[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Proposed Rules]
[Pages 2085-2095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-660]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS); Establishment of an Appeals Process for TRICARE Claimcheck
Denials
AGENCY: Office of the Secretary, DoD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule implements section 714 of the National
Defense Authorization Act for Fiscal Year 1999 which requires the
establishment of an appeals process for denials by TRICARE Claimcheck
(TCC) or any similar software system. This proposed rule enhances the
current appeals process by adding an additional level of appeal
conducted at the TRICARE Management Activity (TMA) and by codifying the
entire process in this part.
DATES: Public comments must be received by March 13, 2000.
ADDRESSES: Forward comments to: TRICARE Management Activity (TMA),
Medical Benefits and Reimbursement Systems, 16401 East Centretech
Parkway, Aurora, CO 80011-9043.
FOR FURTHER INFORMATION CONTACT: Donald F. Wagner, Office of Appeals
and Hearings, TMA, (303) 676-3411.
SUPPLEMENTARY INFORMATION: On December 30, 1998 (63 FR 71915), the
Department of Defense published a notice in the Federal Register. That
notice provides additional detailed information regarding TMA's use of
TCC.
TMA, first used TCC, the TMA version of a commercial claims
auditing software, in May 1996. Use of the TCC software has been
subsequently linked to the start of the TRICARE regional at-risk
managed care support contracts. TMA has customized TCC to conform to
specific statutory and regulatory requirements for the TRICARE program.
TRICARE Claimcheck is a fully automated program that contains
specific auditing logic designed to ensure appropriate coding on
professional claims and eliminate overpayments on those claims. TRICARE
Claimcheck audits for: unbundling of services (fragmented billing of
services when one code is appropriate), incidental procedures, mutually
exclusive procedures, assistant surgeon codes, duplicate claims
submission, unlisted procedures, age/gender conflicts, medical visits
associated with pre- and post-operative care, and cosmetic procedures.
The auditing logic resulting in a TCC denial on a TRICARE claim
currently can be administratively reviewed by the TRICARE Managed Care
Support Contractor (MCSC), but the specific dollar amount of an
allowance (e.g., the CHAMPUS Maximum Allowable Charge) is not formally
appealable under TRICARE Claimcheck appeals or the appeals procedures
established in 32 CFR 199.10. A determination by the MCSC that allows
additional payment amounts results in an adjustment of the claim by the
contractor with no further action required by the beneficiary or
provider. No other appeal is currently allowed.
Section 714 of the National Defense Authorization Act for Fiscal
Year 1999 (P.L. 105-261) required the establishment of an appeals
process for denials by TCC or any similar software system. This
proposed rule establishes a two-level appeals process for TCC denials
and codifies it under the formal appeals procedures established in 32
[[Page 2086]]
CFR 199.10. TRICARE Managed Care Support Contractor conducts the first-
level appeal. The second-level appeal is performed within the TMA.
We have also reinserted paragraphs (c)(1) through (c)(5) in section
199.10 which were inadvertently omitted in a previous publication of 32
CFR 199.10 and included other minor corrections to sections 199.10 and
199.15.
Regulatory Procedures
Executive Order 12866 requires that a comprehensive regulatory
impact analysis be performed on any economically significant regulatory
action, defined as one which would result in an annual effect of $100
million or more on the national economy or which would have other
substantial impacts.
The Regulatory Flexibility Act (RFA) requires that each Federal
agency prepare, and make available for public comment, a regulatory
flexibility analysis when the agency issues a regulation which would
have a significant impact on a substantial number of small entities.
This is not a significant regulatory action under EO 12866 and has
been reviewed by the Office of Management and Budget. In addition, we
certify that this proposed rule will not significantly affect a
substantial number of small entities.
Paperwork Reduction Act
This rule, as written, imposes no burden as defined by the
Paperwork Reduction Act of 1995. If however, any program implemented
under this rule causes such a burden to be imposed, approval thereof
will be sought from the Office of Management and Budget in accordance
with the Act, prior to implementation.
List of Subjects in 32 CFR Part 199
Claims, Handicapped, Health insurance, and Military personnel.
