00-19863. Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); Expansion of Dependent Eligibility for TRICARE Retiree Dental Program

AGENCY:

Office of the Secretary, DoD.

ACTION:

Final rule.

SUMMARY:

This final rule implements a change to the TRICARE Retiree Dental Program (TRDP) required by the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999. This change expands eligibility for enrollment in the program to allow dependents of certain retired members of the Uniformed Services to enroll in the program even if the retired member does not enroll. In addition, this rule clarifies the existing regulatory provisions for election of TRDP coverage and disenrollment.

EFFECTIVE DATE:

This rule is effective August 10, 2000.

ADDRESSES:

TRICARE Management Activity, 16401 East Centretech Parkway, Aurora, CO 80011-9043.

FOR FURTHER INFORMATION CONTACT:

Linda Winter, TRICARE Management Activity, [phone].

SUPPLEMENTARY INFORMATION:

Background and Legislative Changes

A. Congressional Action

Implementation of the TRICARE Retiree Dental Program (TRDP), a program completely funded by enrollee premiums, was directed by Congress in Section 703 of the National Defense Authorization Act for Fiscal Year 1997, Public Law 104-201, which amended Title 10, United States Code, by adding Section 1076c. Section 1076c was subsequently amended by the National Defense Authorization Act for Fiscal Year 1998 to expand eligibility to retirees of the Public Health Service and the National Oceanic and Atmospheric Administration and to surviving spouses and dependents of deceased active duty members. As amended, the law directs the implementation of a dental program for: (1) Members of the Uniformed Services who are entitled to retired pay, (2) members of the Retired Reserve who would be entitled to retired pay, but are under the age of 60, (3) eligible dependents of a member in (1) or (2) who are covered by the enrollment of the member, and (4) the unremarried surviving spouse and eligible child dependents of a deceased member who died while in status described in (1) or (2); 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 Active Duty Dependents Dental Plan.

Eligibility of dependents (other than surviving spouses and dependents) for the TRDP was contingent on the enrollment of the retired member. This applied even in cases where the member could not benefit from TRDP coverage. In such cases, members had a choice of enrolling solely to obtain coverage for their dependents, or doing without the program altogether.

With regard to amending Section 1076c of Title 10 to rectify this situation, the House National Security Committee reported, “Presently, dependents may enroll in the retiree dental program only if the retired member also enrolls. However, some retired members are entitled to receive dental care from the Department of Veterans Affairs or have medical or dental conditions which preclude their use of the dental program. The Committee believes it is not reasonable to ask these retirees to enroll in, and pay premiums for, a program which offers them no benefits only so their dependents may also enroll in the program. Therefore, this provision would allow the dependents of these specific retirees to enroll in the retiree dental program independently.”

Section 702 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Public Law 105-261, addressed this situation by extending eligibility for the TRDP to eligible dependents of certain retired members who are not enrolled and whose benefit from enrollment would be severely limited at best. These are members who are enrolled with the Department of Veterans Affairs to receive dental care, members who are enrolled through employment in a dental plan that is not available to the member's dependents, and members who are prevented by a medical or dental condition from being able to use TRDP benefits.

B. Public Comments

The proposed rule was published in the Federal Register on December 1, 1999. No public comments were received.

II. Provisions of the Rule

Provisions of the Proposed Rule

The proposed rule extends eligibility for the TRDP to eligible dependents when the retired member is not enrolled because the member would not benefit from the program due to any of the three conditions stipulated in the law, which are, briefly, dental care from the Department of Veterans Affairs, employee-only dental coverage, or medical or dental condition which precludes dental care. To facilitate understanding and convey the intent of the law, the proposed rule mandates that each of these conditions must meet the test of being ongoing, long-term, or enduring as opposed to episodic, conditional, temporary, or short-term. The retired member's circumstance must be such that the benefits of the TRDP would not be useful currently and in the foreseeable future. This distinction is also necessary to help limit the potential for adverse selection and higher costs.

Given the absence of any systems of information that a member meets any of the three qualifying conditions, the proposed rule requires that retired members desiring to enroll their dependents under the dependent-only provision provide documentation attesting to the existence of these conditions. The documentation requirements are specified as being: (1) confirmation by the Department of Veterans Affairs of its authorization for the member's ongoing, comprehensive dental care, (2) confirmation by a member's employer or the employer's dental plan administrator that the member is enrolled in a dental plan through employment that is separate from the member's Uniformed Service, and the dental plan is not available to the member's dependents, or (3) confirmation by the member's physician or dentist of the member's inability to utilize TRDP benefits due to a current and enduring medical or dental condition. These criteria and documentation requirements were developed with the recognition that the three situations specified by Congress for allowing dependent-only enrollment represent exceptional circumstances.

