, physician, or
prescription drugs). Claim forms may be obtained from the appropriate
CHAMPUS fiscal intermediary who processes claims for the beneficiary's
state of residence, from the Director, OCHAMPUS, or a designee, or from
CHAMPUS health benefits advisors (HBAs) located at all Uniformed
Services medical facilities.
(5) Prepayment not required. A CHAMPUS beneficiary or sponsor is not
required to pay for the medical services or supplies before submitting a
claim for benefits.
(6) Deductible certificate. If the fiscal year outpatient
deductible, as defined in Sec. 199.4(f)(2) has been met by a
beneficiary or a family through the submission of a claim or claims to a
CHAMPUS fiscal intermediary in a geographic location different from the
location where a current claim is being submitted, the beneficiary or
sponsor must obtain a deductible certificate from the CHAMPUS fiscal
intermediary where the applicable individual or family fiscal year
deductible was met. Such deductible certificate must be attached to the
current claim being submitted for benefits. Failure to obtain a
deductible certificate under
[[Page 200]]
such circumstances will result in a second individual or family fiscal
year deductible being applied. However, this second deductible may be
reimbursed once appropriate documentation, as described in this
paragraph is supplied to the CHAMPUS fiscal intermediary applying the
second deductible (refer to Sec. 199.4 (f)(2)(i)(F)).
(7) Nonavailability Statement (DD Form 1251). In some geographic
locations or under certain circumstances, it is necessary for a CHAMPUS
beneficiary to determine whether the required medical care can be
provided through a Uniformed Services facility. If the required medical
care cannot be provided by the Uniformed Services facility, a
Nonavailability Statement will be issued. When requried (except for
emergencies), this Nonavailability Statement must be issued before
medical care is obtained from civilian sources. Failure to secure such a
statement will waive the beneficiary's rights to benefits under CHAMPUS,
subject to appeal to the appropriate hospital commander (or higher
medical authority).
(i) Rules applicable to issuance of Nonavailability Statement. The
ASD(HA) has issued DoD Instruction 6015.19 that contains rules for the
issuance of Nonavailability Statements. Such rules may change depending
on the current situations.
(ii) Beneficiary responsibility. The beneficiary shall ascertain
whether or not he or she resides in a geographic area that requires
obtaining a Nonavailability Statement. Information concerning current
rules may be obtained from the CHAMPUS fiscal intermediary concerned, a
CHAMPUS HBA or the Director, OCHAMPUS, or a designee.
(iii) Rules in effect at time civilian care is provided apply. The
applicable rules regarding Nonavailability Statements in effect at the
time the civilian care is rendered apply in determining whether a
Nonavailability Statement is required.
(iv) Nonavailability Statement must be filed with applicable claim.
When a claim is submitted for CHAMPUS benefits that includes services
for which a Nonavailability Statement is required, such statement must
be submitted along with the claim form.
(b) Information required to adjudicate a CHAMPUS claim. Claims
received that are not completed fully and that do not provide the
following minimum information may be returned. If enough space is not
available on the appropriate claim form, the required information must
be attached separately and include the patient's name and address, be
dated, and signed.
(1) Patient's identification information. The following patient
identification information must be completed on every CHAMPUS claim form
submitted for benefits before a claim will be adjudicated and processed:
(i) Patient's full name.
(ii) Patient's residence address.
(iii) Patient's date of birth.
(iv) Patient's relationship to sponsor.
Note: If name of patient is different from sponsor, explain (for
example, stepchild or illegitimate child).
(v) Patient's identification number (from DD Form 1173).
(vi) Patient's identification card effective date and expiration
date (from DD Form 1173).
(vii) Sponsor's full name.
(viii) Sponsor's service or social security number.
(ix) Sponsor's grade.
(x) Sponsor's organization and duty station. Home port for ships;
home address for retiree.
(xi) Sponsor's branch of service or deceased or retiree's former
branch of service.
(xii) Sponsor's current status. Active duty, retired, or deceased.
(2) Patient treatment information. The following patient treatment
information routinely is required relative to the medical services and
supplies for which a claim for benefits is being made before a claim
will be adjudicated and processed:
(i) Diagnosis. All applicable diagnoses are required; standard
nomenclature is acceptable. In the absence of a diagnosis, a narrative
description of the definitive set of symptoms for which the medical care
was rendered must be provided.
(ii) Source of care. Full name of source of care (such as hospital
or physician) providing the specific medical services being claimed.
[[Page 201]]
(iii) Full address of source of care. This address must be where the
care actually was provided, not a billing address.
(iv) Attending physician. Name of attending physician (or other
authorized individual professional provider).
(v) Referring physician. Name and address of ordering, prescribing,
or referring physician.
(vi) Status of patient. Status of patient at the time the medical
services and supplies were rendered (that is, inpatient or outpatient).
(vii) Dates of service. Specific and inclusive dates of service.
(viii) Inpatient stay. Source and dates of related inpatient stay
(if applicable).
(ix) Physicians or other authorized individual professional
providers. The claims must give the name of the individual actually
rendering the care, along with the individual's professional status
(e.g., M.D., Ph.D., R.N., etc.) and provider number, if the individual
signing the claim is not the provider who actually rendered the service.
The following information must also be included:
(A) Date each service was rendered.
(B) Procedure code or narrative description of each procedure or
service for each date of service.
(C) Individual charge for each item of service or each supply for
each date.
(D) Detailed description of any unusual complicating circumstances
related to the medical care provided that the physician or other
individual professional provider may choose to submit separately.
(x) Hospitals or other authorized institutional providers. For care
provided by hospitals (or other authorized institutional providers), the
following information also must be provided before a claim will be
adjudicated and processed:
(A) An itemized billing showing each item of service or supply
provided for each day covered by the claim.
Note: The Director, OCHAMPUS, or a designee, may approve, in
writing, an alternative billing procedure for RTCs or other special
institutions, in which case the itemized billing requirement may be
waived. The particular facility will be aware of such approved alternate
billing procedure.
(B) Any absences from a hospital or other authorized institution
during a period for which inpatient benefits are being claimed must be
identified specifically as to date or dates and provide details on the
purpose of the absence. Failure to provide such information will result
in denial of benefits and, in an ongoing case, termination of benefits
for the inpatient stay at least back to the date of the absence.
(C) For hospitals subject to the CHAMPUS DRG-based payment system
(see paragraph (a)(1)(ii)(D) of Sec. 199.14), the following information
is also required:
(1) The principal diagnosis (the diagnosis established, after study,
to be chiefly responsible for causing the patient's admission to the
hospital).
(2) All secondary diagnoses.
(3) All significant procedures performed.
(4) The discharge status of the beneficiary.
(5) The hospital's Medicare provider number.
(6) The source of the admission.
(D) Claims submitted by hospitals (or other authorized institutional
providers) must include the name of the individual actually rendering
the care, along with the individual's professional status (e.g., M.D.,
Ph.D., R.N., etc.).
(xi) Prescription drugs and medicines (and insulin). For
prescription drugs and medicines (and insulin, whether or not a
prescription is required) receipted bills must be attached and the
following additional information provided:
(A) Name of drug.
Note: When the physician or pharmacist so requests, the name of the
drugs may be submitted to the CHAMPUS fiscal intermediary directly by
the physician or pharmacist.
(B) Strength of drug.
(C) Name and address of pharmacy where drug was purchased.
(D) Prescription number of drug being claimed.
(xii) Other authorized providers. For items from other authorized
providers (such as medical supplies), an explanation as to the medical
need must be attached to the appropriate claim form. For purchases of
durable equipment under the PFPWD, it is necessary also to attach a copy
of the preauthorization.
(xiii) Nonparticipating providers. When the beneficiary or sponsor
submits the
[[Page 202]]
claim to the CHAMPUS fiscal intermediary (that is, the provider elects
not to participate), an itemized bill from the provider to the
beneficiary or sponsor must be attached to the CHAMPUS claim form.
(3) Medical records/medical documentation. Medical records are of
vital importance in the care and treatment of the patient. Medical
records serve as a basis for planning of patient care and for the
ongoing evaluation of the patient's treatment and progress. Accurate and
timely completion of orders, notes, etc., enable different members of a
health care team and subsequent health care providers to have access to
relevant data concerning the patient. Appropriate medical records must
be maintained in order to accommodate utilization review and to
substantiate that billed services were actually rendered.
(i) All care rendered and billed must be appropriately documented in
writing. Failure to document the care billed will result in the claim or
specific services on the claim being denied CHAMPUS cost-sharing.
(ii) A pattern of failure to adequately document medical care will
result in episodes of care being denied CHAMPUS cost-sharing.
(iii) Cursory notes of a generalized nature that do not identify the
specific treatment and the patient's response to the treatment are not
acceptable.
(iv) The documentation of medical records must be legible and
prepared as soon as possible after the care is rendered. Entries should
be made when the treatment described is given or the observations to be
documented are made. The following are documentation requirements and
specific time frames for entry into the medical records:
(A) General requirements for acute medical/surgical services:
(1) Admission evaluation report within 24 hours of admission.
(2) Completed history and physical examination report within 72
hours of admission.
(3) Registered nursing notes at the end of each shift.
(4) Daily physician notes.
(B) Requirements specific to mental health services:
(1) Psychiatric admission evaluation report within 24 hours of
admission.
(2) History and physical examination within 24 hours of admission;
complete report documented within 72 hours for acute and residential
programs and within 3 working days for partial programs.
(3) Individual and family therapy notes within 24 hours of procedure
for acute, detoxification and Residential Treatment Center (RTC)
programs and within 48 hours for partial programs.
(4) Preliminary treatment plan within 24 hours of admission.
(5) Master treatment plan within 5 calendar days of admission for
acute care, 10 days for RTC care, 5 days for full-day partial programs
and within 7 days for half-day partial programs.
(6) Family assessment report within 72 hours of admission for acute
care and 7 days for RTC and partial programs.
(7) Nursing assessment report within 24 hours of admission.
(8) Nursing notes at the end of each shift for acute and
detoxification programs; every ten visits for partial hospitalization;
and at least once a week for RTCs.
(9) Daily physician notes for intensive treatment, detoxification,
and rapid stabilization programs; twice per week for acute programs; and
once per week for RTC and partial programs.
(10) Group therapy notes once per week.
(11) Ancillary service notes once per week.
Note: A pattern of failure to meet the above criteria may result in
provider sanctions prescribed under Sec. 199.9.
(4) Double coverage information. When the CHAMPUS beneficiary is
eligible for medical benefits coverage through another plan, insurance,
or program, either private or Government, the following information must
be provided:
(i) Name of other coverage. Full name and address of double coverage
plan, insurance, or program (such as Blue Cross, Medicare, commercial
insurance, and state program).
(ii) Source of double coverage. Source of double coverage (such as
employment, including retirement, private purchase, membership in a
group, and law).
[[Page 203]]
(iii) Employer information. If source of double coverage is
employment, give name and address of employer.
(iv) Identification number. Identification number or group number of
other coverage.
(5) Right to additional information. (i) As a condition precedent to
the cost-sharing of benefits under this part or pursuant to a review or
audit, whether the review or audit is prospective, concurrent, or
retroactive, OCHAMPUS or CHAMPUS contractors may request, and shall be
entitled to receive, information from a physician or hospital or other
person, institution, or organization (including a local, state, or
Federal Government agency) providing services or supplies to the
beneficiary for whom claims or requests for approval for benefits are
submitted. Such information and records may relate to the attendance,
testing, monitoring, examination, diagnosis, treatment, or services and
supplies furnished to a beneficiary and, as such, shall be necessary for
the accurate and efficient administration of CHAMPUS benefits. This may
include requests for copies of all medical records or documentation
related to the episode of care. In addition, before a determination on a
request for preauthorization or claim of benefits is made, a
beneficiary, or sponsor, shall provide additional information relevant
to the requested determination, when necessary. The recipient of such
information shall hold such records confidential except when:
(A) Disclosure of such information is authorized specifically by the
beneficiary;
(B) Disclosure is necessary to permit authorized governmental
officials to investigate and prosecute criminal actions; or
(C) Disclosure is authorized or required specifically under the
terms of DoD Directive 5400.7 and 5400.11, the Freedom of Information
Act, and the Privacy Act (refer to paragraph (m) of Sec. 199.1 of this
part).
(ii) For the purposes of determining the applicability of and
implementing the provisions of Sec. Sec. 199.8 and 199.9, or any
provision of similar purpose of any other medical benefits coverage or
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries, without consent
or notice to any beneficiary or sponsor, may release to or obtain from
any insurance company or other organization, governmental agency,
provider, or person, any information with respect to any beneficiary
when such release constitutes a routine use duly published in the
Federal Register in accordance with the Privacy Act.
(iii) Before a beneficiary's claim of benefits is adjudicated, the
beneficiary or the provider(s) must furnish to CHAMPUS that information
which is necessary to make the benefit determination. Failure to provide
the requested information will result in denial of the claim. A
beneficiary, by submitting a CHAMPUS claim(s) (either a participating or
nonparticipating claim), is deemed to have given consent to the release
of any and all medical records or documentation pertaining to the claims
and the episode of care.
(c) Signature on CHAMPUS Claim Form--(1) Beneficiary signature.
CHAMPUS claim forms must be signed by the beneficiary except under the
conditions identified in paragraph (c)(1)(v) of this section. The parent
or guardian may sign for any beneficiary under 18 years.
(i) Certification of identity. This signature certifies that the
patient identification information provided is correct.
(ii) Certification of medical care provided. This signature
certifies that the specific medical care for which benefits are being
claimed actually were rendered to the beneficiary on the dates
indicated.
(iii) Authorization to obtain or release information. Before
requesting additional information necessary to process a claim or
releasing medical information, the signature of the beneficiary who is
18 years old or older must be recorded on or obtained on the CHAMPUS
claim form or on a separate release form. The signature of the
beneficiary, parent, or guardian will be requested when the beneficiary
is under 18 years.
Note: If the care was rendered to a minor and a custodial parent or
legal guardian requests information prior to the minor turning 18 years
of age, medical records may still be released pursuant to the signature
of the parent or guardian, and claims information
[[Page 204]]
may still be released to the parent or guardian in response to the
request, even though the beneficiary has turned 18 between the time of
the request and the response. However, any follow-up request or
subsequent request from the parent or guardian, after the beneficiary
turns 18 years of age, will necessitate the authorization of the
beneficiary (or the beneficiary's legal guardian as appointed by a
cognizant court), before records and information can be released to the
parent or guardian.
(iv) Certification of accuracy and authorization to release double
coverage information. This signature certifies to the accuracy of the
double coverage information and authorizes the release of any
information related to double coverage. (Refer to Sec. 199.8 of this
part).
(v) Exceptions to beneficiary signature requirement. (A) Except as
required by paragraph (c)(1)(iii) of this section, the signature of a
spouse, parent, or guardian will be accepted on a claim submitted for a
beneficiary who is 18 years old or older.
(B) When the institutional provider obtains the signature of the
beneficiary (or the signature of the parent or guardian when the
beneficiary is under 18 years) on a CHAMPUS claim form at admission, the
following participating claims may be submitted without the
beneficiary's signature.
(1) Claims for laboratory and diagnostic tests and test
interpretations from radiologists, pathologists, neurologists, and
cardiologists.
(2) Claims from anesthesiologists.
(C) Claims filed by providers using CHAMPUS-approved signature-on-
file and claims submission procedures.
(2) Provider's signature. A participating provider (see paragraph
(a)(8) of Sec. 199.6) is required to sign the CHAMPUS claim form.
(i) Certification. A participating provider's signature on a CHAMPUS
claim form:
(A) Certifies that the specific medical care listed on the claim
form was, in fact, rendered to the specific beneficiary for which
benefits are being claimed, on the specific date or dates indicated, at
the level indicated and by the provider signing the claim unless the
claim otherwise indicates another individual provided the care. For
example, if the claim is signed by a psychiatrist and the care billed
was rendered by a psychologist or licensed social worker, the claim must
indicate both the name and profession of the individual who rendered the
care.
(B) Certifies that the provider has agreed to participate (providing
this agreement has been indicated on the claim form) and that the
CHAMPUS-determined allowable charge or cost will constitute the full
charge or cost for the medical care listed on the specific claim form;
and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS
payment combined with the cost-shared amount paid by, or on behalf of
the beneficiary, as full payment for the covered medical services or
supplies.
(1) Thus, neither CHAMPUS nor the sponsor is responsible for any
additional charges, whether or not the CHAMPUS-determined charge or cost
is less than the billed amount.
(2) Any provider who signs and submits a CHAMPUS claim form and then
violates this agreement by billing the beneficiary or sponsor for any
difference between the CHAMPUS-determined charge or cost and the amount
billed is acting in bad faith and is subject to penalties including
withdrawal of CHAMPUS approval as a CHAMPUS provider by administrative
action of the Director, OCHAMPUS, or a designee, and possible legal
action on the part of CHAMPUS, either directly or as a part of a
beneficiary action, to recover monies improperly obtained from CHAMPUS
beneficiaries or sponsors (refer to Sec. 199.6 of this part.)
(ii) Physician or other authorized individual professional provider.
A physician or other authorized individual professional provider is
liable for any signature submitted on his or her behalf. Further, a
facsimile signature is not acceptable unless such facsimile signature is
on file with, and has been authorized specifically by, the CHAMPUS
fiscal intermediary serving the state where the physician or other
authorized individual professional provider practices.
(iii) Hospital or other authorized institutional provider. The
provider signature on a claim form for institutional services must be
that of an authorized representative of the hospital or other authorized
institutional provider,
[[Page 205]]
whose signature is on file with and approved by the appropriate CHAMPUS
fiscal intermediary.
(d) Claims filing deadline. For all services provided on or after
January 1, 1993, to be considered for benefits, all claims submitted for
benefits must, except as provided in paragraph (d)(2) of this section,
be filed with the appropriate CHAMPUS contractor no later than one year
after the services are provided. Unless the requirement is waived,
failure to file a claim within this deadline waives all rights to
benefits for such services or supplies.
(1) Claims returned for additional information. When a claim is
submitted initially within the claim filing time limit, but is returned
in whole or in part for additional information to be considered for
benefits, the returned claim, along with the requested information, must
be resubmitted and received by the appropriate CHAMPUS contractor no
later than the later of:
(i) One year after the services are provided; or
(ii) 90 days from the date the claim was returned to the provider or
beneficiary.
(2) Exception to claims filing deadline. The Director, OCHAMPUS, or
a designee, may grant exceptions to the claims filing deadline
requirements.
(i) Types of exception. (A) Retroactive eligibility. Retroactive
CHAMPUS eligibility determinations.
(B) Administrative error. Administrative error (that is,
misrepresentation, mistake, or other accountable action) of an officer
or employee of OCHAMPUS (including OCHAMPUSEUR) or a CHAMPUS fiscal
intermediary, performing functions under CHAMPUS and acting within the
scope of that official's authority.
(C) Mental incompetency. Mental incompetency of the beneficiary or
guardian or sponsor, in the case of a minor child (which includes
inability to communicate, even if it is the result of a physical
disability).
