Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations 18051 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Section 936.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘date of final 

publication’’ to read as follows: 

§ 936.15 Approval of Oklahoma regulatory 

program amendments. 

* * * * * 

Original amendment submission date Date of final publication Citation/description 

* * * * * * * 

November 26, 2008 .......................................... April 9, 2010 ..................................................... Notice of violations: Section 460:20–59–4. 

[FR Doc. 2010–8175 Filed 4–8–10; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[Docket ID: DoD–2007–HA–0078; RIN 0720– 

AB17] 

TRICARE; Relationship Between the 

TRICARE Program and EmployerSponsored Group Health Coverage 

AGENCY: Office of the Secretary, DoD. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

section 1097c of Title 10, United States 

Code, as added by section 707 of the 

John Warner National Defense 

Authorization Act for Fiscal Year 2007, 

Public Law 109–364. This law prohibits 

employers from offering incentives to 

TRICARE-eligible employees to not 

enroll or to terminate enrollment in an 

employer-offered Group Health Plan 

(GHP) that is or would be primary to 

TRICARE. Benefits offered through 

cafeteria plans that comport with 

section 125 of the Internal Revenue 

Code will be permissible as long as the 

plan treats all similarly situated 

employees eligible for benefits the same 

and does not illegally take TRICARE 

eligibility into account. TRICARE 

supplemental insurance plans, because 

they are limited to TRICARE 

beneficiaries exclusively, are generally 

impermissible. Properly documented 

non-employer contributed TRICARE 

supplemental plans, however, are 

allowed. 

DATES: Effective June 18, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kathleen Larkin, TRICARE Policy and 

Operations, TRICARE Management 

Activity, 5111 Leesburg Pike, Suite 810, 

Falls Church, VA 22041, telephone 

(703) 681–0039. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 707 of the John Warner 

National Defense Authorization Act for 

Fiscal Year 2007 (Pub. L. 109–364) 

added section 1097c to Title 10, United 

States Code. Section 1097c prohibits 

employers from offering financial or 

other incentives to certain TRICAREeligible employees (essentially retirees 

and their family members) to not enroll 

in an employer-offered GHP in the same 

manner as employers are currently 

prohibited from offering incentives to 

Medicare-eligible employees under 

section 1862(b)(3)(C) of the Social 

Security Act (42 U.S.C. 1395y(b)(3)(C)). 

Many employers, including state and 

local governments, have begun to offer 

their employees who are TRICAREeligible a TRICARE supplement as an 

incentive not to enroll in the employer’s 

primary GHP. These actions shift 

thousands of dollars of annual health 

costs per employee to the Defense 

Department, draining resources from 

higher national security priorities. 

TRICARE is, as is Medicare, a secondary 

payer to employer-provided health 

insurance. In all instances where a 

TRICARE beneficiary is employed by a 

public or private entity and elects to 

participate in a GHP, reimbursements 

for TRICARE claims will be paid as a 

secondary payer to the TRICARE 

beneficiary’s employer-sponsored GHP. 

TRICARE is not responsible for paying 

first as it relates to reimbursements for 

a TRICARE beneficiary’s health care and 

the coordination of benefits with 

employer-sponsored GHPs. 

An identified employer-sponsored 

health plan will be the primary payer 

and TRICARE will be the secondary 

payer. TRICARE will generally pay no 

more than the amount it would have 

paid if there were no employer GHP. As 

applicable to both the Medicare and 

TRICARE secondary payer programs, 

the term ‘‘group health plan’’ means a 

plan (including a self-insured plan) of, 

or contributed to by, an employer 

(including a self-employed person) or 

employee organization to provide health 

care (directly or otherwise) to the 

employees, former employees, the 

employer, others associated or formerly 

associated with the employer in a 

business relationship, or their families. 

It should be noted that by including any 

plan of an employer to provide health 

care to employees, this definition is very 

broad. 

The purpose of the prohibition on 

incentives not to enroll in employersponsored GHPs is to prevent employers 

from shifting their responsibility for 

their employees onto the Federal 

taxpayers. Certain common employer 

benefit programs do not constitute 

improper incentives under the law. For 

example, the general rule is that an 

employer-funded benefit offered 

through an employer’s cafeteria plan 

that comports with section 125 of the 

Internal Revenue Code would not be 

considered improper incentive, as long 

as it is not a TRICARE exclusive benefit. 

A cafeteria plan, as defined by the 

Internal Revenue Code, 26 U.S.C. 