The availability of dental care from the Department of Veterans Affairs is extremely limited. Sections 1710(c) and 1712 of title 38, United States Code, and sections 17.93, and 17.160 through 17.166 of title 38, Code of Federal Regulations specify the criteria which a veteran must meet to be considered for dental care. The policies and procedures for the Veterans Health Administration (VHA) Dental Program are covered in the VHA Directive 1130 (December 7, 1998) and the VHA Handbook 1130.1 (December 7, 1998).

The determinations of eligibility or authorization for dental care are not based simply on enrollment for health care from the Department of Veterans Affairs nor are such decisions recorded in a centralized system. These are accomplished by the Department of Veterans Affairs at local and regional levels. In general, entitlement to continuous, comprehensive dental benefits from the Department of Veterans Affairs is limited to those veterans who are in receipt of a compensable service connected dental rating, a 100% service connected rating, or a permanent and totally disabled (unemployable) rating, or who have been classified as former Prisoners of War (for at least 90 days). In most other cases, the dental care provided to eligible veterans is episodic and short-term.

Just as the dental care available from the Department of Veterans Affairs is limited, employee-only dental coverage is not prevalent in the health insurance industry according to sources at the Health Insurance Association of America and Delta Dental Plan of California. Similarly, expectations are that the prevalence of medical or dental conditions that would preclude any use for the coverage offered by the TRDP is relatively small.

The proposed rule prohibits retroactive dependent-only enrollments and requires that enrolled retirees satisfy any remaining enrollment commitment prior to enrolling dependents under the dependent-only provision. Once the initial enrollment commitment is fulfilled, retirees who meet one of the dependents-only eligibility conditions may disenroll with dependents remaining enrolled on a month-to-month basis.

Other Provisions of the Proposed Rule

In addition to implementing dependent-only eligibility, the proposed rule clarifies the process for electing to enroll in the TRDP by removing the apparently restrictive reference to written election, thereby recognizing the existence of the variety of methods in which an election of enrollment can be conveyed, e.g., by written, telephonic, or e-mailed application. The proposed rule also clarifies the 12-month enrollment lock-out provision by specifying that the provision applies to disenrollment occurring at any time and for any reason. This includes disenrollment after the enrollee has fulfilled the 24-month initial enrollment commitment and disenrollment of the retired member to convert to dependent-only coverage.

Provisions of the Final Rule

The final rule is consistent with the proposed rule.

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 (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 rule is not a significant regulatory action under the provisions of Executive Order 12866, and it would not have a significant impact on a substantial number of small entities.

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
• Health insurance
• Individuals with disabilities
• Military personnel, and Reporting and record keeping requirements

Accordingly, 32 CFR part 199 is 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 amended by revising paragraphs (d)(1)(iii), (d)(3), and (d)(4); redesignating paragraph (d)(1)(iv) as paragraph (d)(1)(v); and adding a new paragraph (d)(1)(iv) to read as follows:

§ 199.22

TRICARE Retiree Dental Program (TRDP).

* * * * *

(d) * * *

(1) * * *

(iii) Eligible dependents of a member described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section who are covered by the enrollment of the member;

(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, month-to-month basis as specified in paragraph (d)(4) of this section. Members must provide documentation to the TRDP contractor giving evidence of compliance with paragraphs (d)(1)(iv)(A), (B), or (C) of this section at the time of application for enrollment of their dependents under this paragraph.

(A) The member is enrolled under Section 1705 of Title 38, United States Code, to receive ongoing, comprehensive dental care from the Department of Veterans Affairs pursuant to Section 1712 of Title 38, United States Code, and 38 CFR 17.93, 17.161, or 17.166. Authorization of such dental care must be confirmed in writing by the Department of Veterans Affairs.

(B) The member is enrolled in a dental plan that is available to the member as a result of employment of the member that is separate from the Uniformed Service of the member, and the dental plan is not available to dependents of the member as a result of such separate employment by the member. Enrollment in this dental plan and the exclusion of dependents from enrollment in the plan must be confirmed by documentation from the member's employer or the dental plan's administrator.

(C) The member is prevented by a current and enduring medical or dental condition from being able to obtain benefits under the TRDP. The specific medical or dental condition and reason for the inability to use the program's benefits over time, if not apparent based on the condition, must be documented by the member's physician or dentist.

* * * * *

(3) Election of coverage. In order to initiate dental coverage, election to enroll must be made by the retired member or eligible dependent. Enrollment in the TRICARE Retiree Dental Program is voluntary and will be accomplished by submission of an application to the TRDP contractor.

(4) Enrollment periods. Initial enrollment shall be for a period of 24 months followed by month-to-month enrollment as long as the enrollee chooses to continue enrollment. An enrollee's disenrollment from the TRDP at any time for any reason is subject to a lock-out period of 12 months. After any lock-out period, eligible individuals may elect to reenroll and are subject to a new initial 24-month enrollment period.

* * * * *

July 31, 2000.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.