(D) Delays by other health insurance. When not attributable to the
beneficiary, delays in adjudication by other health insurance companies
when double coverage coordination is required before the CHAMPUS benefit
determination.
(E) Other waiver authority. The Director, OCHAMPUS may waive the
claims filing deadline in other circumstances in which the Director
determines that the waiver is necessary in order to ensure adequate
access for CHAMPUS beneficiaries to health care services.
(ii) Request for exception to claims filing deadline. Beneficiaries
who wish to request an exception to the claims filing deadline may
submit such a request to the CHAMPUS fiscal intermediary having
jurisdiction over the location in which the service was rendered, or as
otherwise designated by the Director, OCHAMPUS.
(A) Such requests for an exception must include a complete
explanation of the circumstances of the late filing, together with all
available documentation supporting the request, and the specific claim
denied for late filing.
(B) Each request for an exception to the claims filing deadline is
reviewed individually and considered on its own merits.
(e) Other claims filing requirements. Notwithstanding the claims
filing deadline described in paragraph (d) of this section, to lessen
any potential adverse impact on a CHAMPUS beneficiary or sponsor that
could result from a retroactive denial, the following additional claims
filing procedures are recommended or required.
(1) Continuing care. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever medical services and supplies are being
rendered on a continuing basis, an appropriate claim or claims should be
submitted every 30 days (monthly) whether submitted directly by the
beneficiary or sponsor or by the provider on behalf of the beneficiary.
Such claims may be submitted more frequently if the beneficiary or
provider so elects. The Director, OCHAMPUS, or a designee, also may
require more frequent claims submission based on dollars. Examples of
care that may be rendered on a continuing basis are outpatient physical
therapy, private duty (special) nursing, or inpatient stays. For claims
subject to the CHAMPUS DRG-based payment system, claims may be submitted
only after the beneficiary has been discharged or transferred from the
hospital.
[[Page 206]]
(2) Inpatient mental health services. Under most circumstances, the
60-day inpatient mental health limit applies to the first 60 days of
care paid in a calendar year. The patient will be notified when the
first 30 days of inpatient mental health benefits have been paid. The
beneficiary is responsible for assuring that all claims for care are
submitted sequentially and on a regular basis. Once payment has been
made for care determined to be medically appropriate and a program
benefit, the decision will not be reopened solely on the basis that
previous inpatient mental health care had been rendered but not yet
billed during the same calendar year by a different provider.
(3) Claims involving the services of marriage and family counselors,
pastoral counselors, and mental health counselors. CHAMPUS requires that
marriage and family counselors, pastoral counselors, and mental health
counselors make a written report to the referrring physician concerning
the CHAMPUS beneficiary's progress. Therefore, each claim for
reimbursement for services of marriage and family counselors, pastoral
counselors, and mental health counselors must include certification to
the effect that a written communication has been made or will be made to
the referring physician at the end of treatment, or more frequently, as
required by the referring physician.
(f) Preauthorization. When specifically required in other sections
of this part, preauthorization requires the following:
(1) Preauthorization must be granted before benefits can be
extended. In those situations requiring preauthorization, the request
for such preauthorization shall be submitted and approved before
benefits may be extended, except as provided in Sec. 199.4(a)(11). If a
claim for services or supplies is submitted without the required
preauthorization, no benefits shall be paid, unless the Director,
OCHAMPUS, or a designee, has granted an exception to the requirement for
preauthorization.
(i) Specifically preauthorized services. An approved
preauthorization specifies the exact services or supplies for which
authorization is being given. In a preauthorization situation, benefits
cannot be extended for services or supplies provided beyond the specific
authorization.
(ii) Time limit on preauthorization. Approved preauthorizations are
valid for specific periods of time, appropriate for the circumstances
presented and specified at the time of the preauthorization is approved.
In general, preauthorization are valid for 30 days. If the preauthorized
service or supplies are not obtained or commenced within the specified
time limit, a new preauthorization is required before benefits may be
extended.
(2) Treatment plan. Each preauthorization request shall be
accompanied by a proposed medical treatment plan (for inpatient stays
under the Basic Program) which shall include generally a diagnosis; a
detailed summary of complete history and physical; a detailed statement
of the problem; the proposed treatment modality, including anticipated
length of time the proposed modality will be required; any available
test results; consultant's reports; and the prognosis. When the
preauthorization request involves transfer from a hospital to another
inpatient facility, medical records related to the inpatient stay also
must be provided.
(3) Claims for services and supplies that have been preauthorized.
Whenever a claim is submitted for benefits under CHAMPUS involving
preauthorized services and supplies, the date of the approved
preauthorization must be indicated on the claim form and a copy of the
written preauthorization must be attached to the appropriate CHAMPUS
claim.
(4) Advance payment prohibited. No CHAMPUS payment shall be made for
otherwise authorized services or items not yet rendered or delivered to
the beneficiary.
(g) Claims review. It is the responsibility of the CHAMPUS fiscal
intermediary (or OCHAMPUS, including OCHAMPUSEUR) to review each CHAMPUS
claim submitted for benefit consideration to ensure compliance with all
applicable definitions, conditions, limitations, or exclusions specified
or enumerated in this part. It is also required that before any CHAMPUS
benefits may be extended,
[[Page 207]]
claims for medical services and supplies will be subject to utilization
review and quality assurance standards, norms, and criteria issued by
the Director, OCHAMPUS, or a designee (see paragraph (a)(1)(v) of Sec.
199.14 for review standards for claims subject to the CHAMPUS DRG-based
payment system).
(h) Benefit payments. CHAMPUS benefit payments are made either
directly to the beneficiary or sponsor or to the provider, depending on
the manner in which the CHAMPUS claim is submitted.
(1) Benefit payments made to beneficiary or sponsor. When the
CHAMPUS beneficiary or sponsor signs and submits a specific claim form
directly to the appropriate CHAMPUS fiscal intermediary (or OCHAMPUS,
including OCHAMPUSEUR), any CHAMPUS benefit payments due as a result of
that specific claim submission will be made in the name of, and mailed
to, the beneficiary or sponsor. In such circumstances, the beneficiary
or sponsor is responsible to the provider for any amounts billed.
(2) Benefit payments made to participating provider. When the
authorized provider elects to participate by signing a CHAMPUS claim
form, indicating participation in the appropriate space on the claim
form, and submitting a specific claim on behalf of the beneficiary to
the appropriate CHAMPUS fiscal intermediary, any CHAMPUS benefit
payments due as a result of that claim submission will be made in the
name of and mailed to the participating provider. Thus, by signing the
claim form, the authorized provider agrees to abide by the CHAMPUS-
determined allowable charge or cost, whether or not lower than the
amount billed. Therefore, the beneficiary or sponsor is responsible only
for any required deductible amount and any cost-sharing portion of the
CHAMPUS-determined allowable charge or cost as may be required under the
terms and conditions set forth in Sec. Sec. 199.4 and 199.5 of this
part.
(3) CEOB. When a CHAMPUS claim is adjudicated, a CEOB is sent to the
beneficiary or sponsor. A copy of the CEOB also is sent to the provider
if the claim was submitted on a participating basis. The CEOB form
provides, at a minimum, the following information:
(i) Name and address of beneficiary.
(ii) Name and address of provider.
(iii) Services or supplies covered by claim for which CEOB applies.
(iv) Dates services or supplies provided.
(v) Amount billed; CHAMPUS-determined allowable charge or cost; and
amount of CHAMPUS payment.
(vi) To whom payment, if any, was made.
(vii) Reasons for any denial.
(viii) Recourse available to beneficiary for review of claim
decision (refer to Sec. 199.10 of this part).
Note: The Director, OCHAMPUS, or a designee, may authorize a CHAMPUS
fiscal intermediary to waive a CEOB to protect the privacy of a CHAMPUS
beneficiary.
(4) Benefit under $1. If the CHAMPUS benefit is determined to be
under $1, payment is waived.
(i) Extension of the Active Duty Dependents Dental Plan to areas
outside the United States. The Assistant Secretary of Defense (Health
Affairs) (ASD(HA) may, under the authority of 10 U.S.C. 1076a(h), extend
the Active Duty Dependents Dental Plan to areas other than those areas
specified in paragraph (a)(2)(i) of this section for the eligible
beneficiaries of members of the Uniformed Services. In extending the
program outside the Continental United States, the ASD(HA), or designee,
is authorized to establish program elements, methods of administration
and payment rates and procedures to providers that are different from
those in effect under this section in the Continental United States to
the extent the ASD(HA), or designee, determines necessary for the
effective and efficient operation of the plan outside the Continental
United States. This includes provisions for preauthorization of care if
the needed services are not available in a Uniformed Service overseas
dental treatment facility and payment by the Department of certain cost-
shares and other portions of a provider's billed charges. Other
differences may occur based on limitations in the availability and
capabilities of the Uniformed Services overseas dental treatment
facility
[[Page 208]]
and a particular nation's civilian sector providers in certain areas.
Otherwise, rules pertaining to services covered under the plan and
quality of care standards for providers shall be comparable to those in
effect under this section in the Continental United States and available
military guidelines. In addition, all provisions of 10 U.S.C. 1076a
shall remain in effect.
(j) General assignment of benefits not recognized. CHAMPUS does not
recognize any general assignment of CHAMPUS benefits to another person.
All CHAMPUS benefits are payable as described in this and other Sections
of this part.
[51 FR 24008, July 1, 1986, as amended at 52 FR 33007, Sept. 1, 1987; 53
FR 5373, Feb. 24, 1988; 54 FR 25246, June 14, 1989; 56 FR 28487, June
21, 1991; 56 FR 59878, Nov. 26, 1991; 58 FR 35408, July 1, 1993; 58 FR
51238, Oct. 1, 1993; 58 FR 58961, Nov. 5, 1993; 62 FR 35097, June 30,
1997; 63 FR 48446, Sept. 10, 1998; 64 FR 38576, July 19, 1999]
Effective Date Note: At 67 FR 42721, June 25, 2002, Sec. 199.7 was
amended by revising paragraph (f)(1)(ii), effective July 25, 2002. For
the convenience of the user the revised text follows:
Sec. 199.7 Claims submission, review, and payment.
* * * * *
(f) * * *
(1) * * *
(ii) Time limit on preauthorization. Approved preauthorizations are
valid for specific periods of time, appropriate for the circumstances
presented and specified at the time the preauthorization is approved. In
general, preauthorizations are valid for 30 days. If the preauthorized
service or supplies are not obtained or commenced within the specified
time limit, a new preauthorization is required before benefits may be
extended. For organ and stem cell transplants, the preauthorization
shall remain in effect as long as the beneficiary continues to meet the
specific transplant criteria set forth in the TRICARE/CHAMPUS Policy
Manual, or until the approved transplant occurs.
* * * * *
Sec. 199.8 Double coverage.
(a) Introduction. (1) In enacting CHAMPUS legislation, Congress
clearly has intended that CHAMPUS be the secondary payer to all health
benefit and insurance plans. 10 U.S.C. 1079(j)(1) specifically provides:
``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 to the extent that the
benefit also is a benefit under the other plan, except in the case of a
plan (Medicaid) administered under title 19 of the Social Security Act
(42 U.S.C. 1396, et seq.).''
(2) The above provision is made applicable specifically to retired
members, dependents, and survivors by 10 U.S.C. 1086(d). The underlying
intent, in addition to preventing waste of Federal resources, is to
ensure that CHAMPUS beneficiaries receive maximum benefits while
ensuring that the combined payments of CHAMPUS and other health benefit
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) 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
[[Page 209]]
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, 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) CHAMPUS always last pay. For any claim that involves a double
coverage plan as defined above, CHAMPUS shall be last pay. That is,
CHAMPUS benefits may not be extended until all other double coverage
plans have adjudicated the claim.
(2) 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.
(3) Last pay limitations. CHAMPUS may not pay more as a secondary
payer than it would have in the absence of other coverages. Application
of double coverage provisions does not extend or add to the CHAMPUS
benefits as otherwise set forth in this and other Sections of this part.
(4) 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.
(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 were 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 the basis 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
[[Page 210]]
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 Medicaid, CHAMPUS is always the
primary payer.
(3) CHAMPUS and Worker's Compensation. CHAMPUS benefits are not
payable for a work-related illness or injury that is covered under a
worker's compensation program.
(4) Program for persons with disabilities (PFPWD). A PFPWD 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, OCHAMPUS, or designee, to be
available and adequate to meet a disability related need for which a
PFPWD 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
PFPWD benefits.
(5) The requirements of paragraph (d)(4) of this section
notwithstanding, CHAMPUS is primary payer for services and items that
are provided under Part C of the IDEA that are medically or
psychologically necessary in accordance with the Individualized Family
Service Plan and that are otherwise allowable under the CHAMPUS Basic
Program or the Program for Persons with Disabilities.
(e) Implementing instructions. The Director, OCHAMPUS, or a
designee,
[[Page 211]]
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]
Sec. 199.9 Administrative remedies for fraud, abuse, and conflict of interest.
(a) General. (1) This section sets forth provisions for invoking
administrative remedies under CHAMPUS in situations involving fraud,
abuse, or conflict of interest. The remedies impact institutional
providers, professional providers, and beneficiaries (including parents,
guardians, or other representatives of beneficiaries), and cover
situations involving criminal fraud, civil fraud, administrative
determinations of conflicts of interest or dual compensation, and
administrative determinations of fraud or abuse. The administrative
actions, remedies, and procedures may differ based upon whether the
initial findings were made by a court of law, another agency, or the
Director, OCHAMPUS (or designee).
(2) This section also sets forth provisions for invoking
administrative remedies in situations requiring administrative action to
enforce provisions of law, regulation, and policy in the administration
of CHAMPUS and to ensure quality of care for CHAMPUS beneficiaries.
Examples of such situations may include a case in which it is discovered
that a provider fails to meet requirements under this part to be an
authorized CHAMPUS provider; a case in which the provider ceases to be
qualified as a CHAMPUS provider because of suspension or revocation of
the provider's license by a local licensing authority; or a case in
which a provider meets the minimum requirements under this part but,
nonetheless, it is determined that it is in the best interest of the
CHAMPUS or CHAMPUS beneficiaries that the provider should not be an
authorized CHAMPUS provider.
(3) The administrative remedies set forth in this section are in
addition to, and not in lieu of, any other remedies or sanctions
authorized by law or regulation. For example, administrative action
under this section may be taken in a particular case even if the same
case will be or has been processed under the administrative procedures
established by the Department of Defense to implement the Program Fraud
Civil Remedies Act.
(4) Providers seeking payment from the Federal Government through
programs such as CHAMPUS have a duty to familiarize themselves with, and
comply with, the program requirements.
(5) CHAMPUS contractors and peer review organizations have a
responsibility to apply provisions of this regulation in the discharge
of their duties, and to report all known situations involving fraud,
abuse, or conflict of interest. Failure to report known situations
involving fraud, abuse, or conflict of interest will result in the
withholding of administrative payments or other contractual remedies as
determined by the Director, OCHAMPUS, or a designee.
(b) Abuse. The term ``abuse'' generally describes incidents and
practices which may directly or indirectly cause financial loss to the
Government under CHAMPUS or to CHAMPUS beneficiaries. For the definition
of abuse, see Sec. 199.2 of this part. The type of abuse to which
CHAMPUS is most vulnerable is the CHAMPUS claim involving the
overutilization of medical and health care services. To avoid abuse
situations, providers have certain obligations to provide services and
supplies under CHAMPUS which are: Furnished at the appropriate level and
only when and to the extent medically necessary as determined under the
provisions of this part; of a quality that meets professionally
recognized standards of health care; and, supported by adequate medical
documentation as may reasonably be required under this part by the
Director, OCHAMPUS, or a designee, to evidence the medical necessity and
quality of services furnished, as well as the appropriateness of the
level of care. A provider's failure to comply with these obligations can
result in sanctions being imposed by the Director, OCHAMPUS, or a
designee,
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under this section. Even when administrative remedies are not initiated
under this section, abuse situations under CHAMPUS are a sufficient
basis for denying all or any part of CHAMPUS cost-sharing of individual
claims. The types of abuse or possible abuse situations under CHAMPUS
include, but are not limited, to the following:
(1) A pattern of waiver of beneficiary (patient) cost-share or
deductible.
Note: In a case of a legitimate bad debt write-off of patient cost-
share or deductible, the provider's record should include documentation
as to what efforts were made to collect the debt, when the debt was
written off, why the debt was written off, and the amount of the debt
written off.
(2) Improper billing practices. Examples include, charging CHAMPUS
beneficiaries rates for services and supplies that are in excess of
those charges routinely charged by the provider to the general public,
commercial health insurance carriers, or other federal health benefit
entitlement programs for the same or similar services. (This includes
dual fee schedules--one for CHAMPUS beneficiaries and one for other
patients or third-party payers. This also includes billing other third-
party payers the same as CHAMPUS is billed but accepting less than the
billed amount as reimbursement. However, a formal discount arrangement
such as through a preferred provider organization, may not necessarily
constitute an improper billing practice.)
(3) A pattern of claims for services which are not medically
necessary or, if medically necessary, not to the extent rendered. For
example, a battery of diagnostic tests are given when, based on the
diagnosis, fewer tests were needed.
(4) Care of inferior quality. For example, consistently furnishing
medical or mental health services that do not meet accepted standards of
care.
(5) Failure to maintain adequate medical or financial records.
(6) Refusal to furnish or allow the Government (for example,
OCHAMPUS) or Government contractors access to records related to CHAMPUS
claims.
(7) Billing substantially in excess of customary or reasonable
charges unless it is determined by OCHAMPUS that the excess charges are
justified by unusual circumstances or medical complications requiring
additional time, effort, or expense in localities when it is accepted
medical practice to make an extra charge in such cases.
(8) Unauthorized use of the term ``Civilian Health and Medical
Program of the Uniformed Services (CHAMPUS)'' in private business. While
the use of the term ``CHAMPUS'' is not prohibited by federal statute,
misrepresentation or deception by use of the term ``CHAMPUS'' to imply
an official connection with the Government or to defraud CHAMPUS
beneficiaries may be a violation of federal statute. Regardless of
whether the actual use of the term ``CHAMPUS'' may be actionable under
federal statute, the unauthorized or deceptive use of the term
``CHAMPUS'' in private business will be considered abuse for purposes of
this Section.
(c) Fraud. For the definition of fraud, see Sec. 199.2 of this
part. Examples of situations which, for the purpose of this part, are
presumed to be fraud include, but are not limited to:
(1) Submitting CHAMPUS claims (including billings by providers when
the claim is submitted by the beneficiary) for services, supplies, or
equipment not furnished to, or used by, CHAMPUS beneficiaries. For
example, billing or claiming services when the provider was on call
(other than an authorized standby charge) and did not provide any
specific medical care to the beneficiary; providing services to an
ineligible person and billing or submitting a claim for the services in
the name of an eligible CHAMPUS beneficiary; billing or submitting a
CHAMPUS claim for an office visit for a missed appointment; or billing
or submitting a CHAMPUS claim for individual psychotherapy when a
medical visit was the only service provided.