Accordingly, 32 CFR part 199 is proposed to be amended as follows:
PART 199--[AMENDED]
1. The authority citation for part 199 continues to read as
follows:
Authority: 5 U.S.C. 301; 10 U.S.C. Chapter 55.
2. Section 199.2(b) is proposed to be amended by revising the
definition of Party to the initial determination and by adding a new
definition of TRICARE Claimcheck and placing both definitions in
alphabetical order as follows:
Sec. 199.2 Definitions.
* * * * *
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. (Under TRICARE Claimcheck or other similar software, a
party to the initial determination also includes a non-participating
provider.) 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.
TRICARE Claimcheck. TRICARE Claimcheck is the TRICARE Management
Activity version of a commercial claims auditing software designed to
ensure appropriate coding on professional claims and eliminate
overpayments on those claims.
* * * * *
3. Section 199.10 is proposed to be revised to read as follows:
Sec. 199.10 Appeal and hearing procedures.
(a) General. 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. Paragraphs (a) through (e) of this
section set forth the policies and procedures for appealing decisions
made by OCHAMPUS 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. Paragraph (f) of this section describes the appeal process for
TRICARE Claimscheck or other similar software denials. Supplemental
appeal procedures relating to determinations made under the quality and
utilization review peer review organization program are contained in
Sec. 199.15.
(1) Initial determination. (i) Notice of initial determination and
right to appeal. (A) OCHAMPUS 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 shall notify a provider of an initial
determination on a claim only if the provider participated in the claim
or the initial determination resulted from the application of TRICARE
Claimcheck or other similar software. (See Sec. 199.7)
(C) CHAMPUS peer review organizations shall notify providers and
CHAMPUS contractors of a denial determination on a claim.
(D) Notice of an initial determination on a claim processed by a
CHAMPUS contractor 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 decision to disqualify or exclude a
provider as an authorized provider under CHAMPUS shall state the
reason(s) 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. The initial determination is
final unless appealed in accordance with this section, or unless the
initial determination is reopened by OCHAMPUS, the CHAMPUS contractor,
or the CHAMPUS peer review organization.
(2) Participation in an appeal. Participation in an appeal is
limited to any party to the initial determination, including OCHAMPUS,
and authorized representatives of the parties. Any party to the initial
determination, except OCHAMPUS, may appeal an adverse determination.
The appealing party is the party to the initial determination who
actually files the appeal, whether personally or by representative.
(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
[[Page 2087]]
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.
(C) A sponsor or parent of a beneficiary under 18 years of age or
guardian of an incompetent beneficiary is not a party to the initial
determination and may not serve as the appealing party.
(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 custodial 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
determination, 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's appointed representative. The sponsor, in this example,
could not pursue the request for hearing without being appointed by the
beneficiary as the beneficiary's representative.
(A) The representative shall have the same authority as the
appealing party and notice given to the representative shall constitute
notice to the appealing party.
(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. 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 hearing 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 of 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 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.
(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 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
[[Page 2088]]
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 of 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
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 in the following:
(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 of
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 Sec. 199.8.
(ii) The amount in 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(s) 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 combined claims has had a reconsideration
decision issued by a CHAMPUS contractor or a CHAMPUS peer review
organization.
Note to paragraph (a)(7): 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, a CHAMPUS contractor, or a CHAMPUS peer review organization.
(i) Appeal levels for initial determination made by CHAMPUS
contractor or CHAMPUS peer review organization.
(A) Reconsideration by CHAMPUS contractor or CHAMPUS peer review
organization.
(B) Formal review by OCHAMPUS (except for CHAMPUS peer review
organization reconsiderations and reconsideration determinations issued
by CHAMPUS contractors that are subject to Sec. 199.15).
(C) Hearing.
(ii) Appeal levels for initial determination made by OCHAMPUS.
(A) Formal review by OCHAMPUS except 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 Sec. 199.9(h)(1)(iv)(A) or Sec. 199.9(h)(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.