125(d), is a written plan under which all 

participants are employees and the 

participants may choose among two or 

more benefits consisting of cash and 

qualified benefits. Employers who 

adhere to the requirements of section 

125 and offer all similarly situated 

employees without regard to TRICARE 

eligibility a choice between health 

insurance and cash payment equivalents 

are not considered in violation of 42 

U.S.C. 1395y(b)(3)(C). Therefore, if a 

TRICARE beneficiary elects the cashpayment option as a benefit offered via 

the employer’s cafeteria plan, one which 

meets section 125 requirements, then 

the employer would not be in violation 

of these provisions. In general, 10 U.S.C. 

1097c prohibits employer-endorsed 

TRICARE supplemental plans as an 

option for health coverage under an 

employer-sponsored GHP to TRICAREeligible beneficiaries. This type of 

benefit cannot be offered as part of a 

cafeteria plan because the employer, by 

endorsing this type of plan, effectively 

offers an improper incentive targeted 

only at TRICARE beneficiaries for not 

enrolling in the employer’s main health 

plan option or options. 

Section 1097c does not impact 

TRICARE supplemental plans that are 

not offered by an employer but are sold 

by an insurer and/or beneficiary 

association working in conjunction with 

an insurer. Such non-employersponsored TRICARE supplemental 

plans will continue to be expressly 


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18052 Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations 

excluded as double coverage under 32 

CFR 199.2(b) and 199.8(b)(4)(ii), so that 

TRICARE is the primary payer and the 

TRICARE supplemental plan is the 

secondary payer. 

II. Public Comments 

The proposed rule was published in 

the Federal Register on March 24, 2008, 

for a 60-day comment period. We 

received 21 comments. We thank those 

who provided comments. Specific 

matters raised by those who submitted 

comments are summarized below. 

Comment: One commenter approved 

of the rule but suggested the text be 

clarified to refer more precisely to a 

‘‘cafeteria plan’’ as a vehicle for offering 

benefits to employees, rather than as a 

benefit itself. Further, this commenter 

suggested our references to ‘‘benefits 

offered to all employees’’ overlook that 

benefits are oftentimes not offered to all 

employees due to their being in 

different divisions or geographic 

locations. 

Response: We agree with the 

commenter. We have clarified our 

references to ‘‘cafeteria plan.’’ 

Additionally, references to ‘‘all 

employees’’ have been changed to ‘‘all 

similarly situated employees.’’ 

Comment: Several commenters urged 

that we revise the rule to permit 

employers to offer TRICARE 

supplemental plans that are not paid for 

in whole or in part by the employer and 

are not endorsed by the employer. Plans 

such as this, sometimes referred to as 

‘‘voluntary plans,’’ might allow 

employees to purchase TRICARE 

supplements with pre-tax dollars. 

Response: We agree that this is a 

reasonable proposal, allowing the 

employer to have some involvement in 

offering a TRICARE-exclusive plan. 

Thus, we have revised the rule to make 

clear that the prohibition on employer 

incentives does not include TRICARE 

supplemental plans when it is properly 

documented that the employer does not 

provide any payment for the benefit nor 

receive any direct or indirect 

consideration or compensation for 

offering the benefit; the employer’s only 

involvement is providing the 

administrative support for the benefits 

under the cafeteria plan. 

Comment: Several commenters 

reported they had been inappropriately 

excluded from benefits due to their 

employers’ misunderstanding of the 

law. For example, several commented 

that their employers stopped allowing 

TRICARE eligibles from taking 

advantage of a permissible cash option 

under a proper cafeteria plan. Another 

commenter who similarly lost a 

medical-insurance stipend applauded 

the rule as she believes its 

implementation will correct her 

employer’s misunderstanding since it 

clearly states cash options are 

permissible when offered to all similarly 

situated employees under a proper 

cafeteria plan. 

Response: We hope this final rule will 

eliminate these misunderstandings. This 

regulation does not prohibit TRICAREeligible employees from electing a cash 

option offered to all similarly situated 

employees under a proper cafeteria 

plan. 

Comment: One commenter, an active 

duty service member, reported that his 

daughter’s employer ceased funding her 

403(b) benefit and required her to 

acquire the employer health insurance 

plan in order to comply with this law. 

Response: Again, nothing of the sort 

is required by the law or this regulation. 

Further, both the statute and this 

regulation expressly define a TRICAREeligible employee as a person who is 

eligible for TRICARE coverage under 10 

U.S.C. 1086. This essentially applies to 

retirees and their family members and 

does not include dependents of active 

duty personnel. 

Comment: One commenter offered a 

different numbering scheme for the 

insertion of this rule into section 

1097(c) of Title 10, U.S. Code. 

Response. Section 1097c is a new, 

complete section and will not be added 

as subsection 1097(c) under section 

1097. 