(2) Billing or submitting a CHAMPUS claim for costs for noncovered
or nonchargeable services, supplies, or equipment disguised as covered
items. Some examples are: (i) Billings or CHAMPUS claims for services
which would be covered except for the frequency or duration of the
services, such as billing or submitting a claim for two one-hour
psychotherapy sessions furnished on
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separate days when the actual service furnished was a two-hour therapy
session on a single day, (ii) spreading the billing or claims for
services over a time period that reduces the apparent frequency to a
level that may be cost-shared by CHAMPUS, (iii) charging to CHAMPUS,
directly or indirectly, costs not incurred or not reasonably allowable
to the services billed or claimed under CHAMPUS, for example, costs
attributable to nonprogram activities, other enterprises, or the
personal expenses of principals, or (iv) billing or submitting claim on
a fee-for-service basis when in fact a personal service to a specific
patient was not performed and the service rendered is part of the
overall management of, for example, the laboratory or x-ray department.
(3) Breach of a provider participation agreement which results in
the beneficiary (including parent, guardian, or other representative)
being billed for amounts which exceed the CHAMPUS-determined allowable
charge or cost.
(4) Billings or CHAMPUS claims for supplies or equipment which are
clearly unsuitable for the patient's needs or are so lacking in quality
or sufficiency for the purpose as to be virtually worthless.
(5) Billings or CHAMPUS claims which involve flagrant and persistent
overutilization of services without proper regard for results, the
patient's ailments, condition, medical needs, or the physician's orders.
(6) Misrepresentations of dates, frequency, duration, or description
of services rendered, or of the identity of the recipient of the
services or the individual who rendered the services.
(7) Submitting falsified or altered CHAMPUS claims or medical or
mental health patient records which misrepresent the type, frequency, or
duration of services or supplies or misrepresent the name(s) of the
individual(s) who provided the services or supplies.
(8) Duplicate billings or CHAMPUS claims. This includes billing or
submitting CHAMPUS claims more than once for the same services, billing
or submitting claims both to CHAMPUS and the beneficiary for the same
services, or billing or submitting claims both to CHAMPUS and other
third-parties (such as other health insurance or government agencies)
for the same services, without making full disclosure of material facts
or immediate, voluntary repayment or notification to CHAMPUS upon
receipt of payments which combined exceed the CHAMPUS-determined
allowable charge of the services involved.
(9) Misrepresentation by a provider of his or her credentials or
concealing information or business practices which bear on the
provider's qualifications for authorized CHAMPUS provider status. For
example, a provider representing that he or she has a qualifying
doctorate in clinical psychology when the degree is not from a
regionally accredited university.
(10) Reciprocal billing. Billing or claiming services which were
furnished by another provider or furnished by the billing provider in a
capacity other than as billed or claimed. For example, practices such as
the following: (i) One provider performing services for another provider
and the latter bills as though he had actually performed the services
(e.g., a weekend fill-in); (ii) providing service as an institutional
employee and billing as a professional provider for the services; (iii)
billing for professional services when the services were provided by
another individual who was an institutional employee; (iv) billing for
professional services at a higher provider profile than would be paid
for the person actually furnishing the services, (for example, bills
reflecting that an M.D. or Ph.D. performed the services when services
were actually furnished by a licensed social worker, psychiatric nurse,
or marriage and family counselor); or (v) an authorized provider billing
for services which were actually furnished by an unauthorized or
sanctioned provider.
(11) Submitting CHAMPUS claims at a rate higher than a rate
established between CHAMPUS and the provider, if such a rate has been
established. For example, billing or claiming a rate in excess of the
provider's most favored rate limitation specified in a residential
treatment center agreement.
(12) Arrangements by providers with employees, independent
contractors, suppliers, or others which appear to be designed primarily
to overcharge the
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CHAMPUS through various means (such as commissions, fee-splitting, and
kickbacks) used to divert or conceal improper or unnecessary costs or
profits.
(13) Agreements or arrangements between the supplier and recipient
(recipient could be either a provider or beneficiary, including the
parent, guardian, or other representative of the beneficiary) that
result in billings or claims which include unnecessary costs or charges
to CHAMPUS.
(d) Conflict of Interest. (1) Conflict of interest includes any
situation where an active duty member of the Uniformed Services
(including a reserve member while on active duty, active duty for
training, or inactive duty training) or civilian employee of the United
States Government, through an official federal position has the apparent
or actual opportunity to exert, directly or indirectly, any influence on
the referral of CHAMPUS beneficiaries to himself/herself or others with
some potential for personal gain or the appearance of impropriety.
Although individuals under contract to the Uniformed Services are not
considered ``employees,'' such individuals are subject to conflict of
interest provisions by express terms of their contracts and, for
purposes of this part, may be considered to be involved in conflict of
interest situations as a result of their contract positions. In any
situation involving potential conflict of interest of a Uniformed
Service employee, the Director, OCHAMPUS, or a designee, may refer the
case to the Uniformed Service concerned for appropriate review and
action. If such a referral is made, a report of the results of findings
and action taken shall be made to the Director, OCHAMPUS, by the
Uniformed Service having jurisdiction within 90 days of receiving the
referral.
(2) CHAMPUS cost-sharing shall be denied on any claim where a
conflict of interest situation is found to exist. This denial of cost-
sharing applies whether the claim is submitted by the individual who
provided the care, the institutional provider in which the care was
furnished, or the beneficiary.
(e) Dual Compensation. (1) Federal law (5 U.S.C. 5536) prohibits
active duty members of the Uniformed Services or employees (including
part-time or intermittent) appointed in the civil service of the United
States Government from receiving additional compensation from the
Government above their normal pay and allowances. This prohibition
applies to CHAMPUS payments for care furnished to CHAMPUS beneficiaries
by active duty members of the Uniformed Services or civilian employees
of the Government.
(2) CHAMPUS cost-sharing of a claim shall be denied where the
services or supplies were provided by an active duty member of the
Uniformed Services or a civilian employee of the Government. This denial
of CHAMPUS payment applies whether the claim for reimbursement is filed
by the individual who provided the care, the institutional provider in
which the care was furnished, or by the beneficiary.
Note: Physicians of the National Health Service Corps (NHSC) may be
assigned to areas where there is a shortage of medical providers.
Although these physicians would be prohibited from accepting CHAMPUS
payments as individuals if they are employees of the United States
Government, the private organizations to which they may be assigned may
be eligible for payment, as determined by the Director, OCHAMPUS, or a
designee.
(3) The prohibition against dual compensation does not apply to
individuals under contract to the Uniformed Services or the Government.
(f) Administrative Remedies. Administrative remedies available under
CHAMPUS in this section are set forth below.
(1) Provider exclusion or suspension. The Director, OCHAMPUS, or a
designee, shall have the authority to exclude or suspend an otherwise
authorized CHAMPUS provider from the program based on any criminal
conviction or civil judgment involving fraud by the provider; fraud or
abuse under CHAMPUS by the provider; exclusion or suspension of the
provider by another agency of the Federal Government, a state, or local
licensing authority; participation in a conflict of interest situation
by the provider; or, when it is in the best interests of the program or
CHAMPUS beneficiaries to exclude or suspend a provider under CHAMPUS. In
all cases, the exclusion or suspension of a provider shall be effective
15 calendar days from the date
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on the written initial determination issued under paragraph (h)(2) of
this section.
(i) Criminal conviction or civil judgment involving fraud by a
provider--(A) Criminal conviction involving CHAMPUS fraud. A provider
convicted by a Federal, state, foreign, or other court of competent
jurisdiction of a crime involving CHAMPUS fraud, whether the crime is a
felony or misdemeanor, shall be excluded or suspended from CHAMPUS for a
period of time as determined by the Director, OCHAMPUS, or a designee.
The CHAMPUS exclusion or suspension applies whether or not the provider,
as a result of the conviction, receives probation or the sentence is
suspended or deferred, and whether or not the conviction or sentence is
under appeal.
Note: Under the above paragraph (f)(1)(i)(A) of this section, an
entity may be excluded or suspended from CHAMPUS whenever the entity is
found to have a person, convicted of a crime involving CHAMPUS fraud,
who has a direct or indirect ownership or control interest (see Sec.
199.2) of 5 percent or more in the entity, or is an officer, director,
agent or managing employee of the entity. The entity will have an
opportunity to provide evidence to show that the ownership or control
relationship has ceased. While an entity will not be excluded or
suspended from CHAMPUS for employing a provider who has been sanctioned
under this Section, the entity will be denied CHAMPUS payment for any
services furnished by the sanctioned employee. As an authorized CHAMPUS
provider, the entity is responsible for ensuring that all CHAMPUS claims
involve services furnished to CHAMPUS beneficiaries by employees who
meet all requirements under CHAMPUS for provider status.
(B) Criminal conviction involving fraud of other Federal programs.
Any provider convicted by a Federal, state, or other court of competent
jurisdiction of a crime involving another Federal health care or benefit
program (such as plans administered under titles XVIII and XIX of the
Social Security Act, Federal Workmen's Compensation, and the Federal
Employees Program (FEP) for employee health insurance), whether the
crime is a felony or misdemeanor, shall be excluded from CHAMPUS for a
period of time as determined by the Director, OCHAMPUS, or a designee.
The CHAMPUS exclusion or suspension applies whether or not the provider,
as a result of the conviction, receives probation or the sentence is
suspended or deferred, and whether or not the conviction or sentence is
under appeal.
(C) Criminal conviction involving fraud of non-Federal programs. Any
provider convicted by a Federal, state, foreign, or other court of
competent jurisdiction of a crime involving any non-Federal health
benefit program or private insurance involving health benefits may be
excluded or suspended from CHAMPUS for a period of time as determined by
the Director, OCHAMPUS, or a designee.
(D) Civil fraud involving CHAMPUS. If a judgment involving civil
fraud has been entered (whether or not it is appealed) against a
provider in a civil action involving CHAMPUS benefits (whether or not
other Federal programs are involved), the provider shall be excluded or
suspended from CHAMPUS for a period determined by the Director,
OCHAMPUS, or a designee.
(E) Civil fraud involving other programs. If a judgment involving
civil fraud has been entered against a provider (whether or not it has
been appealed) in a civil action involving other public or private
health care programs or health insurance, the provider may be excluded
or suspended for a period of time determined by the Director, OCHAMPUS,
or a designee.
(ii) Administrative determination of fraud or abuse under CHAMPUS.
If the Director, OCHAMPUS, or a designee, determines that a provider has
committed fraud or abuse as defined in this part, the provider shall be
excluded or suspended from CHAMPUS for a period of time determined by
the Director, OCHAMPUS, or designee.
(iii) Administrative determination that the provider has been
excluded or suspended by another agency of the Federal Government, a
state, or local licensing authority. Any provider who is excluded or
suspended by any other Federal health care program (for example,
Medicare), shall be excluded or suspended under CHAMPUS. A provider who
has his/her credentials revoked through a Veterans Administration or
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Military Department credentials review process and who is excluded,
suspended, terminated, retired, or separated, shall also be excluded or
suspended under CHAMPUS. The period of time of exclusion or suspension
shall be determined by the Director, OCHAMPUS, or a designee, pursuant
to paragraph (g) of this section.
(iv) Administrative determination that the provider has participated
in a conflict of interest situation. The Director, OCHAMPUS, or a
designee, may exclude or suspend any provider who has knowingly been
involved in a conflict of interest situation under CHAMPUS. The period
of time of exclusion or suspension shall be determined by the Director,
OCHAMPUS, or a designee, pursuant to paragraph (g) of this section. For
purposes of this administrative determination, it will be presumed that
a CHAMPUS provider knowingly participated in a conflict of interest
situation if the provider employs, in the treatment of a CHAMPUS
beneficiary (resulting in a CHAMPUS claim), any medical personnel who
are active duty members of the Uniformed Services or civilian employees
of the Government. The burden of proof to rebut this presumption rests
with the CHAMPUS provider. Two exceptions will be recognized to the
presumption that a conflict of interest exists. First, indirect CHAMPUS
payments may be made to private organizations to which physicians of the
National Health Service Corps (NHSC) are assigned. Second, any off-duty
Government medical personnel employed in an emergency room of an acute
care hospital will be presumed not to have had the opportunity to exert,
directly or indirectly, any influence on the referral of CHAMPUS
beneficiaries; therefore, CHAMPUS payments may be made to the employing
hospital provided the medical care was not furnished directly by the
off-duty Government medical personnel in violation of dual compensation
provisions.
(v) Administrative determination that it is in the best interests of
the CHAMPUS or CHAMPUS beneficiaries to exclude or suspend a provider--
(A) Unethical or improper practices or unprofessional conduct. (1) In
most instances, unethical or improper practices or unprofessional
conduct by a provider will be program abuse and subject the provider to
exclusion or suspension for abuse. However, in some cases such practices
and conduct may provide an independent basis for exclusion or suspension
of the provider by the Director, OCHAMPUS, or a designee.
(2) Such exclusions or suspensions may be based on findings or
recommendations of state licensure boards, boards of quality assurance,
other regulatory agencies, state medical societies, peer review
organizations, or other professional associations.
(B) In any other case in which the Director, OCHAMPUS (or designee),
determines that exclusion or suspension of a provider is in the best
interests of CHAMPUS or CHAMPUS beneficiaries. The Director, OCHAMPUS,
or a designee, may exclude or suspend any provider if it is determined
that the authorization of that particular provider under CHAMPUS poses
an unreasonable potential for fraud, abuse, or professional misconduct.
Any documented misconduct by the provider reflecting on the business or
professional competence or integrity of the provider may be considered.
Situations in which the Director, OCHAMPUS, or a designee, may take
administrative action under this Section to protect CHAMPUS or CHAMPUS
beneficiaries include, but are not limited to, a case in which it is
determined that a provider poses an unreasonable potential cost to the
Government to monitor the provider for fraud or abuse and to avoid the
issuance of erroneous payments; or that the provider poses an
unreasonable potential harm to the financial or health status of CHAMPUS
beneficiaries; or that the provider poses any other unreasonable threat
to the interests of CHAMPUS or CHAMPUS beneficiaries. One example of
such circumstances involves a provider who, for his/her entire practice
or for most of his/her practice, provides or bills for tratment that is
not a CHAMPUS benefit, resulting in CHAMPUS frequently and repeatedly
denying claims as non-covered services. This may occur when a
professional provider furnishes sex
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therapy (a therapy which may be recognized by the provider's licensing
authority but which is excluded from CHAMPUS coverage) and repeatedly
submits CHAMPUS claims for the services.
(2) Provider termination. The Director, OCHAMPUS, or a designee,
shall terminate the provider status of any provider determined not to
meet the qualifications established by this part to be an authorized
CHAMPUS provider.
(i) Effective date of termination. Except as provided in paragraph
(g)(2)(ii) of this section, the termination shall be retroactive to the
date on which the provider did not meet the requirements of this part.
(A) The retroactive effective date of termination shall not be
limited due to the passage of time, erroneous payment of claims, or any
other events which may be cited as a basis for CHAMPUS recognition of
the provider notwithstanding the fact that the provider does not meet
program qualifications. Unless specific provision is made in this part
to ``grandfather'' or authorize a provider who does not otherwise meet
the qualifications established by this part, all unqualified providers
shall be terminated.
(B) Any claims cost-shared or paid under CHAMPUS for services or
supplies furnished by the provider on or after the effective date of
termination, even when the effective date is retroactive, shall be
deemed an erroneous payment unless specific exception is provided in
this part. All erroneous payments are subject to collection under Sec.
199.11 of this part.
(C) If an institution is terminated as an authorized CHAMPUS
provider, the institution shall immediately give written notice of the
termination to any CHAMPUS beneficiary (or their parent, guardian, or
other representative) admitted to, or receiving care at, the institution
on or after the effective date of the termination. In addition, when an
institution is terminated with an effective date of termination after
the date of the initial determination terminating the provider, any
beneficiary admitted to the institution prior to the effective date of
termination (or their parent, guardian, or other representative) shall
be notified by the Director, OCHAMPUS, or a designee, by certified mail
of the termination, and that CHAMPUS cost-sharing of the beneficiary's
care in the institution will cease as of the effective date of the
termination. However, any beneficiary admitted to the institution prior
to any grace period extended to the institution under paragraph
(f)(2)(ii)(A) of this section shall be advised that, if the
beneficiary's care otherwise qualifies for CHAMPUS coverage, CHAMPUS
cost-sharing of the care in the institution will continue in order to
provide a reasonable period of transition of care; however the
transitional period of CHAMPUS cost-sharing shall not exceed the last
day of the month following the month in which the institution's status
as a CHAMPUS provider is terminated. (This authorized CHAMPUS cost-
sharing of the inpatient care received during the transition period is
an exception to the general rule that CHAMPUS payment for care furnished
after the effective date of termination of the provider's status shall
be deemed to be an erroneous payment.) If a major violation under
paragraph (f)(2)(ii)(B) of this section is involved, in order to ensure
immediate action is taken to transfer beneficiaries to an approved
provider, CHAMPUS cost-sharing shall not be authorized after the
effective date of termination of the provider's status.
(ii) Institutions not in compliance with CHAMPUS standards. If it is
determined that an institution is not in compliance with one or more of
the standards applicable to its specific category of institution under
this part, the Director, OCHAMPUS, or a designee, shall take immediate
steps to bring about compliance or terminate the status of the provider
as an authorized CHAMPUS provider.
(A) Minor violations. An institution determined to be in violation
of one or more of the standards shall be advised by certified mail of
the nature of the discrepancy or discrepancies and will be given a grace
period of 30 days to effect appropriate corrections. The grace period
may be extended at the discretion of the Director, OCHAMPUS, or a
designee, but in no event shall the extension exceed 90 days.
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(1) CHAMPUS will not cost-share a claim for any beneficiary admitted
during the grace period.
(2) Any beneficiary admitted to the institution prior to the grace
period (or the beneficiary's parent, guardian, or other representative)
will be notified by the Director, OCHAMPUS, or a designee, in writing,
of the minor violations and the grace period granted the institution to
correct the violations. The beneficiary will also be advised that, if
the beneficiary's care otherwise meets all requirements for CHAMPUS
coverage, CHAMPUS cost-sharing will continue during the grace period.
(3) If the institution submits written notice before the end of the
grace period that corrective action has been taken and if the Director,
OCHAMPUS, or a designee, determines that the corrective action has
eliminated the minor violations, the provider will be advised that the
institution is restored to full status as an authorized CHAMPUS provider
as of 12:01 a.m. on the day written notice of correction was received by
the Director, OCHAMPUS, or a designee, or the day on which acceptable
corrective action was completed in the judgment of the Director,
OCHAMPUS, or a designee. Any beneficiary admitted to the institution
prior to the grace period will be notified by the Director, OCHAMPUS, or
a designee, of the corrective action and that the provider continues to
be an authorized CHAMPUS provider. CHAMPUS cost-sharing for any
beneficiary admitted to the institution during the grace period shall be
allowed only for care received after 12:01 a.m. on the day written
notice of correction was received by the Director, OCHAMPUS, or a
designee, or the day on which acceptable corrective action was completed
in the judgment of the Director, OCHAMPUS, or a designee.