(10) Dismissal of request for reconsideration, formal review, or
hearing. (i) By application of the appealing party. A request for
reconsideration, formal review, or 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,
Office of Appeals and Hearings, OCHAMPUS or designee, or the hearing
officer in hearing cases. When dismissal is requested, the previous
determination in the case shall be deemed final, unless the dismissal
is vacated in accordance with paragraph (a)(10)(v) of this section.
(ii) By stipulation of the parties. A request for a
reconsideration, formal review, or hearing may be dismissed by the
Director, OCHAMPUS, or a designee, at any time before the mailing of
notice of the reconsideration determination, formal review
determination, or hearing final decision under a stipulation agreement
between the appealing party and the Director, OCHAMPUS, or designee.
When a dismissal is entered under a stipulation, the previous
determination shall be deemed final, unless the dismissal is vacated in
accordance with paragraph (a)(10)(v) of this section.
(iii) By abandonment. The Director, OCHAMPUS, or a designee, may
dismiss a request for reconsideration, formal review, or 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)(10)(xii), if neither the appealing party
nor an appointed representative appears at the time and placed 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 the hearing that an appearance could not be made.
(B) An appealing party shall be deemed to have abandoned a request
for reconsideration, formal review, or hearing if, before mailing of
the notice of the reconsideration determination or formal review
determination or before assignment of the case to the hearing officer,
the Director, OCHAMPUS, or a designee, 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
[[Page 2089]]
reconsideration, formal review, or 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 the Director, OCHAMPUS, or a designee, or the
hearing officer for consideration in the appeal.
(D) If the Director, OCHAMPUS, or a designee, dismisses the request
for reconsideration, formal review, or hearing because of abandonment,
the previous determination in the case shall be deemed to be final,
unless the dismissal is vacated in accordance with paragraph (a)(10)(v)
of this section.
(iv) For cause. If the Director, OCHAMPUS, or a designee, may
dismiss for cause a request for reconsideration, formal review, or
hearing either entirely or as to any stated issue. If the Director,
OCHAMPUS, or a designee, dismisses a reconsideration, formal review, or
hearing request for cause, the previous determination in the case shall
be deemed to be final, unless the dismissal is vacated in accordance
with paragraph (a)(10)(v) of this section. A dismissal for cause may be
issued under any of the following circumstances:
(A) When the appealing party requesting the reconsideration, formal
review, or 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
reconsideration, formal review, or hearing.
(B) When the appealing party who filed the reconsideration, formal
review, or 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
previous determination.
(C) When the issue is not appealable (see Sec. 199.10(a)(6)).
(D) When the amount in dispute is less than $50 in a formal review
or less than $300 in a hearing.
(E) When all appealable issues have been resolved in favor of the
appealing party.
(v) Vacation of dismissal. Dismissial of a request for
reconsideration, formal review, or 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 reconsideration, formal review, or hearing.
(b) Reconsideration. Any party to the initial determination made by
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 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., 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. For the purposes
of CHAMPUS, a postmark is a cancellation mark issued by the United
States Postal Service. If the request does not have a postmark, it
shall be deemed filed on the date received by 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 CHAMPUS contractor
or the CHAMPUS peer review organization staff who was not involved in
making the initial determination and is a thorough and independent
review 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 the CHAMPUS
contractor or the CHAMPUS peer review organization may obtain.
(3) Timeliness of reconsideration determination. The CHAMPUS
contractor or the 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 the CHAMPUS contractor
or the CHAMPUS peer review organization.
(4) Notice of reconsideration determination. The CHAMPUS contractor
or the CHAMPUS peer review organization shall issue a written notice of
the reconsideration 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) Payment and liability under Sec. 199.4(h), if applicable.
(v) Whether the reconsideration determination upholds the initial
determination or reverses it, in whole or in part, and the rationale
for the action.
(vi) 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 in $50 or more.
(5) Effect of reconsideration determination. The reconsideration
determination is final if the following exits:
(i) The amount in dispute is less than $50.
(ii) Appeal rights have been offered, but a request for formal
review (or hearing in a case subject to Sec. 199.15) is not postmarked
or 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(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
[[Page 2090]]
suspension of claims processing. A beneficiary (or an authorized
representative of a beneficiary), but not a provider (except as
provided in Sec. 199.15), may request a hearing, but not a formal
review, of a reconsideration determination made by a CHAMPUS peer
review organization.