Comment: One commenter stated 

military retirees should have the same 

access to civilian employer cafeteria 

plan offerings as their fellow employees. 

Response: We agree that military 

retirees should have the same access to 

employer benefit plans as their civilian 

counterparts. The rule makes clear that 

employer-sponsored benefits offered to 

all similarly situated employees do not 

violate 10 U.S.C. 1097c or this 

regulation. 

Comment: Several commenters 

believe section 707 exceeds what is 

necessary to ensure improper incentives 

are not provided by employers; they feel 

a qualifying cafeteria plan which offers 

a TRICARE supplement is not an 

improper incentive. 

Response: The statute is designed to 

stop employers from targeting TRICARE 

beneficiaries with incentives designed 

to shift employers’ financial 

responsibility for health coverage to 

federal taxpayers. The Conference 

Report accompanying the enactment of 

section 1097c made clear that 

supplemental insurance plans offered 

by employers through cafeteria plans are 

permissible under 1097c only if they are 

‘‘non-TRICARE-exclusive employerprovider health care incentives.’’ 

TRICARE-exclusive plans, even if 

offered under cafeteria plans, are not 

allowed (except for plans offered that 

comport with the new provision 

regarding non-contributory plans). 

Comment: One commenter questioned 

if the employer could provide a Health 

Reimbursement Arrangement (HRA) in 

lieu of a traditional employer-sponsored 

health plan. An additional commenter 

questioned how this rule intersects with 

the McNamara-O’Hara Service Contract 

Act (SCA). 

Response: An HRA is an employer 

sponsored plan. HRAs generally are 

classified as group health plans, and 

only employers can make contributions 

to HRAs. If the incentive, such as an 

HRA, is available to and can be used by 

all similarly situated employees (not 

limited to TRICARE beneficiaries), it 

does not violate this provision. Further, 

cash payments or other bona fide fringe 

benefits may properly be offered under 

the SCA and otherwise in lieu of health 

care coverage as long as the employer 

does not consider TRICARE eligibility 

when formulating the cash payment or 

fringe benefits options. 

Comment: Several commenters 

criticized the proposed rule on the 

grounds that it results in a lessening of 

total benefits for military retirees who 

could otherwise receive TRICARE 

Standard coverage from DoD and a 

TRICARE supplemental plan from the 

employer, both without paying 

premiums and together resulting in 

comprehensive health care with no outof-pocket costs. 

Response: We acknowledge that prior 

to the enactment of section 1097c, an 

employer could offer TRICARE-eligible 

employees TRICARE supplemental 

plans that would save money for both 

the employer and the employee. But this 

was accomplished by shifting costs to 

the employee’s former employer, the 

United States Government and the 

federal taxpayers. Health care financing 

in the United States is, of course, a 

complicated enterprise but in general is 

organized as a benefit of employment 

for which most employers accept 

primary responsibility. Usually 

employees also contribute to this 

coverage in the form of paying part of 

the premiums. In cases in which there 

is a former employer from whom 

benefits are also available, it is not 

typically assumed that these replace the 

responsibility of the current employer. 

With respect to military retirees, they 

have a very good health care benefit 

under TRICARE provided by their 

former employer. Under the law there 

are some out-of-pocket costs in the form 

of deductibles and copayments; there is 


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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations 18053 

no entitlement to free, comprehensive 

care. Taking all of these factors together, 

the question becomes: What are the 

rules for allocating financial 

responsibilities among the three 

players—the current employer, the 

former employer (the U.S. Government), 

and the employee/retiree? This statute 

provides that the employer and the U.S. 

Government let the employee/retiree 

choose between his or her respective 

health care options, placing primary 

responsibility with either the employer 

or the Government. Neither the 

employer nor the Government should 

seek to shift the responsibility to the 

other. In other words, both the employer 

and Government should offer the same 

benefits they otherwise would offer and 

let the employee decide. That is what 

both the statute and regulation require. 

Although it is true this does not 

necessarily maximize the financial gain 

of the military retiree involved, it is a 

fair allocation of financial 

responsibility, consistent with 

prevailing health care financing law, 

policy, and practice in the United 

States. 