(4) If the institution has failed to give notification in writing
before the end of the grace period that corrective action has been
completed or, in the judgment of the Director, OCHAMPUS, or a designee,
the institution has not completed acceptable corrective action during
the grace period, the Director, OCHAMPUS, or a designee, may initiate
action to terminate the provider as an authorized CHAMPUS provider.
(B) Major violations. If the Director, OCHAMPUS, or a designee,
determines that an institution is in violation of standards detrimental
to life, safety, or health, or substantially in violation of approved
treatment programs, immediate action shall be taken to terminate the
institution as an authorized CHAMPUS provider. The institution shall be
notified by telegram, certified mail, or express mail of the termination
under this subparagraph, effective on receipt of the notice. The notice
shall include a brief statement of the nature of violations resulting in
the termination and advise the institution that an initial determination
formalizing the administrative action of termination will be issued
pursuant to paragraph (h)(3)(ii) of this section within 15 days.
(3) Beneficiary sanctions. (i) With entitlement to CHAMPUS benefits
based on public law, an eligible beneficiary will not be suspended or
excluded from CHAMPUS. However, the Director, OCHAMPUS, or a designee,
may take action deemed appropriate and reasonable to protect the
Government from those beneficiaries (including sponsors, parents,
guardians, or representatives of beneficiaries) who have submitted false
claims.
(ii) Pursuant to Sec. 199.11 of this part, the Director, OCHAMPUS,
or a designee, may recover erroneous payments on claims involving fraud
or false or misleading statements. Remedies for recovery of the
erroneous payments include the use of offset against future CHAMPUS
payments.
(iii) Under policies adopted by the Director, OCHAMPUS, or a
designee, individuals who, based on reliable information, have
previously submitted fraudulent or false CHAMPUS claims, may be required
to comply with any procedures (e.g., partial or total pre-payment audit
or review, restriction to a designated primary care provider, etc.)
which the Director, OCHAMPUS, or a designee, deems appropriate to ensure
that their future medical care and CHAMPUS claims (including the medical
care and CHAMPUS claims submitted by or for members of their family) are
valid.
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(g) Period of exclusion, suspension, or termination--(1) Exclusions
or suspensions. Except as otherwise required by paragraph (g)(1)(i) of
this section, the Director, OCHAMPUS, or a designee, shall determine the
period of exclusion or suspension for a provider using the factors set
forth in paragraph (g)(1)(ii) of this section.
(i) Exclusion or suspension of a provider based on the provider's
exclusion or suspension by another agency of the Federal Government, a
state, or a local licensing authority. If the administrative action
under CHAMPUS is based solely on the provider's exclusion or suspension
by another agency, state, or local licensing authority, the period of
exclusion or suspension under CHAMPUS shall be for the same length of
time of exclusion or suspension imposed by the other agency, state, or
local licensing authority. The provider may request reinstatement as an
authorized CHAMPUS provider if reinstatement is achieved under the other
program prior to the end of the period of exclusion or suspension. If
the administrative action under CHAMPUS is not based solely on the
provider's exclusion or suspension by another agency, state, or local
licensing authority, the minimum period of exclusion or suspension shall
be for the same period of exclusion or suspension imposed by the other
agency, state, or local licensing authority.
(ii) Factors to be considered in determining the period of exclusion
or suspension of providers under CHAMPUS. In determining the period of
exclusion or suspension of a provider, the Director, OCHAMPUS, or a
designee, may consider any or all of the following:
(A) When the case concerns all or any part of the same issues which
have been the subject of criminal conviction or civil judgment involving
fraud by a provider:
(1) The period(s) of sentence, probation, and other sanction imposed
by court order against the provider may be presumed reasonable and
adopted as the administrative period of exclusion or suspension under
CHAMPUS, unless aggravating or mitigating factors exist.
(2) If any aggravating factors exist, then cause exists for the
Director, OCHAMPUS, or a designee, to consider the factors set forth in
paragraph (g)(1)(ii)(B) of this section, in imposing a period of
administrative exclusion or suspension in excess of the period(s) of
sentence, probation, and/or other sanctions imposed by court order.
Examples of aggravating factors include, but are not limited to:
(i) An administrative determination by the Director, OCHAMPUS, or a
designee, that the basis for administrative exclusion or suspension
includes an act(s) of fraud or abuse under CHAMPUS in addition to, or
unrelated to, an act(s) of fraud included in the court conviction or
civil judgment.
(ii) The fraudulent act(s) involved in the criminal conviction or
civil judgment, or similar acts, were committed over a significant
period of time; that is, one year or more.
(iii) The act(s) of fraud or abuse had an adverse physical, mental,
or financial impact on one or more CHAMPUS beneficiaries.
(iv) The loss or potential loss to CHAMPUS is over $5,000. The
entire amount of loss or potential loss to CHAMPUS due to acts of fraud
and abuse will be considered, in addition to the amount of loss involved
in the court conviction or civil judgment, regardless of whether full or
partial restitution has been made to CHAMPUS.
(v) The provider has a prior court record, criminal or civil, or
administrative record or finding of fraud or abuse.
(3) If any mitigating factors exist, then cause may exist for the
Director, OCHAMPUS, or a designee, to reduce a period of administrative
exclusion or suspension from any period(s) imposed by court conviction
or civil judgment. Only the existence of either of the following two
factors may be considered in mitigation:
(i) The criminal conviction or civil judgment only involved three or
fewer misdemeanor offenses, and the total of the estimated losses
incurred (including any loss from act(s) not involved in the conviction
or judgment) is less than $1,000, regardless of whether full or partial
restitution has been made.
(ii) The criminal or civil court proceedings establish that the
provider had a mental, emotional or physical
[[Page 220]]
condition, prior to or contemporaneous with the commission of the
act(s), that reduced the provider's criminal or civil culpability.
(B) The Director, OCHAMPUS, or a designee, may consider the
following factors in determining a reasonable period of exclusion or
suspension of a provider under CHAMPUS:
(1) The nature of the claims and the circumstances under which they
were presented;
(2) The degree of culpability;
(3) History of prior offenses (including whether claims were
submitted while the provider was either excluded or suspended pursuant
to prior administrative action);
(4) Number of claims involved;
(5) Dollar amount of claims involved;
(6) Whether, if a crime was involved, it was a felony or
misdemeanor;
(7) If patients were injured financially, mentally, or physically;
the number of patients; and the seriousness of the injury(ies);
(8) The previous record of the provider under CHAMPUS;
(9) Whether restitution has been made or arrangements for repayment
accepted by the Government;
(10) Whether the provider has resolved the conflict of interest
situations or implemented procedures acceptable to the Director,
OCHAMPUS, or a designee, which will prevent conflict of interest in the
future; and,
(11) Such other factors as may be deemed appropriate.
(2) Terminations. When a provider's status as an authorized CHAMPUS
provider is ended, other than through exclusion or suspension, the
termination is based on a finding that the provider does not meet the
qualifications to be an authorized provider, as set forth in this part.
Therefore, the period of termination in all cases will be indefinite and
will end only after the provider has successfully met the established
qualifications for authorized provider status under CHAMPUS and has been
reinstated under CHAMPUS. Except as otherwise provided in this
subparagraph, the following guidelines control the termination of
authorized CHAMPUS provider status for a provider whose license to
practice (or, in the case of an institutional provider, to operate) has
been temporarily or permanently suspended or revoked by the jurisdiction
issuing the license.
(i) Termination of the provider under CHAMPUS shall continue even if
the provider obtains a license to practice in a second jurisdiction
during the period of suspension or revocation of the provider's license
by the original licensing jurisdiction. A provider who has licenses to
practice in two or more jurisdictions and has one or more license(s)
suspended or revoked will also be terminated as a CHAMPUS provider.
(A) Professional providers shall remain terminated from the CHAMPUS
until the jurisdiction(s) suspending or revoking the provider's
license(s) to practice restores it or removes the impediment to
restoration.
(B) Institutional providers shall remain terminated under CHAMPUS
until their license is restored. In the event the facility is sold,
transferred, or reorganized as a new legal entity, and a license issued
under a new name or to a different legal entity, the new entity must
submit an application to be an authorized CHAMPUS provider.
(ii) If the CHAMPUS provider status is terminated due to the loss of
the provider's license, the effective date shall be retroactive to the
date the provider lost the license; however, in the case of a
professional provider who has licenses in two or more jurisdictions and
submitted claims from a jurisdiction from which he/she had a valid
license, the effective date of the termination will be 15 calendar days
from the date of the written initial determination of termination for
purposes of claims from the jurisdiction in which the provider still has
a valid license.
(h) Procedures for initiating and implementing the administrative
remedies--(1) Temporary suspension of claims processing. (i) In general,
temporary suspension of claims processing may be invoked to protect the
interests of the Government for a period reasonably necessary to
complete investigation or appropriate criminal, civil, and
administrative proceedings. The temporary suspension only delays the
ultimate payment of otherwise appropriate
[[Page 221]]
claims. When claims processing involving a participating provider is
temporarily suspended, the participation agreement remains in full force
and the provider cannot repudiate the agreement because of the delay in
the final disposition of the claim(s). Once it has been determined
appropriate to end the temporary suspension of claims processing,
CHAMPUS claims which were the subject of the suspension and which are
otherwise determined to be in compliance with the requirements of law
and regulation, will be processed to completion and payment unless such
action is deemed inappropriate as a result of criminal, civil, or
administrative remedies ultimately invoked in the case.
(ii) When adequate evidence exists to determine that a provider or
beneficiary is submitting fraudulent or false claims or claims involving
practices that may be fraud or abuse as defined by this part, the
Director, OCHAMPUS, or a designee, may suspend CHAMPUS claims processing
(in whole or in part) for claims submitted by the beneficiary or any
CHAMPUS claims involving care furnished by the provider. The temporary
suspension of claims processing for care furnished by a provider may be
invoked against all such claims, whether or not the claims are submitted
by the beneficiary or by the provider as a participating CHAMPUS
provider. In cases involving a provider, notice of the suspension of
claims processing may also be given to the beneficiary community either
directly or indirectly through notice to appropriate military
facilities, health benefit advisors, and the information or news media.
(A) Adequate evidence is any information sufficient to support the
reasonable belief that a particular act or omission has occurred.
(B) Indictment or any other initiation of criminal charges, filing
of a complaint for civil fraud, issuance of an administrative complaint
under the Program Fraud Civil Remedies Act, or issuance of an initial
determination under this part for submitting fraudulent or false claims
or claims involving practices that may be fraud or abuse as defined by
this part, shall constitute adequate evidence for invoking temporary
suspension of claims processing.
(iii) The Director, OCHAMPUS, or a designee, may suspend CHAMPUS
claims processing without first notifying the provider or beneficiary of
the intent to suspend payments. Following a decision to invoke a
temporary suspension, however, the Director, OCHAMPUS, or a designee,
shall issue written notice advising the provider or beneficiary that:
(A) A temporary suspension of claims processing has been ordered and
a statement of the basis of the decision to suspend payment. Unless the
suspension is based on any of the actions set forth in paragraph
(h)(1)(ii)(B) of this section, the notice shall describe the suspected
acts or omissions in terms sufficient to place the provider or
beneficiary on notice without disclosing the Government's evidence.
(B) Within 30 days (or, upon written request received by OCHAMPUS
during the 30 days and for good cause shown, within 60 days) from the
date of the notice, the provider or beneficiary may:
(1) Submit to the Director, OCHAMPUS, or a designee, in writing,
information (including documentary evidence) and argument in opposition
to the suspension, provided the additional specific information raises a
genuine dispute over the material facts, or
(2) Submit a written request to present in person evidence or
argument to the Director, OCHAMPUS, or a designee. All such
presentations shall be made at the Office of Civilian Health and Medical
Program of the Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the
provider's or beneficiary's own expense.
(C) Additional proceedings to determine disputed material facts may
be conducted unless:
(1) The suspension is based on any of the actions set forth in
paragraph (h)(1)(ii)(B) of this section, or,
(2) A determination is made, on the basis of the advice of the
responsible Government official (e.g., an official of the Department of
Justice, the designated Reviewing Official under the Program Fraud Civil
Remedies Act, etc.), that the substantial interests of
[[Page 222]]
the Government in pending or contemplated legal or administrative
proceedings based on the same facts as the suspension would be
prejudiced.
(iv) If the beneficiary or provider submits, either in writing or in
person, additional information or argument in opposition to the
suspension, the Director, OCHAMPUS, or a designee, shall issue a
suspending official's decision which modifies, terminates, or leaves in
force the suspension of claims processing. However, a decision to
terminate or modify the suspension shall be without prejudice to the
subsequent imposition of suspension of claims processing, imposition of
sanctions under this Sec. 199.9, the recovery of erroneous payments
under Sec. 199.11 of this part, or any other administrative or legal
action authorized by law or regulation. The suspending official's
decision shall be in writing as follows:
(A) A written decision based on all the information in the
administrative record, including any submission by the beneficiary or
provider, shall be final in a case:
(1) Based on any of the actions set forth in paragraph (h)(1)(ii)(B)
of this section,
(2) In which the beneficiary's or provider's submission does not
raise a genuine dispute over material facts, or
(3) In which additional proceedings to determine disputed material
facts have been denied on the basis of advice of a responsible
Government official that the substantial interests of the Government in
pending or contemplated legal or administrative proceedings would be
prejudiced.
(B) In a case in which additional proceedings are necessary as to
disputed material facts, the suspending official's decision shall advise
the beneficiary or provider that the case has been referred for handling
as a hearing under Sec. 199.10 of this part.
(v) A suspension of claims processing may be modified or terminated
for reasons such as:
(A) Newly discovered evidence;
(B) Elimination of any of the causes for which the suspension was
invoked; or
(C) Other reasons the Director, OCHAMPUS, or a designee, deems
appropriate.
(vi) A suspension of claims processing shall be for a temporary
period pending the completion of investigation and any ensuing legal or
administrative proceedings, unless sooner terminated by the Director,
OCHAMPUS, or a designee, or as provided in this subparagraph.
(A) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless the Government official responsible for initiation
of the legal or administrative action requests its extension, in which
case it may be extended for an additional 6 months. In no event may a
suspension extend beyond 18 months, unless legal or administrative
proceedings have been initiated during that period.
(B) The Director, OCHAMPUS, or a designee, shall notify the
Government official responsible for initiation of the legal or
administrative action of the proposed termination of the suspension, at
least 30 days before the 12-month period expires, to give the official
an opportunity to request an extension.
(2) Notice of proposed administrative sanction. (i) A provider shall
be notified in writing of the proposed action to exclude, suspend, or
terminate the provider's status as an authorized CHAMPUS provider.
(A) The notice shall state which sanction will be taken and the
effective date of that sanction as determined in accordance with the
provisions of this part.
(B) The notice shall inform the provider of the situation(s),
circumstance(s), or action(s) which form the basis for the proposed
sanction and reference the paragraph of this part under which the
administrative action is being taken.
(C) The notice will be sent to the provider's last known business or
office address (or home address if there is no known business address.)
(D) The notice shall offer the provider an opportunity to respond
within 30 days (or, upon written request received by OCHAMPUS during the
30 days and for good cause shown, within 60 days) from the date on the
notice with either:
[[Page 223]]
(1) Documentary evidence and written argument contesting the
proposed action; or,
(2) A written request to present in person evidence or argument to
the Director, OCHAMPUS, or a designee. All such presentations shall be
made at the Office of the Civilian Health and Medical Program of the
Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the provider's own
expense.
(3) Initial determination. (i) If, after the provider has exhausted,
or failed to comply with, the procedures specified in paragraph (h)(2)
of this section, the Director, OCHAMPUS, or a designee, decides to
invoke an administrative remedy of exclusion, suspension, or termination
of a provider under CHAMPUS, written notice of the decision will be sent
to the provider by certified mail. Except in those cases where the
sanction has a retroactive effective date, the written notice shall be
dated no later than 15 days before the decision becomes effective. For
terminations under paragraph (f)(2)(ii)(B) of this section, the initial
determination may be issued without first implementing or exhausting the
procedures specified in paragraph (h)(2) of this section.
(ii) The initial determination shall include:
(A) A statement of the sanction being invoked;
(B) A statement of the effective date of the sanction;
(C) A statement of the facts, circumstances, or actions which form
the basis for the sanction and a discussion of any information submitted
by the provider relevant to the sanction;
(D) A statement of the factors considered in determining the period
of sanction;
(E) The earliest date on which a request for reinstatement under
CHAMPUS will be accepted;
(F) The requirements and procedures for reinstatement; and,
(G) Notice of the available hearing upon request of the sanctioned
provider.
(4) Reinstatement procedures--(i) Restitution. (A) There is no
entitlement under CHAMPUS for payment (cost-sharing) of any claim that
involves either criminal or civil fraud as defined by law, or fraud or
abuse or conflict of interest as defined by this part. In addition,
except as specifically provided in this part, there is no entitlement
under CHAMPUS for payment (cost-sharing) of any claim for services or
supplies furnished by a provider who does not meet the requirements to
be an authorized CHAMPUS provider. In any of the situations described
above, CHAMPUS payment shall be denied whether the claim is submitted by
the provider as a participating claim or by the beneficiary for
reimbursement. If an erroneous payment has been issued in any such case,
collection of the payment will be processed under Sec. 199.11 of this
part.
(B) If the Government has made erroneous payments to a provider
because of claims involving fraud, abuse, or conflicts of interest,
restitution of the erroneous payments shall be made before a request for
reinstatement as a CHAMPUS authorized provider will be considered.
Without restitution or resolution of the debt under Sec. 199.11 of this
part, a provider shall not be reinstated as an authorized CHAMPUS
provider. This is not an appealable issue under Sec. 199.10 of this
part.
(C) For purposes of authorization as a CHAMPUS provider, a provider
who is excluded or suspended under this Sec. 199.9 and who submits
participating claims for services furnished on or after the effective
date of the exclusion or suspension is considered to have forfeited or
waived any right or entitlement to bill the beneficiary for the care
involved in the claims. Similarly, because a provider is expected to
know the CHAMPUS requirements for qualification as an authorized
provider, any participating provider who fails to meet the qualification
requirements for CHAMPUS is considered to have forfeited or waived any
right or entitlement to bill the beneficiary for the care involved in
the CHAMPUS claims. If, in either situtation, the provider bills the
beneficiary, restitution to the beneficiary may be required by the
Director, OCHAMPUS, or a designee, as a condition for consideration of
reinstatement as a CHAMPUS authorized provider.
(ii) Terminated providers. A terminated provider who subsequently
[[Page 224]]
achieves the minimum qualifications to be an authorized CHAMPUS provider
or who has had his/her license reinstated or the impediment to
reinstatement removed by the appropriate licensing jurisdiction may
submit a written request for reinstatement under CHAMPUS to the
Director, OCHAMPUS, or a designee. If restitution or proper
reinstatement of license is not at issue, the Director, OCHAMPUS, or a
designee, will process the request for reinstatement under the
procedures established for initial requests for authorized CHAMPUS
provider status.