(5) Requesting a formal review. (i) Written request required. The
request must be in writing, shall state the specific matter in dispute,
shall include copies of the written determination (notice of
reconsideration determination or OCHAMPUS initial determination) being
appealed, and shall include any additional information or documents not
submitted previously.
(ii) Where to file. The request shall be submitted to the Chief,
Office of Appeals and Hearings, TRICARE Management Activity, 16401 East
Centretech Parkway, Aurora, Colorado 80011-9043.
(iii) Allowed time to file. The request shall be mailed within 60
days after the date of the notice of the reconsideration determination
or OCHAMPUS initial determination being appealed.
(iv) Official filing date. A request for a formal review shall be
deemed filed on the date it is mailed and postmarked. For the purposes
of CHAMPUS, a postmark is a cancellation mark issued by the United
States Postal Service. If the request does not have a postmark, it
shall be deemed filed on the date received by OCHAMPUS.
(6) The formal review process. The purpose of the formal review is
to determine whether the initial determination or reconsideration
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, reconsideration, or formal
review decision involving a provider request for approval as an
authorized CHAMPUS provider. The formal review is performed by the
Chief, Office of Appeals and Hearings, OCHAMPUS, or a designee, and is
a thorough review of the case. The formal review determination shall be
based on the information upon which the initial determination and/or
reconsideration determination was based, and any additional information
the appealing party may submit or OCHAMPUS may obtain.
(7) Timeliness of formal review determination. The Chief, Office of
Appeals and Hearings, OCHAMPUS, or a designee, normally shall issue the
formal review determination no later than 90 days from the date of
receipt of the request for formal review by the OCHAMPUS.
(8) Notice of formal review determination. The Chief, Office of
Appeals and Hearings, OCHAMPUS, or a designee, shall issue a written
notice of the formal review determination to the appealing party at his
or her last known address. The notice of the formal review
determination must contain the following elements:
(i) A statement of the issue or issues 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 formal review upholds the prior determination or
determinations or reverses the prior determination or determinations in
whole or in part and the rationale for the action.
(v) A statement of the right to request a hearing in any case when
the formal review determination is less than fully favorable, the issue
is appealable,and the amount in dispute is $300 or more.
(9) Effect of formal review determinations. The formal review
determination is final if one or more of the following exist:
(i) The issue is not appealable. (See paragraph (a)(6) of this
section.)
(ii) The amount in dispute is less than $300. (See paragraph (a)(7)
of this section.)
(iii) Appeal rights have been offered but a request for hearing is
not postmarked or received by OCHAMPUS within 60 days of the date of
the notice of the formal review determination.
(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)(9), of this section; or the initial
determination involves the sanctioning of a provider under Sec. 199.9
and involves an appealable issue; or the reconsideration determination
is issued by a CHAMPUS peer review organization under Sec. 199.15 and
is not final under paragraph (b)(5) of this section.
(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 initial determination, reconsideration 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,
Office of Appeals and Hearings, TRICARE Management Activity, 16401 East
Centretech Parkway, Aurora, Colorado 80011-9043.
(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. For the purposes of
CHAMPUS, a postmark is a cancellation mark issued by the United States
Postal Service. 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 involving a provider
sanction, generally shall be conducted as a nonadversial,
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
[[Page 2091]]
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 shall
voluntarily disqualify himself or herself and withdraw from any
proceeding in which the hearing officer cannot given fair or impartial
hearing, or in which there is a conflict of interest. A party to the
hearing may 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 shall be immediately 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 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
issued 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) 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 document,
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 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.
(10) 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 as to those witnesses employed by
OCHAMPUS at the time of the hearing, and records in
[[Page 2092]]
the possession of OCHAMPUS, a party to a hearing shall be responsible
for the cost of fee associated with producing witnesses and other
evidence in the party's own behalf, and 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 to 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 received.
(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 repetitions shall be excluded.