III. Provisions of Final Rule 

The final rule would add to § 199.8 of 

the TRICARE Regulation a new 

paragraph (d)(6) concerning the 

statutory prohibition against financial 

and other incentives not to enroll in a 

group health plan. The final rule is 

similar to the proposed rule except for 

the refinement and revisions noted 

above. DoD considered alternatives to 

the final rule within the bounds of the 

statute and Congressional intent. The 

statute is specific in requiring DoD to 

apply the Medicare rules concerning 

employer incentives to rely on 

Medicare, but does give DoD authority 

to adopt exceptions. The legislative 

history establishes Congressional intent 

clearly to prohibit employer-sponsored 

TRICARE supplemental plans. DoD 

considered the alternative of applying 

the Medicare rules without exception, 

but decided to adopt an exception, 

discussed above, when the employer’s 

only involvement is providing the 

administrative support for the benefits 

under a cafeteria plan for a noncontributory TRICARE supplemental 

plan. Subparagraph (i) provides the 

general rule that an employer or other 

entity is prohibited from offering 

TRICARE beneficiaries financial or 

other benefits as incentives not to enroll 

in, or to terminate enrollment in a group 

health plan that is or would be primary 

to TRICARE. This prohibition applies in 

the same manner as the Medicare 

Secondary Payer law applies to 

incentives for a Medicare-eligible 

employee not to enroll in a group health 

plan that is or would be primary to 

Medicare. 

Subparagraph (ii) states that this 

prohibition precludes offering to 

TRICARE beneficiaries an alternative to 

the employer primary plan unless the 

beneficiary has primary coverage other 

than TRICARE; or the benefit is offered 

under a proper cafeteria plan and is 

offered to all similarly situated 

employees, including non-TRICAREeligible employees; or the benefit is 

offered under a cafeteria plan and, 

although offered only to TRICAREeligible employees, the employer does 

not provide any payment for the benefit 

nor receive any direct or indirect 

consideration or compensation for 

offering the benefit. The employer’s 

only involvement is providing the 

administrative support for the benefits 

under the cafeteria plan, and the 

participation of the employee in the 

plan is completely voluntary. 

Subparagraph (iii) requires 

documentation certifying the 

requirements for a non-contributory 

TRICARE supplemental plan is met in 

cases in which an employer provides 

that option, and that the certification 

will be provided upon request to the 

Department of Defense. In cases in 

which a question arises about a 

TRICARE supplemental plan offered by 

an employer, this documentation will 

provide a simple means to resolve that 

it was offered within the authorized 

exception to the general rule against 

TRICARE-exclusive benefits. 

Subparagraph (iv) provides that 

enforcement of this prohibition is 

afforded through civil monetary 

penalties not to exceed $5,000 for each 

violation, investigative authorities of the 

Department of Defense Inspector 

General, recourse under the Debt 

Collection Improvement Act, and any 

other authority provided by law. 

Subparagraph (v) provides 

definitions. The term ‘‘employer’’ 

includes any State or unit of local 

government and any employer that 

employs at least 20 employees. The term 

‘‘group health plan’’ is defined in 

reference to the Internal Revenue Code. 

The term ‘‘TRICARE-eligible employee’’ 

means a covered beneficiary under 10 

U.S.C. 1086, essentially military retirees 

and their eligible family members. The 

term ‘‘similarly situated’’ means sharing 

common attributes, such as part-time 

employees, or other bona fide 

employment-based classifications 

consistent with the employer’s usual 

business practice, but not including 

TRICARE eligibility as a permissible 

classification. 

Subparagraph (vi) provides that the 

Departments of Defense and Health and 

Human Services are authorized to enter 

into agreements to further carry out the 

new regulation. 

IV. Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ 

Executive Order 12866 requires that a 

comprehensive regulatory impact 

analysis be performed on any significant 

regulatory action, defined as one that 

would result in an annual effect of $100 

million or more on the national 

economy or which would have other 

substantial impacts. In the proposed 

rule, we stated that this rule was an 

economically significant rule. This was 

based on a Congressional Budget Office 

(CBO) estimate during Congressional 

consideration of the underlying 

legislation that it would have an annual 

economic impact of $119 million in 

2008 and $700 million over the 2008– 

2011 period. This was based on CBO’s 

estimate that 50,000 retirees and their 

dependents would stop using TRICARE 

in favor of an employer-sponsored plan. 

Based on an assessment of data in the 

Defense Eligibility Enrollment Reporting 

System (DEERS) of retirees and their 

dependents under age 65 identified as 

having other health insurance, as well 

as recent beneficiary survey data, we 

now believe the CBO estimate was too 

high, and that a better estimate is that 

the statutory change implemented by 

this final rule will yield annual budget 

savings of $64 million for Fiscal Year 

2010. Nonetheless, DoD will continue to 

treat this as an economically significant 

rule to maintain consistency with the 

proposed rule and because medical 

system cost growth in the future may 

raise the economic impact over the $100 

million per year threshold. 