(iii) Providers (other than entities) excluded or suspended under
CHAMPUS. (A) A provider excluded or suspended from CHAMPUS (other than
an entity excluded under Sec. 199.9(f)(1)(i)) may seek reinstatement by
submitting a written request to the Director, OCHAMPUS, or a designee,
any time after the date specified in the notice of exclusion or
suspension or any earlier date specified in an appeal decision issued in
the provider's appeal under Sec. 199.10 of this part. The request for
reinstatement shall include:
(1) Documentation sufficient to establish the provider's
qualifications under this part to be a CHAMPUS authorized provider;
(2) A statement from the provider setting forth the reasons why the
provider should be reinstated, accompanied by written statements from
professional associates, peer review bodies, and/or probation officers
(if appropriate), attesting to their belief that the violations that led
to exclusion or suspension will not be repeated.
(B) A provider entity excluded from CHAMPUS under Sec.
199.9(f)(1)(i) may seek reinstatement by submitting a written request to
the Director, OCHAMPUS, or a designee, with documentation sufficient to
establish the provider's qualifications under this part to be a CHAMPUS
authorized provider and either:
(1) Documentation showing the CHAMPUS reinstatement of the excluded
individual provider whose conviction led to the CHAMPUS exclusion or
suspension of the provider entity; or
(2) Documentation acceptable to the Director, OCHAMPUS, or a
designee, that shows that the individual whose conviction led to the
entity's exclusion:
(i) Has reduced his or her ownership or control interest in the
entity below 5 percent; or
(ii) Is no longer an officer, director, agent or managing employee
of the entity; or
(iii) Continues to maintain a 5 percent or more ownership or control
interest in such entity, and that the entity due to circumstances beyond
its control, is unable to obtain a divestiture.
Note: Under paragraph (h)(4)(iii)(B)(2) of this section, the request
for reinstatement may be submitted any time prior to the date specified
in the notice of exclusion or suspension or an earlier date specified in
the appeal decision issued under Sec. 199.10 of this part.
(iv) Action on request for reinstatement. In order to reinstate a
provider as a CHAMPUS authorized provider, the Director, OCHAMPUS, or a
designee, must determine that:
(A) The provider meets all requirements under this part to be an
authorized CHAMPUS provider;
(B) No additional criminal, civil, or administrative action has been
taken or is being considered which could subject the provider to
exclusion, suspension, or termination under this section;
(C) In the case of a provider entity, verification has been made of
the divestiture or termination of the owner, controlling party, officer,
director, agent or managing employee whose conviction led to the
entity's exclusion, or that the provider entity should be reinstated
because the entity, due to circumstances beyond its control, cannot
obtain a divestiture of the 5 percent or more ownership or controlling
interest by the convicted party.
(v) Notice of action on request for reinstatement--(A) Notice of
approval of request. If the Director, OCHAMPUS, or a designee, approves
the request for reinstatement, he or she will:
(1) Give written notice to the sanctioned party specifying the date
when the authorized provider status under CHAMPUS may resume; and
(2) Give notice to those agencies and groups that were originally
notified, in accordance with Sec. 199.9(k), of the imposition of the
sanction. General notice
[[Page 225]]
may also be given to beneficiaries and other parties as deemed
appropriate by the Director, OCHAMPUS, or a designee.
(B) Notice of denial of request. If the Director, OCHAMPUS, or a
designee, does not approve the request for reinstatement, written notice
will be given to the provider. If established procedures for processing
initial requests for authorized provider status are used to review the
request for reinstatement, the established procedures may be used to
provide the notice that the provider does not meet requirements of this
part for such status. If the provider continues to be excluded,
suspended, or terminated under the provisions of this section, the
procedures set forth in this paragraph (h) may be followed in denying
the provider's request for reinstatement.
(5) Reversed or vacated convictions or civil judgments involving
CHAMPUS fraud. (i) If a CHAMPUS provider is excluded or suspended solely
on the basis of a criminal conviction or civil judgment involving a
CHAMPUS fraud and the conviction or judgment is reversed or vacated on
appeal, CHAMPUS will void the exclusion of a provider. Such action will
not preclude the initiation of additional independent administrative
action under this section or any other administrative remedy based on
the same facts or events which were the subject of the criminal
conviction or civil judgment.
(ii) If an exclusion is voided under paragraph (h)(5)(i) of this
section, CHAMPUS will make payment, either to the provider or the
beneficiary (if the claim was not a participating claim) for otherwise
authorized services under CHAMPUS that are furnished or performed during
the period of exclusion.
(iii) CHAMPUS will also void the exclusion of any entity that was
excluded under Sec. 199.9(f)(1)(i) based solely on an individual's
conviction that has been reversed or vacated on appeal.
(iv) When CHAMPUS voids the exclusion of a provider or an entity,
notice will be given to the agencies and others that were originally
notified, in accordance with Sec. 199.9(k).
(i) Evidence required for determinations to invoke administrative
remedies--(1) General. Any relevant evidence may be used by the
Director, OCHAMPUS, or a designee, if it is the type of evidence on
which reasonable persons are accustomed to rely in the conduct of
serious affairs, regardless of the existence of any common law or
statutory rule that might make improper the admission of such evidence
over objection in civil or criminal courts.
(2) Types of evidence. The types of evidence which the Director,
OCHAMPUS, or a designee, may rely on in reaching a determination to
invoke administrative remedies under this section include but are not
limited to the following:
(i) Results of audits conducted by or on behalf of the Government.
Such audits can include the results of 100 percent review of claims and
related records or a statistically valid sample audit of the claims or
records. A statistical sampling shall constitute prima facie evidence of
the number and amount of claims and the instances of fraud, abuse, or
conflict of interest.
(ii) Reports, including sanction reports, from various sources
including a peer review organization (PRO) for the area served by the
provider; state or local licensing or certification authorities; peer or
medical review consultants of the Government, including consultants for
Government contractors; state or local professional societies; or other
sources deemed appropriate by the Director, OCHAMPUS, or a designee.
(iii) Orders or documents issued by Federal, state, foreign, or
other courts of competent jurisdiction which issue findings and/or
criminal convictions or civil judgments involving the provider, and
administrative rulings, findings, or determinations by any agency of the
Federal Government, a state, or local licensing or certification
authority regarding the provider's status with that agency or authority.
(j) Suspending Administrative Action. (1) All or any administrative
action may be suspended by the Director, OCHAMPUS, or a designee,
pending action in the case by the Department of Defense--Inspector
General, Defense Criminal Investigative Service, or the Department of
Justice (including the responsible United States Attorney).
[[Page 226]]
However, action by the Department of Defense--Inspector General or the
Department of Justice, including investigation, criminal prosecution, or
civil litigation, does not preclude administrative action by OCHAMPUS.
(2) The normal OCHAMPUS procedure is to suspend action on the
administrative process pending an investigation by the Department of
Defense--Inspector General or final disposition by the Department of
Justice.
(3) Though OCHAMPUS administrative action is taken independently of
any action by the Department of Defense-Inspector General or by the
Department of Justice, once a case is forwarded to the Department of
Defense-Inspector General or the Department of Justice for legal action
(criminal or civil), administrative action may be held in abeyance.
(4) In some instances there may be dual jurisdiction between
agencies; as in, for example, the joint regulations issued by the
Department of Justice and the Government Accounting Office regarding
debt collection.
(k) Notice to Other Agencies. (1) When CHAMPUS excludes, suspends,
or terminates a provider, the Director, OCHAMPUS, or a designee, will
notify other appropriate agencies (for example, the Department of Health
and Human Services and the state licensing agency that issued the
provider's license to practice) that the individual has been excluded,
suspended, or terminated as an authorized provider under CHAMPUS. An
exclusion, suspension, or termination action is considered a public
record. Such notice can include the notices and determinations sent to
the suspended provider and other public documents such as testimony
given at a hearing or exhibits or depositions given in a lawsuit or
hearing. Notice may also be given to Uniformed Services Military
Treatment Facilities, Health Benefit Advisors, beneficiaries and
sponsors, the news media, and institutional providers if inpatient care
was involved.
(2) If CHAMPUS has temporarily suspended claims processing, notice
of such action normally will be given to the affected provider and
Uniformed Services Medical Treatment Facilities, Health Benefits
Advisors, beneficiaries, and sponsors. Notice may also be given to any
information or news media and any other individual, professional
provider, or institutional provider, as deemed appropriate. However,
since a ``temporary suspension of claims processing'' is by definition
not a final or formal agency action, the basis for the action generally
will not be disclosed. It is noted that the basis for the action can be
a result of questions arising from routine audits to investigation of
possible criminal violations.
(l) Compromise, Settlement, and Resolution Authority. (1) In lieu of
invoking any remedy provided by this Section, the Director, OCHAMPUS, or
a designee, may elect to enter into an agreement with the provider
intended to correct the situation within an established time period and
subject to any remedies deemed appropriate by the Director, OCHAMPUS, or
a designee.
(2) When it is in the best interest of CHAMPUS, the Director,
OCHAMPUS, has the discretionary authority to waive an action or enter
into compromise or settlement of administrative actions taken under this
Sec. 199.9.
(m) Government-wide effect of exclusion or suspension from CHAMPUS.
As provided by section 2455 of the Federal Acquisition Streamlining Act
of 1994, Pub. L. 103-355, October 13 1994, and Executive Order 12549,
``Debarment and Suspension from Federal Financial and Nonfinancial
Assistance Programs,'' February 18, 1986, any health care provider
excluded or suspended from CHAMPUS under this section shall, as a
general rule, also be debarred, suspended, or otherwise excluded from
all other programs and activities involving Federal financial
assistance. Among the other programs for which this debarment,
suspension, or exclusion shall operate are the Medicare and Medicaid
programs. This debarment, suspension, or termination requirement is
subject to limited exceptions in the regulations governing the
respective Federal programs affected. (Note: Other regulations related
to this government-wide exclusion or suspension authority are 32 CFR
Part 25 and 45 CFR Part 76.)
[54 FR 25246, June 14, 1989, as amended at 63 FR 48445, Sept. 10, 1998]
[[Page 227]]
Sec. 199.10 Appeal and hearing procedures.
(a) General. This Section sets forth the policies and procedures for
appealing decisions made by OCHAMPUS, OCHAMPUSEUR, and CHAMPUS
contractors adversely affecting the rights and liabilities of CHAMPUS
beneficiaries, CHAMPUS participating providers, and providers denied the
status of authorized provider under CHAMPUS. An appeal under CHAMPUS is
an administrative review of program determinations made under the
provisions of law and regulation. An appeal cannot challenge the
propriety, equity, or legality of any provision of law or regulation.
(1) Initial determination. (i) Notice of initial determination and
right to appeal. (A) OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors
shall mail notices of initial determinations to the affected provider or
CHAMPUS beneficiary (or representative) at the last known address. For
beneficiaries who are under 18 years of age or who are incompetent, a
notice issued to the parent, guardian, or other representative, under
established CHAMPUS procedures, constitutes notice to the beneficiary.
(B) CHAMPUS contractors and OCHAMPUSEUR shall notify a provider of
an initial determination on a claim only if the provider participated in
the claim. (See Sec. 199.7 of this part.)
(C) CHAMPUS peer review organizations shall notify providers and
fiscal intermediaries of a denial determination on a claim.
(D) Notice of an initial determination on a claim processed by a
CHAMPUS contractor or OCHAMPUSEUR normally will be made on a CHAMPUS
Explanation of Benefits (CEOB) form.
(E) Each notice of an initial determination on a request for benefit
authorization, a request by a provider for approval as an authorized
CHAMPUS provider, or a decsion to disqualify or exclude a provider as an
authorized provider under CHAMPUS shall state the reason for the
determination and the underlying facts supporting the determination.
(F) In any case when the initial determination is adverse to the
beneficiary or participating provider, or to the provider seeking
approval as an authorized CHAMPUS provider, the notice shall include a
statement of the beneficiary's or provider's right to appeal the
determination. The procedure for filing the appeal also shall be
explained.
(ii) Effect of initial determination.
(A) The initial determination is final unless appealed in accordance
with this chapter, or unless the initial determination is reopened by
the TRICARE Management Activity, the CHAMPUS contractor, or the CHAMPUS
peer review organization.
(B) An initial determination involving a CHAMPUS beneficiary
entitled to Medicare Part A, who is enrolled in Medicare Part B, may be
appealed by the beneficiary or their provider under this section of this
Part only when the claimed services or supplies are payable by CHAMPUS
and are not payable under Medicare. Both Medicare and CHAMPUS offer an
appeal process when a claim for healthcare services or supplies is
denied and most healthcare services and supplies are a benefit payable
under both Medicare and CHAMPUS. In order to avoid confusion on the part
of beneficiaries and providers and to expedite the appeal process,
services and supplies denied payment by Medicare will not be considered
for coverage by CHAMPUS if the Medicare denial of payment is appealable
under Medicare. Because such claims are not considered for payment by
CHAMPUS, there can be no CHAMPUS appeal. If, however, a Medicare claim
or appeal results in some payment by Medicare, the services and supplies
paid by Medicare will be considered for payment by CHAMPUS. In that
situation, any decision to deny CHAMPUS payment will be appealable under
this section. The following examples of CHAMPUS appealable issues
involving Medicare-eligible CHAMPUS beneficiaries are illustrative; they
are not all-inclusive:
(1) If Medicare processes a claim for a healthcare service or supply
that is a Medicare benefit and the claim is denied by Medicare for a
patient-specific reason, the claim is appealable through the Medicare
appeal process. The Medicare decision will be final if the claim
[[Page 228]]
is denied by Medicare. The claimed services or supplies will not be
considered for CHAMPUS payment and there is no CHAMPUS appeal of the
CHAMPUS decision denying the claim.
(2) If Medicare processes a claim for a healthcare service or supply
that is a Medicare benefit and the claim is paid, either on initial
submission or as a result of a Medicare appeal decision, the claim will
be submitted to CHAMPUS for processing as a second payer to Medicare. If
CHAMPUS denies payment of the claim, the Medicare-eligible beneficiary
or their provider have the same appeal rights as other CHAMPUS
beneficiaries and their providers under this section.
(3) If Medicare processes a claim and the claim is denied by
Medicare because it is not a healthcare service or supply that is a
benefit under Medicare, the claim is submitted to CHAMPUS. CHAMPUS will
process the claim under Part 199 as primary payer (or as secondary payer
if another double coverage plan exists). If any part of the claim is
denied, the Medicare-eligible beneficiary and their provider will have
the same appeal rights as other CHAMPUS beneficiaries and their
providers under this section.
(2) Participation in an appeal. Participation in an appeal is
limited to any party to the initial determination, including CHAMPUS,
and authorized representatives of the parties. Any party to the initial
determination, except CHAMPUS, may appeal an adverse determination. The
appealing party is the party who actually files the appeal.
(i) Parties to the initial determination. For purposes of the
CHAMPUS appeals and hearing procedures, the following are not parties to
an initial determination and are not entitled to administrative review
under this section.
(A) A provider disqualified or excluded as an authorized provider
under CHAMPUS based on a determination of abuse or fraudulent practices
or procedures under another Federal or federally funded program is not a
party to the CHAMPUS action and may not appeal under this section.
(B) A beneficiary who has an interest in receiving care or has
received care from a particular provider cannot be an appealing party
regarding the exclusion, suspension, or termination of the provider
under Sec. 199.9 of this part.
(C) A sponsor or parent of a beneficiary under 18 years of age or
guardian or an incompetent beneficiary is not a party to the initial
determination and may not serve as the appealing party, although such
persons may represent the appealing party in an appeal.
(D) A third party, such as an insurance company, is not a party to
the initial determination and is not entitled to appeal even though it
may have an indirect interest in the initial determination.
(E) A nonparticipating provider is not a party to the initial
determination and may not appeal.
(ii) Representative. Any party to the initial determination may
appoint a representative to act on behalf of the party in connection
with an appeal. Generally, the parent of a minor beneficiary and the
legally appointed guardian of an incompetent beneficiary shall be
presumed to have been appointed representative without specific
designation by the beneficiary. The custodial parent or legal guardian
(appointed by a cognizant court) of a minor beneficiary may initiate an
appeal based on the above presumption. However, should a minor
beneficiary turn 18 years of age during the course of an appeal, then
any further requests to appeal on behalf of the beneficiary must be from
the beneficiary or pursuant to the written authorization of the
beneficiary appointing a representative. For example, if the beneficiary
is 17 years of age and the sponsor (who is a custodial parent) requests
a formal review, absent written objection by the minor beneficiary, the
sponsor is presumed to be acting on behalf of the minor beneficiary.
Following the issuance of the formal review, the sponsor requests a
hearing; however if, at the time of the request for a hearing, the
beneficiary is 18 years of age or older, the request must either be by
the beneficiary or the beneficiary must appoint a representative. The
sponsor, in this example, could not pursue the request for hearing
without being appointed by the beneficiary as the beneficiary's
representative.
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(A) The representative shall have the same authority as the party to
the appeal and notice given to the representative shall constitute
notice required to be given to the party under this part.
(B) To avoid possible conflicts of interest, an officer or employee
of the United States, such as an employee or member of a Uniformed
Service, including an employee or staff member of a Uniformed Service
legal office, or a CHAMPUS advisor, subject to the exceptions in 18
U.S.C. 205, is not eligible to serve as a representative. An exception
usually is made for an employee or member of a Uniformed Service who
represents an immediate family member. In addition, the Director,
OCHAMPUS, or designee, may appoint an officer or employee of the United
States as the CHAMPUS representative at a hearing.
(3) Burden of proof. The burden of proof is on the appealing party
to establish affirmatively by substantial evidence the appealing party's
entitlement under law and this part to the authorization of CHAMPUS
benefits, approval of authorized CHAMPUS provider status, or removal of
sanctions imposed under Sec. 199.9 of this part. If a presumption
exists under the provisions of this part or information constitutes
prima facie evidence under the provisions of this part, the appealing
party must produce evidence reasonably sufficient to rebut the
presumption or prima facie evidence as part of the appealing party's
burden of proof. CHAMPUS shall not pay any part of the cost or fee,
including attorney fees, associated with producing or submitting
evidence in support of an appeal.
(4) Evidence in appeal and hearing cases. Any relevant evidence may
be used in the administrative appeal and hearing process if it is the
type of evidence on which reasonable persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of any
common law or statutory rule that might make improper the admission of
such evidence over objection in civil or criminal courts.
(5) Late filing. If a request for reconsideration, formal review, or
hearings is filed after the time permitted in this section, written
notice shall be issued denying the request. Late filing may be permitted
only if the appealing party reasonably can demonstrate to the
satisfaction of the Director, OCHAMPUS, or a designee, that the timely
filing of the request was not feasible due to extraordinary
circumstances over which the appealing party had no practical control.
Each request for an exception to the filing requirement will be
considered on its own merits. The decision of the Director, OCHAMPUS, or
a designee, on the request for an exception to the filing requirement
shall be final.