(v) Relevant evidence. Any relevant evidence shall be admitted,
unless unduly repetitious, 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 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 or
affirmation on 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
procedure may be invoked:
(A) Continue hearing. The hearing may be continued to a later date
in accordance with Sec. paragraph (d)(10)(ix) of this section.
(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 prior to the issuance of the
recommended decision by the hearing officer. 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,
upon request, 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. A party may
waive his or her right to appear at a hearing 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
conduct a formal hearing. A waiver of the right to appear must be in
writing and filed with the hearing officer or the Chief, Office of
Appeals and Hearings, OCHAMPUS. Such waiver may be withdrawn by the
party by written notice received by the hearing officer or Chief,
Office of 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.
(11) 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 a 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
[[Page 2093]]
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, together with a copy of the
recommended decision, shall be sent by certified mail to the appealing
party or parties. A final agency decision under paragraph (e)(1)(i) 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, 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 the final decision, together with a copy of
the recommended 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.
(f) TRICARE Claimcheck or other similar software. (1) General. This
sets forth the policies and procedures for appealing adverse
determinations issued as a result of the application of TRICARE
Claimcheck or other similar software. The TRICARE Claimcheck or other
similar software appeal procedures apply to denial or reduction in
payment based on approved reimbursement methods; whereas, denials
arising from TRICARE Claimcheck or other similar software relating to
benefit determinations are subject to the appeal process in paragraphs
(a) through (e) of this section. Non-participating providers may appeal
only through the TRICARE Claimcheck or other similar software appeal
procedures described in this paragraph (f). The levels of appeal under
the TRICARE Claimcheck or other similar software appeal procedures are:
First-level appeal, issued by the CHAMPUS contractor; and second-level
appeal, issued by OCHAMPUS. Provisions in paragraph (a)(10) of this
section that apply to the dismissal of reconsideration and formal
review determinations also apply to dismissal of first and second level
appeals.
(i) Initial determination. (A) Notice of initial determination and
right to appeal. (1) 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
other parent, guardian, or other representative, under established
CHAMPUS procedures, constitutes notice to the beneficiary.
(2) Notice of an initial determination on a claim processed by a
CHAMPUS contractor will be made on a CHAMPUS Explanation of Benefits
(CEOB) form.
(3) Each CEOB shall state the reason for the determination.
(4) In any case when the initial determination is adverse to the
beneficiary or provider, the CEOB shall include a statement of the
beneficiary's or provider's right to appeal the determination. The
procedure for filing a first-level appeal shall also be explained.
(B) Effect of initial determination. The initial determination is
final unless appealed in accordance with this paragraph (f) or unless
the initial determination is reopened by OCHAMPUS or the CHAMPUS
contractor.
(ii) Participation in an appeal. Participation in an appeal is
limited to any party to the initial determination, including OCHAMPUS,
and authorized representatives of the parties. Any party to the initial
determination, except OCHAMPUS, may appeal an adverse determination.
(A) Parties to the initial determination. For purposes of this
appeal procedure, the following are not parties to an initial
determination and are not entitled to administrative review under this
paragraph (f).
(1) A sponsor or parent of a beneficiary under 18 years of age or
guardian of an incompetent beneficiary is not a party to the initial
determination and may not serve as the appealing party.
(2) 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.
(B) 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 custodial 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 first-level appeal, 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 first-level appeal
determination, the sponsor requests a second-level appeal; however, if
at the time of the request for a second-level appeal, the beneficiary
is 18 years of age or older, the request must either be by the
beneficiary or the beneficiary's appointed representative. The sponsor,
in this example, could not pursue the request for a second-level appeal
without being appointed by the beneficiary as the beneficiary's
representative.
(1) The representative shall have the same authority as the
appealing party and notice given to the representative shall constitute
notice to the appealing party.
(2) 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.
(iii) 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. If a presumption exists under the provisions of this
part or information
[[Page 2094]]
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.
(iv) Evidence in appeal cases. Any relevant evidence may be sued in
the TRICARE Claimcheck or other similar software appeal 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 improper the admission of
such evidence over objection in civil or criminal courts.
(v) Late filing. If a request for a first-level or second-level
appeal 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 the 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 requiring
shall be final.
