02-2173. Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); Voluntary Disenrollment From the TRICARE Retiree Dental Program (TRDP)

AGENCY:

Office of the Secretary, DoD.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule implements section 726 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, which amended 10 U.S.C. 1076c to allow for voluntary disenrollment from the TRICARE Retiree Dental Program in certain circumstances.

DATES:

Comments must be received on or before April 1, 2002.

ADDRESSES:

TRICARE Management Activity (TMA), Special Contracts and Operations Office, 16401 East Centretech Parkway, Aurora, CO 80011-9043.

FOR FURTHER INFORMATION CONTACT:

Linda Winter, Special Contracts and Operations Office, TMA, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

The TRICARE Retiree Dental Program (TRDP), a voluntary dental insurance plan completely funded by enrollees' premiums, was implemented in 1998 based on the authority of 10 U.S.C. 1076c. The enabling legislation specifies that the Secretary of Defense shall prescribe a minimum required period for enrollment and allows enrollment to be terminated only for loss of eligibility and failure to pay premiums. There was no provision for enrollees to voluntarily terminate their enrollment before the enrollment commitment was fulfilled. Accordingly, the implementing regulation, 32 CFR 199.22, allows termination of enrollment during the required enrollment period only for the ineligibility and premium default reasons.

In section 726 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, Congress responded to concerns that the enabling legislation was too restrictive by not allowing enrollees to voluntarily terminate their enrollment before the completion of their enrollment commitment when continued enrollment would be of no benefit to them. Section 726 amended 10 U.S.C. 1076c to direct the Secretary of Defense to allow an enrollee to disenroll at the beginning of the prescribed enrollment period and to permit disenrollment thereafter under limited circumstances providing that the fiscal integrity of the dental program is not jeopardized. The amendment specifies the inclusion of the following circumstances: assignment of Federal employment outside the dental plan jurisdiction that prevents utilization of the plan's benefits, a serious medical condition that prevents utilization of the plan's benefits, and severe financial hardship. In addition, the amendment requires a process for appealing adverse decisions to OCHAMPUS.

II. Provisions to the Proposed Rule.

This proposed rule expands the voluntary termination provision originally published in an interim final rule in the Federal Register on August 14, 2000 (65 FR 49491). Under the statutory mandate for voluntary enrollment, that provision implemented a grace period in which a new enrollee could voluntarily disenroll during the first thirty days following the beginning date of coverage on the condition that no benefits had been used and effectively nullify the enrollment. It also designated the TRDP contractor as the authority for grace period disenrollment decisions.

This proposed rule establishes another opportunity for voluntary disenrollment that is based on the extenuating circumstances specified in the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001. The TRDP contractor continues as the authority for voluntary disenrollment decisions but only at the initial level. The rule establishes a process for enrollees to appeal to OCHAMPUS all adverse decisions made by the contractor in response to requests for voluntary disenrollment.

In addition, the proposed rule makes the following administrative changes: Corrects a typographical error in a reference to the Assistant Secretary of Defense (Health Affairs); replaces references to the TRICARE Active Duty Dependents Dental Plan with the name of its successor, the TRICARE Dental Program; removes the forwarding of grievances to OCHAMPUS for final review; and replaces the reference to the appeals process for the TRICARE Dental Program at section 199.13(h) with a reference to the OCHAMPUS appeals process as section 199.10 as governing for the TRDP.

III. Rulemaking Procedures

Executive Order 12866 requires certain regulatory assessments for any “significant regulatory action,” defined as one that would result in an annual effect on the economy of $100 million or more, or have other substantial impacts. The Regulatory Flexibility Act requires that each federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation that would have a significant impact on a substantial number of small entities. This rule has been designated as significant and has been reviewed by the Office of Management and Budget as required under the provisions of E.O. 12866.

Furthermore, pursuant to section 605 of the Regulatory Flexibility Act (5 U.S.C. 605), we hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects only the manner in which enrollment in the TRICARE Retiree Dental Program is administered. This rule will impact only enrollees in that program and the contractor responsible for administering the program.

This rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

List of Subjects in 32 CFR Part 199

• Claims
• Dental health
• Health insurance
• Individuals with disabilities
• Military personnel

Accordingly, 32 CFR 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 199.22 is proposed to be amended by revising paragraphs (b)(4) and (c), the first two sentences of paragraph (d)(1)(iv) introductory text, and paragraphs (d)(1)(v), (d)(4)(ii), (d)(5)(ii), (e)(2) and (k) to read as follows.

§ 199.22

TRICARE Retiree Dental Program (TRDP).

* * * * *

(b) * * *

(4) Except as otherwise provided in this section or by the Assistant Secretary of Defense (Health Affairs) or designee, the TRDP is administered in a manner similar to the TRICARE Dental Program under § 199.13.

* * * * *

(c) Definitions. Except as may be specifically provided in this section, to the extent terms defined in § 199.2 and 199.13(b) are relevant to the administration of the TRICARE Retiree Dental Program, the definitions contained in §§ 199.2 and 199.13(b) shall apply to the TRDP as they do to CHAMPUS and the TRICARE Dental Program.