(6) Appealable issue. An appealable issue is required in order for
an adverse determination to be appealed under the provisions of this
section. Examples of issues that are not appealable under this section
include:
(i) A dispute regarding a requirement of the law or regulation.
(ii) The amount of the CHAMPUS-determined allowable cost or charge,
since the methodology for determining allowable costs or charges is
established by this part.
(iii) The establishment of diagnosis-related groups (DRGs), or the
methodology for the classification of inpatient discharges within the
DRGs, or the weighting factors that reflect the relative hospital
resources used with respect to discharges within each DRG, since each of
these is established by this part.
(iv) Certain other issues on the basis that the authority for the
initial determination is not vested in CHAMPUS. Such issues include but
are not limited to the following examples:
(A) Determination of a person's eligibility as a CHAMPUS beneficiary
is the responsibility of the appropriate Uniformed Service. Although
OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors must make determinations
concerning a beneficiary's eligibility in order to ensure proper
disbursement of appropriated funds on each CHAMPUS claim processed,
ultimate responsibility for resolving a beneficiary's eligibility rests
with the Uniformed Services. Accordingly, disputed question of fact
concerning a beneficiary's eligibility will not be considered an
appealable issue under the provisions of this section, but shall be
resolved in accordance with Sec. 199.3 of this part.
[[Page 230]]
(B) Similarly, decisions relating to the issuance of a
Nonavailability Statement (DD Form 1251) in each case are made by the
Uniformed Services. Disputes over the need for a Nonavailability
Statement or a refusal to issue a Nonavailability Statement are not
appealable under this section. The one exception is when a dispute
arises over whether the facts of the case demonstrate a medical
emergency for which a Nonavailability Statement is not required. Denial
of payment in this one situation is an appealable issue.
(C) Any sanction, including the period of the sanction, imposed
under Sec. 199.9 of this part which is based solely on a provider's
exclusion or suspension by another agency of the Federal Government, a
state, or a local licensing authority is not appealable under this
section. The provider must exhaust administrative appeal rights offered
by the other agency that made the initial determination to exclude or
suspend the provider. Similarly, any sanction imposed under Sec. 199.9
which is based solely on a criminal conviction or civil judgment against
the provider is not appealable under this section. If the sanction
imposed under Sec. 199.9 is not based solely on the provider's criminal
conviction or civil judgment or on the provider's exclusion or
suspension by another agency of the Federal Government, a state, or a
local licensing authority, that portion of the CHAMPUS administrative
determination which is in addition to the criminal conviction/civil
judgment or exclusion/suspension by the other agency may be appealed
under this section.
(v) A decision by the Director, OCHAMPUS, or a designee, as a
suspending official when the decision is final under the provisions of
Sec. 199.9(h)(1)(iv)(A).
(7) Amount in dispute. An amount in dispute is required for an
adverse determination to be appealed under the provisions of this
section, except as set forth below.
(i) The amount in dispute is calculated as the amount of money
CHAMPUS would pay if the services and supplies involved in dispute were
determined to be authorized CHAMPUS benefits. Examples of amounts of
money that are excluded by the Regulation from CHAMPUS payments for
authorized benefits include, but are not limited to:
(A) Amounts in excess of the CHAMPUS-determined allowable charge or
cost.
(B) The beneficiary's CHAMPUS deductible and cost-share amounts.
(C) Amounts that the CHAMPUS beneficiary, or parent, guardian, or
other responsible person has no legal obligation to pay.
(D) Amounts excluded under the provisions of Sec. 199.8 of this
part.
(ii) The amount of dispute for appeals involving a denial of a
request for authorization in advance of obtaining care shall be the
estimated allowable charge or cost for the services requested.
(iii) There is no requirement for an amount in dispute when the
appealable issue involves a denial of a provider's request for approval
as an authorized CHAMPUS provider or the determination to exclude,
suspend, or terminate a provider's authorized CHAMPUS provider status.
(iv) Individual claims may be combined to meet the required amount
in dispute if all of the following exist:
(A) The claims involve the same beneficiary.
(B) The claims involve the same issue.
(C) At least one of the claims so combined has had a reconsideration
decision issued by OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer
review organization.
Note: A request for administrative review under this appeal process
which involves a dispute regarding a requirement of law or regulation
(paragraph (a)(6)(i) of this section) or does not involve a sufficient
amount in dispute (paragraph (a)(7) of this section) may not be rejected
at the reconsideration level of appeal. However, an appeal shall involve
an appealable issue and sufficient amount in dispute under these
paragraphs to be granted a formal review or hearing.
(8) Levels of appeal. The sequence and procedures of a CHAMPUS
appeal vary, depending on whether the initial determination was made by
OCHAMPUS, OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review
organization.
(i) Appeal levels for initial determination made by OCHAMPUSEUR,
[[Page 231]]
CHAMPUS contractor, or CHAMPUS peer review organization. (A)
Reconsideration by OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer
review organization.
(B) Formal review by OCHAMPUS (except for CHAMPUS peer review
organization reconsiderations).
(C) Hearing.
(ii) Appeal levels for initial determination made by OCHAMPUS. (A)
Reconsideration by OCHAMPUSEUR or CHAMPUS contractor.
(A) Formal review by OCHAMPUS except (1) initial determinations
involving the suspension of claims processing where the Director,
OCHAMPUS, or a designee, determines that additional proceedings are
necessary as to disputed material facts and the suspending official's
decision is not final under the provisions of Sec. 199.9(h) (1)(iv)(A)
or (2) initial determinations involving the sanctioning (exclusion,
suspension, or termination) of CHAMPUS providers. Initial determinations
involving these matters shall be appealed directly to the hearing level.
(B) Hearing.
(9) Appeal decision. An appeal decision at any level may address all
pertinent issues which arise under the appeal or are otherwise presented
by the information in the case record (for example, the entire episode
of care in the appeal), and shall not be limited to addressing the
specific issue appealed by a party. In the case of sanctions imposed
under Sec. 199.9, the final decision may affirm, increase or reduce the
sanction period imposed by CHAMPUS, or otherwise modify or reverse the
imposition of the sanction.
(b) Reconsideration. Any part to the initial determination made by
OCHAMPUSEUR, the CHAMPUS contractor, or a CHAMPUS peer review
organization may request a reconsideration.
(1) Requesting a reconsideration--(i) Written request required. The
request must be in writing, shall state the specific matter in dispute,
and shall include a copy of the notice of initial determination (such as
the CEOB form) made by OCHAMPUSEUR, the CHAMPUS contractor, or the
CHAMPUS peer review organization.
(ii) Where to file. The request shall be submitted to the office
that made the initial determination (i.e., OCHAMPUSEUR, the CHAMPUS
contractor, or the CHAMPUS peer review organization) or any other
CHAMPUS contractor designated in the notice of initial determination.
(iii) Allowed time to file. The request must be mailed within 90
days after the date of the notice of initial determination.
(iv) Official filing date. A request for a reconsideration shall be
deemed filed on the date it is mailed and postmarked. If the request
does not have a postmark, it shall be deemed filed on the date received
by OCHAMPUSEUR, the CHAMPUS contractor or the CHAMPUS peer review
organization.
(2) The reconsideration process. The purpose of the reconsideration
is to determine whether the initial determination was made in accordance
with law, regulation, policies, and guidelines in effect at the time the
care was provided or requested, or at the time of the initial
determination and/or reconsideration decision involving a provider
request for approval as an authorized provider under CHAMPUS. The
reconsideration is performed by a member of the OCHAMPUSEUR, CHAMPUS
contractor, or CHAMPUS peer review organization staff who was not
involved in making the initial determination and is a thorough and
independent reveiw of the case. The reconsideration is based on the
information submitted that led to the initial determination, plus any
additional information that the appealing party may submit or
OCHAMPUSEUR, the CHAMPUS contractor, or CHAMPUS peer review organization
may obtain.
(3) Timeliness of reconsideration determination. OCHAMPUSEUR, the
CHAMPUS contractor, or CHAMPUS peer review organization normally shall
issue its reconsideration determination no later than 60 days from the
date of receipt of the request for reconsideration by OCHAMPUSEUR, the
CHAMPUS contractor, or the CHAMPUS peer review organization.
(4) Notice of reconsideration determination. OCHAMPUSEUR, the
CHAMPUS contractor, or the CHAMPUS peer review organization shall issue
a written
[[Page 232]]
notice of the reconsideration determination to the appealing party at
his or her last known address. The notice of the reconsideration must
contain the following elements:
(i) A statement of the issues or issue under appeal.
(ii) The provisions of law, regulation, policies, and guidelines
that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that
is relevant to the issue or issues under appeal.
(iv) Whether the reconsideration upholds the initial determination
or reverses it, in whole or in part, and the rationale for the action.
(v) A statement of the right to appeal further in any case when the
reconsideration determination is less than fully favorable to the
appealing party and the amount in dispute is $50 or more.
(5) Effect of reconsideration determination. The reconsideration
determination is final if either of the following exist:
(i) The amount in dispute is less than $50.
(ii) Appeal rights have been offered, but a request for formal
review is not received by OCHAMPUS within 60 days of the date of the
notice of the reconsideration determination.
(c) Formal review. Except as explained in this paragraph, any party
to an initial determination made by OCHAMPUS, or a reconsideration
determination made by the CHAMPUS contractor may request a formal review
by OCHAMPUS if the party is dissatisfied with the initial or
reconsideration determination unless the initial or reconsideration
determination
(1) Is final under paragraph (b)(5) of this section;
(2) Involves the sanctioning of a provider by the exclusion,
suspension or termination of authorized provider status;
(3) Involves a written decision issued pursuant to Sec. 199.9,
paragraph (h)(l)(iv)(A) regarding the temporary suspension of claims
processing; or
(4) Involves a reconsideration determination by a CHAMPUS peer
review organization. A hearing, but not a formal review level of appeal,
may be available to a party to an initial determination involving the
sanctioning of a provider or to a party to a written decision involving
a temporary suspension of claims processing. A beneficiary (or an
authorized representative of a beneficiary), but not a provider, may
request a hearing, but not a formal review, of a reconsideration
determination made by a CHAMPUS peer review organization.
(d) Hearing. Any party to the initial determination may request a
hearing if the party is dissatisfied with the formal review
determination and the formal review determination is not final under the
provisions of paragraph (c)(5), of this section, or the initial
determination involves the sanctioning of a provider under Sec. 199.9
of this part and involves an appealable issue.
(1) Requesting a hearing--(i) Written request required. The request
shall be in writing, state the specific matter in dispute, include a
copy of the appropriate initial determination or formal review
determination being appealed, and include any additional information or
documents not submitted previously.
(ii) Where to file. The request shall be submitted to the Chief,
Appeals and Hearings, OCHAMPUS, Aurora, Colorado 80045-6900.
(iii) Allowed time to file. The request shall be mailed within 60
days after the date of the notice of the initial determination or formal
review determination being appealed.
(iv) Official filing date. A request for hearing shall be deemed
filed on the date it is mailed and postmarked. If a request for hearing
does not have a postmark, it shall be deemed filed on the day received
by OCHAMPUS.
(2) Hearing process. A hearing is an administrative proceeding in
which facts relevant to the appealable issue(s) in the case are
presented and evaluated in relation to applicable law, regulation,
policies, and guidelines in effect at the time the care in dispute was
provided or requested; at the time of the initial determination, formal
review determination, or hearing decision involving a provider request
for approval under CHAMPUS as an authorized provider; or at the time of
the act or event which is the basis for the imposition of sanctions
under this part. A hearing, except for an appeal
[[Page 233]]
involving a provider sanction, generally shall be conducted as a
nonadversary, administrative proceeding. However, an authorized party to
any hearing, including CHAMPUS, may submit additional evidence or
testimony relevant to the appealable issue(s) and may appoint a
representative, including legal counsel, to participate in the hearing
process.
(3) Timeliness of hearing. (i) Except as otherwise provided in this
section, within 60 days following receipt of a request for hearing, the
Director, OCHAMPUS, or a designee, normally will appoint a hearing
officer to hear the appeal. Copies of all records in the possession of
OCHAMPUS that are pertinent to the matter to be heard or that formed the
basis of the formal review determination shall be provided to the
hearing officer and, upon request, to the appealing party.
(ii) The hearing officer, except as otherwise provided in this
Section, normally shall have 60 days from the date of written notice of
assignment to review the file, schedule and hold the hearing, and issue
a recommended decision to the Director, OCHAMPUS, or designee.
(iii) The Director, OCHAMPUS, or designee, may delay the case
assignment to the hearing officer if additional information is needed
that cannot be obtained and included in the record within the time
period specified above. The appealing party will be notified in writing
of the delay resulting from the request for additional information. The
Director, OCHAMPUS, or a designee, in such circumstances, will assign
the case to a hearing officer within 30 days of receipt of all such
additional information, or within 60 days of receipt of the request for
hearing, whichever shall occur last.
(iv) The hearing officer may delay submitting the recommended
decision if, at the close of the hearing, any party to the hearing
requests that the record remain open for submission of additional
information. In such circumstances, the hearing officer will have 30
days following receipt of all such additional information including
comments from the other parties to the hearing concerning the additional
information to submit the recommended decision to the Director,
OCHAMPUS, or a designee.
(4) Representation at a hearing. Any party to the hearing may
appoint a representative to act on behalf of the party at the hearing,
unless such person currently is disqualified or suspended from acting in
another Federal administrative proceeding, or unless otherwise
prohibited by law, this part, or any other DoD regulation (see paragraph
(a)(2)(ii) of this section). A hearing officer may refuse to allow any
person to represent a party at the hearing when such person engages in
unethical, disruptive, or contemptuous conduct, or intentionally fails
to comply with proper instructions or requests of the hearing officer,
or the provisions of this part. The representative shall have the same
authority as the appealing party and notice given to the representative
shall constitute notice required to be given to the appealing party.
(5) Consolidation of proceedings. The Director, OCHAMPUS, or a
designee, may consolidate any number of proceedings for hearing when the
facts and circumstances are similar and no substantial right of an
appealing party will be prejudiced.
(6) Authority of the hearing officer. The hearing officer in
exercising the authority to conduct a hearing under this part will be
bound by 10 U.S.C. chapter 55 and this part. The hearing officer in
addressing substantive, appealable issues shall be bound by policy
manuals, instructions, procedures, and other guidelines issued by the
ASD(HA), or a designee, or by the Director, OCHAMPUS, or a designee, in
effect for the period in which the matter in dispute arose. A hearing
officer may not establish or amend policy, procedures, instructions, or
guidelines. However, the hearing officer may recommend reconsideration
of the policy, procedures, instructions or guidelines by the ASD(HA), or
a designee, when the final decision is issued in the case.
(7) Disqualification of hearing officer. A hearing officer
voluntarily shall disqualify himself or herself and withdraw from any
proceeding in which the hearing officer cannot give fair or impartial
hearing, or in which there is a conflict of interest. A party to the
hearing may
[[Page 234]]
request the disqualification of a hearing officer by filing a statement
detailing the reasons the party believes that a fair and impartial
hearing cannot be given or that a conflict of interest exists. Such
request immediately shall be sent by the appealing party or the hearing
officer to the Director, OCHAMPUS, or a designee, who shall investigate
the allegations and advise the complaining party of the decision in
writing. A copy of such decision also shall be mailed to all other
parties to the hearing. If the Director, OCHAMPUS, or a designee,
reassigns the case to another hearing officer, no investigation shall be
required.
(8) Notice and scheduling of hearing. The hearing officer shall
issue by certified mail, when practicable, a written notice to the
parties to the hearing of the time and place for the hearing. Such
notice shall be mailed at least 15 days before the scheduled date of the
hearing. The notice shall contain sufficient information about the
hearing procedure, including the party's right to representation, to
allow for effective preparation. The notice also shall advise the
appealing party of the right to request a copy of the record before the
hearing. Additionally, the notice shall advise the appealing party of
his or her responsibility to furnish the hearing officer, no later than
7 days before the scheduled date of the hearing, a list of all witnesses
who will testify and a copy of all additional information to be
presented at the hearing. The time and place of the hearing shall be
determined by the hearing officer, who shall select a reasonable time
and location mutually convenient to the appealing party and OCHAMPUS.
(9) Dismissal of request for hearing. (i) By application of
appealing party. A request for hearing may be dismissed by the Director,
OCHAMPUS, or a designee, at any time before the mailing of the final
decision, upon the application of the appealing party. A request for
dismissal must be in writing and filed with the Chief, Appeals and
Hearings, OCHAMPUS, or the hearing officer. When dismissal is requested,
the formal review determination in the case shall be deemed final,
unless the dismissal is vacated in accordance with paragraph (d)(9)(v)
of this section.
(ii) By stipulation of the parties to the hearing. A request for a
hearing may be dismissed by the Director, OCHAMPUS, or a designee, at
any time before to the mailing of notice of the final decision under a
stipulation agreement between the appealing party and OCHAMPUS. When
dismissal is entered under a stipulation, the formal review decision
shall be deemed final, unless the dismissal is vacated in accordance
with paragraph (d)(9)(v) of this section.
(iii) By abandonment. The Director, OCHAMPUS, or a designee, may
dismiss a request for hearing upon abandonment by the appealing party.
(A) An appealing party shall be deemed to have abandoned a request
for hearing, other than when personal appearance is waived in accordance
with Sec. 199.10(d)(11)(xii), if neither the appealing party nor an
appointed representative appears at the time and place fixed for the
hearing and if, within 10 days after the mailing of a notice by
certified mail to the appealing party by the hearing officer to show
cause, such party does not show good and sufficient cause for such
failure to appear and failure to notify the hearing officer before the
time fixed for hearing that an appearance could not be made.
(B) An appealing party shall be deemed to have abandoned a request
for hearing if, before assignment of the case to the hearing officer,
OCHAMPUS is unable to locate either the appealing party or an appointed
representative.
(C) An appealing party shall be deemed to have abandoned a request
for hearing if the appealing party fails to prosecute the appeal.
Failure to prosecute the appeal includes, but is not limited to, an
appealing party's failure to provide information reasonably requested by
OCHAMPUS or the hearing officer for consideration in the appeal.
(D) If the Director, OCHAMPUS, or a designee, dismisses the request
for hearing because of abandonment, the formal review determination in
the case shall be deemed to be final, unless the dismissal is vacated in
accordance with paragraph (d)(9)(v) of this section.
[[Page 235]]
(iv) For cause. The Director, OCHAMPUS, or a designee, may dismiss
for cause a request for hearing either entirely or as to any stated
issue. If the Director, OCHAMPUS, or a designee, dismisses a hearing
request for cause, the formal review determination in the case shall be
deemed to be final, unless the dismissal is vacated in accordance with
paragraph (d)(9)(v) of this section. A dismissal for cause may be issued
under any of the following circumstances:
(A) When the appealing party requesting the hearing is not a proper
party under paragraph (a)(2)(i) of this section, or does not otherwise
have a right to participate in a hearing.
(B) When the appealing party who filed the hearing request dies, and
there is no information before the Director, OCHAMPUS, or a designee,
showing that a party to the initial determination who is not an
appealing party may be prejudiced by the formal review determination.