(vi) Appealable issue. An appealable issue is required in order for
an adverse determination to be appealed under the provisions of this
paragraph (f).
(vii) Amount in dispute. An amount in dispute is required for an
adverse determination to be appealed under the provisions of this
paragraph (f). 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 included but are not limited to:
(A) The beneficiary's CHAMPUS deductible and cost-share amounts.
(B) Amounts that the CHAMPUS beneficiary, or parent, guardian, or
other responsible person has no legal obligation to pay.
(C) Amounts excluded under Sec. 199.8.
(viii) Scope of review. The review of appeals under this paragraph
(f) may identify issues other than TRICARE Claimcheck or other similar
software issues, which may be considered under other provisions of this
part.
(2) TRICARE Claimcheck or other similar software first-level
appeal. Any party to the initial determination made by the CHAMPUS
contractor, may request a first-level appeal.
(i) Requesting a first-level appeal. (A) Written request required.
The request must be in writing, shall state the specific matter in
dispute, and shall include a copy of the CEOB issued by the CHAMPUS
contractor.
(B) Where to file. The request shall be submitted to the CHAMPUS
contractor that issued the CEOB or any other CHAMPUS contractor
designated in the CEBO.
(C) Allowed time to file. The request must be mailed within 90 days
after the date of notice on the CEOB.
(D) Official filing date. A request for a first-level appeal shall
be deemed filed on the date it is mailed and postmarked. For the
purposes of CHAMPUS, a postmark is a cancellation mark issued by the
United States Postal Service. If the request does not have a postmark,
it shall be deemed filed on the date received by the CHAMPUS
contractor.
(ii) The first-level appeal process. The purpose of the first-level
appeal is to determine whether the initial determination correctly
identified improper claims. The first-level appeal review is performed
by a member of the CHAMPUS contractor who was not involved in making
the initial determination and is a thorough and independent review of
the case. The first-level appeal is based on the information submitted
that led to the initial determination, plus any additional information
that the appealing party may submit or the CHAMPUS contractor may
obtain.
(iii) Timeliness of first-level appeal determination. The CHAMPUS
contractor normally shall issue its first-level appeal determination no
later than 60 days from the date of receipt of the request for first-
level appeal.
(iv) Notice of first-level appeal determination. The CHAMPUS
contractor shall issue a written notice of the first-level appeal
determination to the appealing party at his or her last known address.
The notice of the first-level appeal determination must contain the
following elements:
(A) A statement of the issues or issue under appeal.
(B) The provisions of law, regulation, policies and guidelines that
apply to the issue or issues under appeal.
(C) A discussion of the original and additional information that is
relevant to the issue or issues under appeal.
(D) Whether the first-level appeal determination upholds the
initial determination or reverses it, in whole or in part, and the
rationale for the action.
(E) A statement of the right to appeal further in any case when the
first-level appeal determination is less than fully favorable to the
appealing party.
(v) Effect of first-level appeal determination. The first-level
appeal determination is final if appeal rights have been offered, but a
request for a second-level appeal is not postmarked or received by
OCHAMPUS within 60 days of the date of the notice of the first-level
appeal determination.
(3) TRICARE Claimcheck or other similar software second-level
appeal. Except as explained in this paragraph (f), any party to a
first-level appeal determination made by the CHAMPUS contractor may
request a second-level appeal by OCHAMPUS if the party is dissatisfied
with the first-level appeal determination unless the first-level appeal
determination is final because of the reasons described in paragraph
(f)(2)(v) of this section.
(i) Requesting a second-level appeal. (A) Written request required.
The request must be in writing, shall state the specific mater in
dispute, shall include a copy of the notice of first-level appeal
determination being appealed, and shall include any additional
information or documents not submitted previously.
(b) Where to file. The request shall be submitted to the Chief,
Office of Appeals and Hearings, TRICARE Management Activity, 16401 E.
Centertech Parkway, Aurora, CO 80011-9043.
(C) Allowed time to file. The request shall be mailed within 60
days after the date of the notice of the first-level appeal
determination.