(d) * * *

(1) * * *

(iv) Eligible dependents of a member described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section when the member is not enrolled in the program and the member meets at least one of the conditions in paragraphs (d)(1)(iv)(A) through (C) of this section. Already enrolled members must satisfy any remaining enrollment commitment prior to enrollment of dependents becoming effective under this paragraph, at which time the dependent-only enrollment will continue on a voluntary basis as specified in paragraph (d)(4) of this section. * * *

(v) The unremarried surviving spouse and eligible child dependents of a deceased member who died while in status described in paragraphs (d)(1)(i) or (d)(1)(ii) of this section; the unremarried surviving spouse and eligible child dependents who receive a surviving spouse annuity; or the unremarried surviving spouse and eligible child dependents of a deceased member who died while on active duty for a period of more than 30 days and whose eligible dependents are not eligible or no longer eligible for the TRICARE Dental Program.

* * * * *

(4) * * *

(ii) Enrollment period for enhanced benefits. The initial enrollment period for enhanced benefit coverage described in paragraph (f)(2) of this section shall be established by the Director, OCHAMPUS, or designee, when such coverage is offered, to be a period of not less than 12 months and not more than 24 months. The initial enrollment period shall be followed by renewal periods of up to 12 months as long as the enrollee chooses to continue enrollment and remains eligible. An enrollee who chooses not to continue enrollment upon completion of an enrollment period may re-enroll at any time. However, an enrollee who is disenrolled from the TRDP before completion of an initial or subsequent enrollment period for reason other than those in paragraphs (d)(5)(ii)(A) and (B) of this section shall incur a lockout period of 12 months before re-enrollment can occur. Former enrollees who re-enroll following a lockout period or following a period of disenrollment after completion of an enrollment period must comply with all provisions that apply to new enrollees, including a new enrollment commitment.

(5) * * *

(ii) Voluntary termination. All enrollee requests for termination of TRDP coverage before the completion of an enrollment period shall be submitted to the TRDP contractor for determination of whether the enrollee qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or (B) of this section.

(A) Enrollment grace period. Regardless of the reason, TRDP coverage shall be cancelled, or otherwise terminated, upon request from an enrollee if the request is received by the TRDP contractor within thirty (30) calendar days following the enrollment effective date and there has been no use of TRDP benefits under the enrollment during that period. If such is the case, the enrollment is voided and all premium payments are refunded. However, use of benefits during this 30-day enrollment grace period constitutes acceptance by the enrollee of the enrollment and the enrollment period commitment. In this case, a request for termination of enrollment under paragraph (d)(5)(ii)(A) of this section will not be honored, and premiums will not be refunded.

(B) Extenuating circumstances. Under limited circumstances, TRDP enrollees shall be disenrolled by the contractor before the completion of an enrollment period commitment upon request by an enrollee if the enrollee submits written, factual documentation that independently verifies that one of the following extenuating circumstances occurred during the enrollment period. In general, the circumstances must be unforeseen and long-term and must have originated after the effective date of TRDP coverage.

(1) The enrollee is a Federal employee who has received an assignment to a location outside the jurisdiction of the TRDP that prevents utilization of TRDP benefits,

(2) The enrollee is prevented by a serious medical condition from being able to utilize TRDP benefits, or

(3) The enrollee would suffer severe financial hardship by continuing TRDP enrollment.

(C) Effective date of voluntary termination. For cases determined to qualify for disenrollment under the grace period provisions in paragraph (d)(5)(ii)(A) of this section, enrollment is completely nullified effective from the beginning date of coverage. For cases determined to qualify for disenrollment under the extenuating circumstances provisions in paragraph (d)(5)(ii)(B) of this section, the effective date of disenrollment is the first of the month following the contractor's initial determination on the disenrollment request or the first of the month following the last use of TRDP benefits under the enrollment, whichever is later.

(D) Appeal process for denied voluntary enrollment termination. An enrollee has the right to appeal to OCHAMPUS the contractor's determination that a disenrollment request does not qualify under paragraphs (d)(5)(ii)(A) or (B) of this section. The enrollee may appeal that determination by submitting a written request to OCHAMPUS with a copy of the contractor's determination notice and relevant documentation supporting the disenrollment request. This appeal must be received by OCHAMPUS within 60 days of the date of the contractor's determination notice. The burden of proof is on the enrollee to establish affirmatively by substantial evidence that the enrollee qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or (B) of this section. OCHAMPUS will issue written notification to the enrollee and the contractor of its appeal determination within 60 days from the date of receipt of the appeal request. The decision of OCHAMPUS is final.

* * * * *

(e) * * *

(2) Effects of failure to make premium payments. Failure to make premium payments will result in the enrollee's disenrollment from the TRDP and a lock-out period of 12 months. Following this period of time, eligible individuals will be able to re-enroll if they so choose.

* * * * *

(k) Appeal procedures. All levels of appeal established by the contractor shall be exhausted prior to an appeal being filed with OCHAMPUS. Procedures comparable to those established for appeal of benefit determinations under § 199.10 shall apply together with the procedures for appeal of voluntary disenrollment determinations described in paragraph (d)(5)(ii)(D) of this section.

* * * * *

Dated: January 24, 2002.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.