(C) When the issue is not appealable (see Sec. 199.10(a)(6)).
(D) When the amount in dispute is less than $300 (see Sec.
199.10(a)(7)).
(E) When all appealable issues have been resolved in favor of the
appealing party.
(v) Vacation of dismissal. Dismissal of a request for hearing may be
vacated by the Director, OCHAMPUS, or a designee, upon written request
of the appealing party, if the request is received within 6 months of
the date of the notice of dismissal mailed to the last known address of
the party requesting the hearing.
(10) Preparation for hearing. (i) Prehearing statement of
contentions. The hearing officer may on reasonable notice require a
party to the hearing to submit a written statement of contentions and
reasons. The written statement shall be provided to all parties to the
hearing before the hearing takes place.
(ii) Discovery. Upon the written request of a party to the initial
determination (including OCHAMPUS) and for good cause shown, the hearing
officer will allow that party to inspect and copy all documents, unless
privileged, relevant to issues in the proceeding that are in the
possession or control of the other party participating in the appeal.
The written request shall state clearly what information and documents
are required for inspection and the relevance of the documents to the
issues in the proceeding. Depositions, interrogatories, requests for
admissions, and other forms of prehearing discovery are generally not
authorized and the Department of Defense does not have subpoena
authority for purposes of administrative hearings under this Section. If
the hearing officer finds that good cause exists for taking a deposition
or interrogatory, the expense shall be assessed to the requesting party,
with copies furnished to the hearing officer and the other party or
parties to the hearing.
(iii) Witnesses and evidence. All parties to a hearing are
responsible for producing, at each party's expense, meaning without
reimbursement of payment by CHAMPUS, witnesses and other evidence in
their own behalf, and for furnishing copies of any such documentary
evidence to the hearing officer and other party or parties to the
hearing. The Department of Defense is not authorized to subpoena
witnesses or records. The hearing officer may issue invitations and
requests to individuals to appear and testify without cost to the
Government, so that the full facts in the case may be presented.
(11) Conduct of hearing. (i) Right to open hearing. Because of the
personal nature of the matters to be considered, hearings normally shall
be closed to the public. However, the appealing party may request an
open hearing. If this occurs, the hearing shall be open except when
protection of other legitimate Government purposes dictates closing
certain portions of the hearing.
(ii) Right to examine parties to the hearing and their witnesses.
Each party to the hearing shall have the right to produce and examine
witnesses, to introduce exhibits, to question opposing witnesses on any
matter relevant to the issue even though the matter was not covered in
the direct examination, to impeach any witness regardless of which party
to the hearing first called the witness to testify, and to rebut any
evidence presented. Except for those witnesses employed by OCHAMPUS at
the time of the hearing, or records in
[[Page 236]]
the possession of OCHAMPUS, a party to a hearing shall be responsible,
that is to say no payment or reimbursement shall be made by CHAMPUS for
the cost or fee associated with producing witnesses or other evidence in
the party's own behalf, or for furnishing copies of documentary evidence
to the hearing officer and other party or parties to the hearing.
(iii) Taking of evidence. The hearing officer shall control the
taking of evidence in a manner best suited ascertain the facts and
safeguard the rights of the parties to the hearing. Before taking
evidence, the hearing officer shall identify and state the issues in
dispute on the record and the order in which evidence will be recieved.
(iv) Questioning and admission of evidence. A hearing officer may
question any witness and shall admit any relevant evidence. Evidence
that is irrelevant or unduly repetitious shall be excluded.
(v) Relevant evidence. Any relevant evidence shall be admitted,
unless unduly repetitious, if it is the type of evidence on which
responsible persons are accustomed to rely in the conduct of serious
affairs, regardless of the existence of any common law or statutory rule
that might make improper the admission of such evidence over objection
in civil or criminal actions.
(vi) CHAMPUS determination first. The basis of the CHAMPUS
determinations shall be presented to the hearing officer first. The
appealing party shall then be given the opportunity to establish
affirmatively why this determination is held to be in error.
(vii) Testimony. Testimony shall be taken only on oath, affirmation,
or penalty of perjury.
(viii) Oral argument and briefs. At the request of any party to the
hearing made before the close of the hearing, the hearing officer shall
grant oral argument. If written argument is requested, it shall be
granted, and the parties to the hearing shall be advised as to the time
and manner within which such argument is to be filed. The hearing
officer may require any party to the hearing to submit written memoranda
pertaining to any or all issues raised in the hearing.
(ix) Continuance of hearing. A hearing officer may continue a
hearing to another time or place on his or her own motion or, upon
showing of good cause, at the request of any party. Written notice of
the time and place of the continued hearing, except as otherwise
provided here, shall be in accordance with this part. When a continuance
is ordered during a hearing, oral notice of the time and place of the
continued hearing may be given to each party to the hearing who is
present at the hearing.
(x) Continuance for additional evidence. If the hearing officer
determines, after a hearing has begun, that additional evidence is
necessary for the proper determination of the case, the following
procedures may be invoked:
(A) Continue hearing. The hearing may be continued to a later date
in accordance with Sec. 199.10(d)(11)(ix), above.
(B) Closed hearing. The hearing may be closed, but the record held
open in order to permit the introduction of additional evidence. Any
evidence submitted after the close of the hearing shall be made
available to all parties to the hearing, and all parties to the hearing
shall have the opportunity for comment. The hearing officer may reopen
the hearing if any portion of the additional evidence makes further
hearing desirable. Notice thereof shall be given in accordance with
paragraph (d)(8) of this section.
(xi) Transcript of hearing. A verbatim taped record of the hearing
shall be made and shall become a permanent part of the record. Upon
request, the appealing party shall be furnished a duplicate copy of the
tape. A typed transcript of the testimony will be made only when
determined to be necessary by OCHAMPUS. If a typed transcript is made,
the appealing party shall be furnished a copy without charge.
Corrections shall be allowed in the typed transcript by the hearing
officer solely for the purpose of conforming the transcript to the
actual testimony.
(xii) Waiver of right to appear and present evidence. If all parties
waive their right to appear before the hearing officer for presenting
evidence and contentions personally or by representation, it will not be
necessary for the hearing officer to give notice of, or to
[[Page 237]]
conduct a formal hearing. A waiver of the right to appear must be in
writing and filed with the hearing officer or the Chief, Appeals and
Hearings, OCHAMPUS. Such waiver may be withdrawn by the party by written
notice received by the hearing officer or Chief, Appeals and Hearings,
no later than 7 days before the scheduled hearing or the mailing of
notice of the final decision, whichever occurs first. For purposes of
this Section, failure of a party to appear personally or by
representation after filing written notice of waiver, will not be cause
for finding of abandonment and the hearing officer shall make the
recommended decision on the basis of all evidence of record.
(12) Recommended decision. At the conclusion of the hearing and
after the record has been closed, the matter shall be taken under
consideration by the hearing officer. Within the time frames previously
set forth in this Section, the hearing officer shall submit to the
Director, OCHAMPUS, or a designee, a written recommended decision
containing a statement of findings and a statement of reasons based on
the evidence adduced at the hearing and otherwise included in the
hearing record.
(i) Statement of findings. A statement of findings is a clear and
concise statement of fact evidenced in the record or conclusions that
readily can be deduced from the evidence of record. Each finding must be
supported by substantial evidence that is defined as such evidence as a
reasonable mind can accept as adequate to support a conclusion.
(ii) Statement of reasons. A reason is a clear and concise statement
of law, regulation, policies, or guidelines relating to the statement of
findings that provides the basis for the recommended decision.
(e) Final decision. (1) Director, OCHAMPUS. The recommended decision
shall be reviewed by the Director, OCHAMPUS, or a designee, who shall
adopt or reject the recommended decision or refer the recommended
decision for review by the Assistant Secretary of Defense (Health
Affairs). The Director, OCHAMPUS, or designee, normally will take action
with regard to the recommended decision within 90 days of receipt of the
recommended decision or receipt of the revised recommended decision
following a remand order to the Hearing Officer.
(i) Final action. If the Director, OCHAMPUS, or a designee, concurs
in the recommended decision, no further agency action is required and
the recommended decision, as adopted by the Director, OCHAMPUS, is the
final agency decision in the appeal. In the case of rejection, the
Director, OCHAMPUS, or a designee, shall state the reason for
disagreement with the recommended decision and the underlying facts
supporting such disagreement. In these circumstances, the Director,
OCHAMPUS, or a designee, may have a final decision prepared based on the
record, or may remand the matter to the Hearing Officer for appropriate
action. In the latter instance, the Hearing Officer shall take
appropriate action and submit a new recommended decision within 60 days
of receipt of the remand order. The decision by the Director, OCHAMPUS,
or a designee, concerning a case arising under the procedures of this
section, shall be the final agency decision and the final decision shall
be sent by certified mail to the appealing party or parties. A final
agency decision under paragraph (e)(1) of this section will not be
relied on, used, or cited as precedent by the Department of Defense in
the administration of CHAMPUS.
(ii) Referral for review by ASD(HA). The Director, OCHAMPUS, or a
designee, may refer a hearing case to the Assistant Secretary of Defense
(Health Affairs) when the hearing involves the resolution of CHAMPUS
policy and issuance of a final decision which may be relied on, used, or
cited as precedent in the administration of CHAMPUS. In such a
circumstance, the Director, OCHAMPUS, or a designee, shall forward the
recommended decision, together with the recommendation of the Director,
OCHAMPUS, or a designee, regarding disposition of the hearing case.
(2) ASD(HA). The ASD(HA), or a designee, after reviewing a case
arising under the procedures of this section may issue a final decision
based on the record in the hearing case or remand the case to the
Director, OCHAMPUS,
[[Page 238]]
or a designee, for appropriate action. A decision issued by the ASD(HA),
or a designee, shall be the final agency decision in the appeal and a
copy of the final decision shall be sent by certified mail to the
appealing party or parties. A final decision of the ASD(HA), or a
designee, issued under this paragraph (e)(2) may be relied on, used, or
cited as precedent in the administration of CHAMPUS.
[51 FR 24008, July 1, 1986, as amended at 52 FR 33007, Sept. 1, 1987; 54
FR 25255, June 14, 1989; 55 FR 43341, Nov. 16, 1990; 56 FR 59880, Nov.
26, 1991; 66 FR 40607, Aug. 3, 2001]
Sec. 199.11 Overpayments recovery.
(a) General. Actions to recover overpayments arise when the
government has a right to recover money or property from an individual,
partnership, association, corporation, governmental body or other legal
entity, foreign or domestic, except an instrumentality of the United
States because of an erroneous payment of benefits under the Civilian
Health and Medical Program of the Uniformed Services (CHAMPUS). A claim
against several joint debtors arising from a single incident or
transaction is considered to be one claim. It is the purpose of this
Section to prescribe procedures for investigation, determination,
assertion, collection, compromise, waiver and termination of claims in
favor of the United States for erroneous benefits payments arising out
of administration of CHAMPUS.
(b) Authority. (1) Federal statutory authority. The Federal Claims
Collection Act provides the basic authority under which claims may be
asserted pursuant to this section. It is implemented by joint
regulations issued by the Department of Justice and the General
Accounting Office, 4 CFR parts 101-105. Thereunder, the heads of federal
agencies or their designees are required to attempt collection of all
claims of the United States for money or property arising out of the
activities of their respective agencies. These officials may, with
respect to claims that do not exceed $20,000, exclusive of interest, and
in conformity with the standards promulgated in the joint regulations,
compromise, suspend, or terminate collection action on such claims.
Section 743 of the National Defense Authorization Act for Fiscal Year
1996 (Public Law 104-106) authorizes the waiver (see paragraph (g)(3) of
this section) of collection of overpayments otherwise due from a person
after the termination of the person's CHAMPUS eligibility, because the
person became eligible for Medicare Part A by reason of disability or
end-stage renal disease.
(2) Other authority. Occasionally, federal claims may arise which
are grounded, at least in part, in authority other than the federal
statute referenced above. These include, but are not limited to, claims
arising under:
(i) State worker's compensation laws.
(ii) State hospital lien laws.
(iii) State no-fault automobile statutes.
(iv) Contract rights under terms of insurance policies.
(c) Policy. The governmental policy of avoiding unnecessary
litigation in the collection of claims by the United States for money or
property necessitates aggressive agency collection action. The Director,
OCHAMPUS, or a designee, will insure that CHAMPUS claims asserting
personnel are adequately supported to take timely and effective action.
Claims arising out of any incident which has or probably will generate a
claim in favor of the government will not be compromised nor will
collection action be terminated by any person not authorized to take
final action on the government's claim. By the Act of July 18, 1966 (28
U.S.C. 2415-2418), Congress established a statute of limitation
applicable to the government in areas where previously neither
limitations nor laches were available as a defense. Claims falling
within the provisions of this statute will be processed expeditiously to
the Department of Justice or the General Accounting Office, as
appropriate, without attempting administrative collection action if such
action cannot be accomplished in sufficient time to preclude the running
of the statute of limitations.
(d) Appealability. This section describes the procedures to be
followed in the recovery and collection of federal claims in favor of
the United States arising from the operation of the CHAMPUS. Actions
taken under this section are not initial determinations
[[Page 239]]
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 CHAMPUS 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 fiscal intermediary may erroneously make
payment for services which are excluded as CHAMPUS benefits because they
are determined to be not medically necessary. In that event recoupment
action will be initiated by the fiscal intermediary at the same time the
fiscal intermediary 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. The recoupment action and the
administrative appeal are separate actions. However, in an appropriate
case, the pendency of the appeal may provide a basis for the suspension
of collection in the recoupment. Obviously, if the appeal is resolved
entirely in favor of the appealing party, that would provide a basis for
the termination of collection action in the recoupment case.
(e) Delegation. Subject to the limitations imposed by law or
contained in this section, the authority to assert, settle, compromise
or to suspend or terminate collection action on claims arising under the
Federal Claims Collection Act has been delegated to the Director,
OCHAMPUS, or a designee.
(f) Recoupment of erroneous payments. (1) Erroneous payments.
Erroneous payments are expenditures of government funds which are not
authorized by law or this part. Examples which are sometimes encountered
in the administration of the CHAMPUS include mathematical errors,
payment for care provided to an ineligible person, payment for care
which is not an authorized benefit, payment for duplicate claims,
inaccurate application of the deductible or co-payment, or payment for
services which were not medically necessary. Claims in favor of the
government arising as the result of the filing of false CHAMPUS claims
or other fraud fall under the direct cognizance of the Department of
Justice. Consequently, the procedures in this section apply to such
claims only when specifically authorized or directed by the Department
of Justice. (See 32 CFR 101.3.)
(2) Scope. (i) General. Paragraph (f) of this section and the
paragraphs following contain requirements and procedures for the
assertion, collection or compromise of, and the suspension or
termination of collection action on claims for erroneous payments
against a sponsor, beneficiary, provider, physician or other supplier of
services under the CHAMPUS. These provisions are adopted pursuant to the
Federal Claims Collection Act (31 U.S.C. 3701 et seq., as amended by the
Debt Collection Act of 1982, Pub. L. 97-365), which requires each agency
of the U.S. Government (pursuant to regulations jointly promulgated by
the Attorney General and the Comptroller General) to attempt collection
of federal claims in favor of the United States arising out of the
activities of the agency, and 5 U.S.C. 5514, which provides for
installment deduction for indebtedness to the United States, implemented
by regulations issued by the Office of Personnel Management, 5 CFR part
550, and the Department of Defense, 32 CFR part 90. Paragraph (f) of
this section also includes government-wide collections by salary offset
under 5 U.S.C. 5514.
(ii) Debtor defined. As used herein, ``debtor'' means a sponsor,
beneficiary, provider, physician, other supplier of services or
supplies, or any other person who has for any reason been erroneously
paid under the CHAMPUS. It includes an individual, partnership,
corporation, professional corporation or association, estate, trust or
any other legal entity.
(iii) Delinquency defined. As used herein, a debt is considered
``delinquent'' if it has not been paid by the date specified in the
initial demand for payment (that is, the initial written notification)
or applicable contractual agreement, unless other satisfactory payment
arrangements have been made by that date. A debt is also considered
delinquent if at any time after entering
[[Page 240]]
into a repayment agreement, the debtor fails to satisfy any obligations
under that agreement.
(3) Other health insurance claims. Claims arising from erroneous
CHAMPUS payments in situations where the beneficiary has entitlement to
insurance, medical service, health and medical plan, or other government
program, except in the case of a plan administered under Title XIX of
the Social Security Act (42 U.S.C. 1396 et seq.), through employment, by
law, through membership in an organization, or as a student, or through
the purchase of a private insurance or health plan, shall be recouped
under one of the following procedures:
(i) Where the other health insurance plan has not already made
benefit payments to the beneficiary or provider, a claim for direct
reimbursement will be asserted against the plan, pursuant to the fiscal
intermediary's coordination of benefit procedures.
(ii) If the other health insurance plan has made its benefit payment
prior to receiving the CHAMPUS request for reimbursement, the recoupment
procedures set forth in paragraph (f) of this section will be followed.
(4) Claims denials due to clarification or change. In those
instances where claim review results in the denial of benefits
previously provided but now denied due to a change, clarification or
interpretation of the public law or this part, no recoupment action need
be taken to recover funds expended prior to the effective date of such
change, clarification, or interpretation.
(5) Good faith payment. (i) The Department of Defense, through the
Defense Enrollment Eligibility Reporting System (DEERS), is responsible
for establishing and maintaining a file listing persons eligible to
receive benefits under CHAMPUS. However, it is the responsibility of the
Uniformed Services to provide eligible CHAMPUS beneficiaries with
accurate and appropriate means of identification. When sources of
civilian medical care exercise reasonable care and precaution in
identifying persons claiming to be eligible CHAMPUS beneficiaries and
furnish otherwise covered services and supplies to such persons in good
faith, CHAMPUS benefits may be paid subject to prior approval by the
Director, OCHAMPUS, or a designee, notwithstanding the fact that the
person receiving the services and supplies is subsequently determined to
be ineligible for benefits. Good faith payments will not be authorized
for services and supplies provided by a civilian source of medical care
as the result of its own careless identification procedures.
(ii) When it is determined that a person was not a CHAMPUS
beneficiary, the CHAMPUS fiscal intermediary and the civilian source of
medical care are expected to make all reasonable efforts to obtain
payment or recoup the amount of the good faith payment from the person
who erroneously claimed to be a CHAMPUS beneficiary. Recoupments of good
faith payments initiated by the CHAMPUS fiscal intermediary will be
processed pursuant to the provisions of paragraph (f) of this section.
(6) Recoupment procedures. (i) Initial action. When an erroneous
payment is discovered, the CHAMPUS fiscal intermediary normally will be
required to take the initial action to effect recoupment. Such action
will be in accordance with the provisions of this part and the fiscal
intermediary's CHAMPUS contract and will include demands for refund or
an offset against any other CHAMPUS payment becoming due the debtor.
When the efforts of the CHAMPUS fiscal intermediary to effect recoupment
are not successful within a reasonable time, recoupment cases will be
referred to the General Counsel, OCHAMPUS, for further action in
accordance with the provisions of paragraph (f) of this section. All
requests to debtors for refund or notices of intent to offset shall be
in writing.