(d) Official filing date. A request for a second-level appeal shall
be deemed filed on the date it is mailed and postmarked. For the
purposes of CHAMPUS, a postmark is a cancellation mark issued by the
Untied States Postal Service. If the request does not have a postmark,
it shall be deemed filed on the date received by OCHAMPUS.
(ii) The second-level appeal process. The purpose of the second-
level appeal is to determine whether the initial determination and
first-level appeal determination correctly identified improper claims.
The second-level appeal is performed by the Chief, Office of Appeals
and Hearings, OCHAMPUS, or a designee, and is a thorough review of the
case. The second-level appeal determination is based on the information
upon which the initial determination and the first-level appeal
[[Page 2095]]
determination were based, and any additional information the appealing
party may submit or OCHAMPUS may obtain.
(iii) Timeliness of second-level appeal determination. The Chief,
Office of Appeals and Hearings, OCHAMPUS or a designee, normally shall
issue a written notice of the second-level appeal determination no
later than 90 days from the date of receipt of the request for second-
level appeal by OCHAMPUS.
(iv) Notice of second-level appeal determination. The Chief, Office
of Appeals and Hearings, OCHAMPUS or designee, shall issue a written
notice of the second-level appeal determination to the appealing party
at his or her last known address. The notice of the second-level appeal
determination must contain the following elements:
(A) A statement of the issue or issues under appeal.
(B) The provisions of law, regulation, policies and guidelines that
apply to the issue or issues under appeal.
(C) A discussion of the original and additional information that is
relevant to the issue or issues under appeal.
(D) Whether the second-level appeal determination upholds the
first-level appeal determination or reverses the first-level appeal
determination in whole or in part and the rationale for the action.
(v) Effect of second-level appeal determination. The second-level
appeal determination is the final action of the TRICARE Claimcheck or
other similar software administrative appeal process.
4. Section 199.15 is proposed to be amended by revising paragraphs
(f)(3)(ii)(A), (h), (i)(1), (i)(2), and (i)(4) as follows:
Sec. 199.15 Quality and utilization review peer review organization
program.
* * * * *
(f) * * *
(3) * * *
(ii) * * *
(A) A reconsideration determination that would be final in a cases
involving sole-function PROs under paragraph (i)(2) of this section
will not be final in cases involving multi-function PROs. In addition,
a reconsideration determination that would be appealed to OCHAMPUS in
cases involving sole-function PROs under paragraph (i)(1) of this
section will not be appealed to OCHAMPUS in cases involving multi-
function PROs. Rather, in such cases, an opportunity for a second
reconsideration shall be provided. The second reconsideration will be
provided by OCHAMPUS or another contractor independent of the multi-
function PRO that performed the review. The second reconsideration may
not be further appealed by the provider except as provided in paragraph
(i)(3) of this section.
* * * * *
(h) Procedures regarding reconsiderations. The CHAMPUS PROs shall
establish and follow procedures for reconsiderations that are
substantively the same or comparable to the procedures applicable to
reconsiderations under Medicare pursuant to 42 CFR 473.15 to 473.34,
except that the time limit for requesting reconsideration (see 42 CFR
473.20(a)(1)) shall be 90 days. A PRO reconsideration determination is
final and binding upon all parties to the reconsideration except to the
extent of any further appeal pursuant to paragraph (i) of this section.
(i) * * *
(1) Beneficiaries may appeal a PRO reconsideration determination to
OCHAMPUS and obtain a hearing on such appeal to the extent allowed and
under the procedures set forth in Sec. 199.10(d).
(2) Except as provided in paragraph (i)(3) of this section, a PRO
reconsideration determination may not be further appealed by a
provider.
* * * * *
(4) For purposes of the hearing process, a PRO reconsidertion
determination shall be considered as the procedural equivalent of a
formal review determination under Sec. 199.10, unless revised at the
initiative of the Director, OCHAMPUS, prior to a hearing on the appeal,
in which case the revised determination shall be considered as the
procedural equivalent of a formal review determination under
Sec. 199.10.
* * * * *
Dated: January 4, 2000.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer Department of Defense.
[FR Doc. 00-660 Filed 1-12-00; 8:45 am]
BILLING CODE 5001-10-M