(ii) Demand for payment. The CHAMPUS fiscal intermediary and
OCHAMPUS normally shall make a total of at least three progressively
stronger written demands upon the debtor in terms which inform the
debtor of the consequences of his or her failure to cooperate. The
initial written demand shall inform the debtor of the basis for and the
amount of the indebtedness. The initial written demand shall also inform
the debtor of the following: The debtor's right to inspect and copy all
records pertaining to the
[[Page 241]]
debt; his or her right to request an administrative review by the fiscal
intermediary; that interest on the debt at the current rate as
determined by the Director, OCHAMPUS, or a designee, will begin to
accrue on the date of the initial demand notification; that such
interest shall be waived on the debt, or any portion thereof, which is
paid within 30 days of the date of the initial demand notification; that
payment of the indebtedness is due within 30 days of the date of the
initial demand notification; and that administrative costs and penalties
will be charged pursuant to 4 CFR 102.13. The debtor also shall be
informed that collection by offset against current or subsequent claims
may be taken. All debtors will be offered an opportunity to enter into a
written agreement to repay the indebtedness. The fiscal intermediary
demand letters must be dated the same day as they are mailed. Two
written demands, at 30-day intervals, normally will be made by the
CHAMPUS fiscal intermediary unless a response to the first demand
indicates that further demand would be futile or unless prompt suit or
attachment is required in anticipation of the departure of the debtor,
of his removal or transfer of assets, or the running of the statute of
limitations. There should be no undue time lag in responding to any
communication received from the debtor. Responses should be made within
30 days whenever feasible. If these initial efforts at collection are
not productive or if immediate legal action on the claim appears
necessary, the claim either will be referred promptly by the CHAMPUS
fiscal intermediary to the General Counsel, OCHAMPUS, or the CHAMPUS
fiscal intermediary will prepare a final notice informing the debtor
that the debt is to be offset in whole or in part. When a case is
referred to OCHAMPUS, the Office of General Counsel will normally
prepare a third written demand unless from the record such demand
appears futile or otherwise inappropriate.
(iii) Collection by administrative offset. Collections by offset
will be undertaken administratively on claims which are liquidated or
certain in amount in every instance in which this is feasible. No
collection by offset may be undertaken unless a demand for payment
containing all of the procedural safeguards described in paragraph
(f)(6)(ii) of this section, has been sent to the debtor. The
determinations of indebtedness made for recoupment of erroneous CHAMPUS
payments rarely involve issues of credibility of veracity. Erroneous
CHAMPUS payments most frequently arise from claims submitted by
individuals ineligible for CHAMPUS benefits; from claims submitted for
services or supplies not covered by CHAMPUS; from claims in which there
have been other insurance payments which reduce the CHAMPUS liability
and from claims from participating providers in which payment is
initially erroneously made to the beneficiary. While these recoupment
claims normally involve the resolution of factual questions, these
resolution nearly always require only reference to the documentary
evidence compiled in the investigation and processing of the claim. The
appeals system described in Sec. 199.10 of this part affords a CHAMPUS
beneficiary or participating provider an opportunity for an
administrative appellate review, including, under certain circumstances,
the right to oral hearing before a hearing officer. Further, there is no
statutory provision for the waiver of indebtedness arising from
erroneous CHAMPUS payments, other than the provisions of the Federal
Claims Collection Act which allow for the compromise of claims or the
termination of collection action under certain circumstances specified
in paragraph (g) of this section. Consequently, the pre-offset oral
hearing requirements of the Federal Claims Collection Standards (4 CFR
102.3) do not apply to the recoupment of erroneous CHAMPUS payments.
CHAMPUS fiscal intermediaries may take administrative action to offset
erroneous payments against other current CHAMPUS payments owing a
debtor. Payments on the claims of a debtor pending at or filed
subsequent to the time collection action is initiated should be
suspended pending the outcome of the collection action so that these
funds will be available for offset. All or any part of a debt may be
offset depending upon the amount available for offset. Only the case in
which no
[[Page 242]]
possibility of offset arises within 60 days of the initiation of
collection action and on which other collection efforts have been
unsuccessful or in which the debtor seeks relief from the indebtedness
will be referred to the General Counsel, OCHAMPUS, by the CHAMPUS fiscal
intermediary. Offset, under the provisions of 31 U.S.C. 3716, is not to
be used with respect to debts owed by any state or local government. Any
requests for offset that are received from other agencies shall be
forwarded to the General Counsel, OCHAMPUS, for processing, as will
orders for garnishment issued by courts of competent jurisdiction.
(iv) Collection of installments. CHAMPUS recoupment claims should be
collected in one lump sum whenever possible. However, if the debtor is
financially unable to pay the debt in one lump sum, payment may be
accepted in regular installments by the CHAMPUS fiscal intermediary or
the General Counsel, OCHAMPUS. Installment payments normally will be
required on at least a monthly basis and their size will bear a
reasonable relation to the size of the debt and the debtor's ability to
pay. A CHAMPUS fiscal intermediary should not enter into installment
agreements which extend beyond 24 months. OCHAMPUS installment
agreements normally should liquidate the government's claim within 3
years. Installment payments of less than $50 per month normally will be
accepted only if justifiable on grounds of financial hardship or some
other reasonable cause. Any installment agreement with a debtor in which
the total amount of the deferred installments will exceed $750 should
normally include an executed promissory note.
(v) Interest, penalties, and administrative costs. Interest shall be
charged on CHAMPUS recoupment debts and debts collected in installments
in accordance with 4 CFR 102.13 and instructions issued by the Director,
OCHAMPUS, or a designee. Interest shall accrue from the date on which
the initial demand is mailed to the debtor. The rate of interest
assessed shall be the rate of the current value of funds to the United
States Treasury (that is, the Treasury tax and loan account rate). The
rate of interest, as initially assessed shall remain fixed for the
duration of the indebtedness, except that where the debtor has defaulted
on a repayment agreement and seeks to enter into a new agreement, a new
interest rate may be set which reflects the current value of funds to
the Treasury at the time the new agreement is executed. The collection
of interest on the debt or any portion of the debt, which is paid within
30 days after the date on which interest began to accrue, shall be
waived. The agency may extend this 30-day period, on a case-by-case
basis, if it reasonably determines that such action is appropriate.
Also, the collection of interest, penalties, and administrative costs
may be waived in whole or in part as a part of the compromise of a debt
as provided in paragraph (g) of this section. In addition, the Director,
OCHAMPUS, or a designee, may waive in whole or in part, the collection
of interest, penalties, or administrative costs assessed herein, if he
or she determines that collection of these charges would be against
equity and good conscience or not in the best interests of the United
States. Some situations in which such a waiver may be appropriate
include:
(A) Waiver of interest consistent with 4 CFR 104.2(c)(2) in
connection with a suspension of collection action pending a CHAMPUS
appeal under Sec. 199.10 of this part where there is a substantial
issue of fact in dispute.
(B) Waiver of interest where the original debt arose through no
fault or lack of good faith on the part of the debtor and the collection
of interest would impose a financial hardship or burden on the debtor.
Some examples in which such a waiver may be appropriate include: a debt
arising when a CHAMPUS beneficiary, who is unaware of the loss of
eligibility for CHAMPUS because he or she has become eligible for
Medicare, continues to file and be paid for CHAMPUS claims, resulting in
erroneous CHAMPUS payments; a debt arising when a CHAMPUS beneficiary in
good faith files and is paid a CHAMPUS claim for medical services or
supplies which are later determined not to be benefits of CHAMPUS; and a
debt arising when a CHAMPUS beneficiary is overpaid as the result of a
[[Page 243]]
calculation error on the part of a fiscal intermediary or OCHAMPUS.
(C) Waiver of interest where there has been an agreement to repay a
debt in installments, there is no indication of fault or lack of good
faith on the part of the debtor, and the amount of interest is so large
in relation to the size of the installments that the debtor can
reasonably afford to pay, that it is likely the debt will never be
repaid in full.
When a debt is paid in installments, the installment payments first will
be applied to the payment of outstanding penalty and administrative cost
charges, second to accrued interest and then to principal.
Administrative costs incurred as the result of a debt becoming
delinquent (as defined in paragraph (f)(2)(iii) of this section) shall
be assessed against a debtor. These administrative costs represent the
additional costs incurred in processing and handling the debt because it
became delinquent. The calculation of administrative costs should be
based upon cost analysis establishing an average of actual additional
costs incurred in processing and handling claims against other debtors
in similar stages of delinquency. A penalty charge, not exceeding six
percent a year shall be assessed on any portion of a debt that is
delinquent for more than 90 days. This charge, which need not be
calculated until the 91st day of delinquency, shall accrue from the date
that the debt became delinquent.
(vi) Referral to other federal agencies for administrative offset.
As appropriate and in accordance with 4 CFR part 1023, agencies will be
requested to initiate administrative offset to collect CHAMPUS debts.
When a debtor is employed by the U.S. Government, or is a member or
retired member of the Uniformed Service, and collection by offset
against other CHAMPUS payments due the debtor cannot be accomplished,
and there have been no positive responses to a demand for payment within
60 days, the Director, OCHAMPUS, or a designee, may contact the agency
holding funds payable to the debtor for payment by allotment or
otherwise by salary offset from current disposable pay in accordance
with 37 U.S.C. 1007 or 5 U.S.C. 5514 as implemented by 32 CFR part 90
and 5 CFR part 550. Where applicable, the request for recovery of
erroneous CHAMPUS payments shall be submitted to the debtor's paying
agency in accordance with 5 CFR 550.1106. Before contacting the paying
agency, the Director, OCHAMPUS, or a designee, will provide the debtor
written notification of the agency's intent to collect the debt by means
of salary offset, authorized by 5 U.S.C. 5514. The notification will
include, as a minimum:
(A) The agency's determination that a debt is owed, including the
origin, nature, and the amount of the debt;
(B) The date by which payment is to be made, which will normally be
30 days from the date the demand letter is mailed;
(C) The amount, frequency, proposed beginning date and duration of
the intended deductions, which will be determined in accordance with the
provisions of 5 CFR 550.1104 or 32 CFR part 90, as appropriate.
Ordinarily, the size of installment deductions must bear a reasonable
relationship to the size of the debt and the employee's ability to pay
(4 CFR 102.11). However, the amount deducted for any period must not
exceed 15 percent of the disposable pay from which the deduction is made
unless the debtor has agreed in writing to the deduction of a greater
amount. Debts must be collected in one lump-sum whenever possible.
However, if the employee is financially unable to pay in one lump-sum,
or the amount of the debt exceeds 15 percent of current disposable pay
for an officially established pay interval, collection must be made in
installments. Such installment deductions must be made to effect
collection within the period of anticipated active duty or employment.
If the debtor retires or resigns or if his or her employment or period
of active duty ends before collection of the debt is completed, offset
from subsequent payments of any kind due the employee from the paying
agency as of the date of separation shall be made to the extent
necessary to liquidate the debt pursuant to 31 U.S.C. 3716 as
implemented by 5 CFR part 550 and 32 CFR part 90. If possible, the
installment payments should be sufficient in size and frequency to
liquidate the government's claim in not more than 3
[[Page 244]]
years. Installment payments of less than $50 per month should be
accepted only with reasonable justification. An employee's involuntary
payment of all or any portion of a debt being collected under 5 U.S.C.
5514 will not be construed as a waiver of any rights the debtor may have
under that statute or any other provisions of contract or law, unless
there are statutory or contractual provisions to the contrary.
(D) An explanation of interest, penalties, and administrative costs,
including a statement that such assessments must be made unless excused
in accordance with the Federal Claims Collection Standards;
(E) Advice that the debtor may inspect and copy government records
relating to the debt or, if debtor or his or her representative cannot
personally inspect the records, to request and receive a copy of such
records. Requests for copies of the records relating to the debt shall
be made no later than 10 days from the receipt by the debtor of the
notice of indebtedness.
(F) An opportunity for a review by the agency of its determination
regarding the existence or the amount of the debt, or when a repayment
schedule is established other than by written agreement, concerning the
terms of the repayment schedule. The debtor shall be advised that a
challenge to either the existence of the debt, the amount of the debt,
or the repayment schedule, must be made within 30 days of the receipt by
the debtor of the notice of indebtedness or within 45 days after receipt
of the records relating to the debt, if such records are requested by
the debtor. A request for waiver or reconsideration should be
accompanied by supporting documents indicating why the debtor believes
he is not so indebted, or by a financial affidavit supporting his
request for an alternative repayment schedule;
(G) Notice that the timely filing of a petition for review will stay
the commencement of collection proceedings;
(H) Notice that a final decision on the review (if one is requested)
will be issued at the earliest practical date, but not later than 60
days after the filing of the petition requesting the review unless the
employee requests, and the agency grants, a delay in the proceedings;
(I) The opportunity, if it has not been previously provided, to
enter into a written agreement to establish a schedule for repayment of
the debt in lieu of offset. The agreement will be signed by both the
debtor and the agency's representative and will be kept in the agency's
files;
(J) Notice that any knowingly false or frivolous statements,
representations, or evidence may subject the debtor to:
(1) Disciplinary procedures appropriate under chapter 75 of Title 5
U.S. Code, 5 CFR part 752, or any other applicable statutes or
regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or
any other applicable authority, or
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002, or
any other applicable authority;
(K) Where applicable, notice of the debtor's right to appeal, under
Sec. 199.10 of this part;
(L) That amounts paid on or deducted for the debt which are later
waived or found not owed to the United States will promptly be refunded
to the debtor. Refunds do not bear interest unless required or permitted
by law or contract;
(M) The specific address to which all correspondence regarding the
debt shall be directed. Unless otherwise prohibited by law, moneys which
are due and payable to a debtor from the Civil Service Retirement and
Disability Fund may be administratively offset in reasonable amounts in
order to collect in one full payment or a minimal number of payments
debts owed to the United States by the debtor. The General Counsel,
OCHAMPUS, may forward requests for offset of debts arising from the
operation of CHAMPUS to the appropriate officials of the Office of
Personnel Management. These requests shall comply with the provisions of
4 CFR 102.4 and 5 CFR part 550.
(vii) Referral to debt collection agencies. Pursuant to the
provisions of the Federal Claims Collection Standards (4 CFR 102.6), the
Director, OCHAMPUS, or a designee, is authorized to enter into contracts
for collection services,
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including contracts with private collection agencies for the purpose of
supplementing and strengthening the collection efforts of the Department
of Defense in recouping erroneous CHAMPUS payments. Such contracts will
supplement but not replace the basic collection program described
herein. The authority to resolve disputes, compromise claims, terminate
collection action and initiate legal action may not be delegated in such
contracts but will be retained by the Director, OCHAMPUS, or a designee.
Individuals or firms that enter into contracts for collection services
pursuant to this paragraph are subject to the Privacy Act of 1974, as
amended, 5 U.S.C. 552a, federal and state laws and regulations
pertaining to debt collection practices, including the Fair Debt
Collection Practices Act, 15 U.S.C. 1692. Debt collection contractors
shall be required to account strictly for all amounts collected and must
agree to provide any data contained in their files relating to 4 CFR
105.2(a) (1), (2) and (3). Contracts for commercial collection services
must comply with 32 CFR part 90.
(viii) Referrals to consumer reporting agencies. The Director,
OCHAMPUS, or a designee, is authorized to provide for the reporting of
delinquent debts to consumer reporting agencies. Delinquent debts are
those which are not paid or for which satisfactory payment arrangements
are not made by the due date specified in the initial notification of
indebtedness, or those for which the debtor has entered into a written
payment agreement and installment payments are past due 30 days or
longer. These referrals may be made only after publication of a
``routine use'' for the disclosures involved as required by the Privacy
Act of 1974, as amended, 5 U.S.C. 552a. Procedures developed for such
referrals must also insure that an accounting of the disclosures is kept
which is available to the debtor; that the consumer reporting agencies
are provided with corrections and annotations of disagreements by the
debtor; and that reasonable efforts are made to assure that the
information to be reported is accurate, complete, timely and relevant.
When requested by a consumer reporting agency, verification of
information disclosed will promptly be provided. Once a claim has been
reviewed and determined to be valid, a complete explanation of the claim
will be given the debtor. When the claim is overdue, the individual will
be notified in writing that payment is overdue; that within 60 days,
disclosure of the claim shall be made to a consumer reporting agency
unless satisfactory payment arrangements are made or unless the debtor
requests an administrative review and demonstrates some basis on which
the debt is legitimately disputed; and of the specific information to be
disclosed to the consumer reporting agency. The information to be
disclosed to the consumer reporting agency will be limited to
information necessary to establish the identity of the debtor, including
name, address and taxpayer identification number; the amount, status and
history of the claim; and the agency or program under which the claim
arose. Reasonable action will be taken to locate an individual for whom
a current address is not available.
(ix) Use and disclosure of mailing addresses. In attempting to
locate a debtor in the collection of a debt under this section, the
Director, OCHAMPUS, or a designee, may send a written request to the
Secretary of the Treasury, or a designee, for current address
information from records of the Internal Revenue Service. These requests
will comply with the provisions of 26 U.S.C. 6103(p)(4) and applicable
regulations of the Internal Revenue Service. Disclosure of a mailing
address so obtained may be made pursuant to 4 CFR 102.18(b) and 31
U.S.C. 3711.
(g) Compromise, waiver, suspension or termination of collection
actions arising under the Federal Claims Collection Act. (1) Basic
considerations. Federal claims against the debtor and in favor of the
United States arising out of the administration of the CHAMPUS may be
compromised or collection action taken thereon may be suspended or
terminated in compliance with the Federal Claims Collection Act, 31
U.S.C. 3711(a)(2) as implemented by the Federal Claims Collection
Standards, 4 CFR parts 101 through 105.
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(2) Authority. CHAMPUS fiscal intermediaries are not authorized to
compromise or to suspend or terminate collection action on federal
CHAMPUS claims. Only the Director, OCHAMPUS, or a designee, and
Uniformed Service claims officers acting under the provisions of their
own regulations, are so authorized.
(3) Waiver of collection of erroneous payments due from certain
persons unaware of loss of CHAMPUS eligibility.
(i) The Director, OCHAMPUS may waive collection of payments
otherwise due from certain persons as a result of health benefits
received under this part after the termination of the person's
eligibility for such benefits. Waiver may be granted if collection of
such payments would be against equity and good conscience and not in the
best interest of the United States. These criteria are met by a finding
that there is no indication of fraud, misrepresentation, fault, or lack
of good faith on the part of the person who received the erroneous
payment or any other person having an interest in obtaining such waiver.
(ii) Persons eligible for waiver. The following persons are eligible
for waiver:
(A) A person who:
(1) Is entitled to Medicare Part A by reason of disability or end
stage renal disease;
(2) In the absence of such entitlement, would have been eligible for
CHAMPUS under 10 U.S.C. 1086; and
(3) At the time of the receipt of such benefits, was under age 65.
(B) Any participating provider of care who received direct payment
for care