The revised estimate is based on a 

DoD beneficiary survey conducted in 

October 2007 (three months before the 

effective date of section 707). Defense 

Enrollment Eligibility Reporting System 

(DEERS) data indicate that the average 

number of non-active duty family 

members (NADFMs) eligible for 

TRICARE, excluding Medicare eligibles, 

was 2,881,929 in FY09. Among these 

NADFMs, the October 2007 DoD survey 

indicated that 51 percent were offered 

OHI. Therefore, we estimate that 

1,469,784 NADFM eligibles are 

currently offered OHI. Of those 

NADFMs offered OHI, the survey 

indicated that 53 percent took the OHI 

and 47 percent used TRICARE, prior the 

effect of Sec. 707. Therefore, we 

estimate that 690,798 current NADFM 

eligibles were offered OHI but instead 


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18054 Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations 

would have used TRICARE, prior to the 

effect of Sec. 707. 

The survey also asked this group (who 

were offered OHI but used TRICARE) 

whether their employer (or spouse’s 

employer) paid them a bonus for 

declining the employer’s health plan, 

and the survey indicated that 4 percent 

of this group were, in fact, paid to 

decline OHI. Therefore, we estimate that 

27,632 TRICARE eligibles were paid by 

an employer to decline the employer’s 

coverage, prior to the effective date of 

section 707. Of the 690,798 NADFMs 

who declined OHI prior to sec. 707, 

663,166 did so without a financial 

incentive from their employer (because 

they perceived TRICARE as less 

expensive, a better benefit, and/or for 

other reasons). These NADFMs who 

declined their employer plan but were 

not paid to do so represent 46 percent 

of the 1,442,152 NADFMs who were 

offered OHI without a financial 

incentive to decline it (prior to Sec. 

707). The other 54 percent of NADFMs 

who were offered OHI, without a 

financial incentive to decline it, took the 

OHI. Combining these two points, we 

estimate that with the section 707 

prohibition of employer incentives, 54 

percent of the 27,632 NADFMs, or 

14,921 NADFMs, would shift to OHI 

rather than using TRICARE. The other 

46 percent, or 12,711 NADFMs, would 

continue as TRICARE users even 

without the employer financial 

incentive, just as 46 percent of the 

NADFMs who do not have an employer 

financial incentive opt for TRICARE 

rather than OHI. 

An updated analysis of DoD’s cost 

and population data for FY09 indicates 

that the average MHS cost per NADFM 

user under age 65 was $3,975 (in FY09 

dollars). After adjusting for inflation to 

FY10, we estimate that the current year 

(FY10) cost per NADFM user is $4,293. 

Multiplying this cost per user by the 

14,921 NADFMs who would shift to 

OHI rather than using TRICARE, due to 

section 707, yields an annual estimated 

cost impact of $64.1 million in savings 

for Fiscal Year 2010. 

Based on a trend of seven percent 

inflation offset by a projected two 

percent annual decrease in non-active 

duty family members under age 65, we 

estimate the following impact. 

ESTIMATED ANNUAL IMPACT

Fiscal year Savings 

(in millions) 

2010 .................................... $64.1 

2011 .................................... 67.3 

2012 .................................... 70.6 

2013 .................................... 74.2 

2014 .................................... 77.9 

ESTIMATED ANNUAL IMPACT— 

Continued 

Fiscal year Savings 

(in millions) 

2015 .................................... 81.8 

Congressional Review Act, 5 U.S.C. 801, 

et seq. 

Under the Congressional Review Act, 

a major rule may not take effect until at 

least 60 days after submission to 

Congress of a report regarding the rule. 

A major rule is one that would have an 

annual effect of the economy of $100 

million or more or have certain other 

impacts. For the reasons stated above, 

DoD is treating this as a major rule 

under the Congressional Review Act. 

‘‘Regulatory Flexibility Act’’ (5 U.S.C. 

601) 

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 will 

not have a significant impact on a 

substantial number of small entities for 

purposes of the RFA. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3511) 

This rule will impose additional 

information collection requirements on 

the public under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3511). (Ref: Federal Register Vol. 73, 

No. 251, December 31, 2008). 

Executive Order 13132, ‘‘Federalism’’ 

We have examined the impact(s) of 

the final rule under Executive Order 

13132 and it does not have policies that 

have federalism implications that would 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, therefore, 

consultation with State and local 

officials is not required. 

Sec. 202, Public Law 104–4, ‘‘Unfunded 

Mandates Reform Act’’ 

This rule does not contain unfunded 

mandates. It does not contain a Federal 

mandate that may result in the 

expenditure by State, local and tribal 

governments, in aggregate, or by the 

private sector, of $100 million or more 

in any one year. 

List of Subjects in 32 CFR Part 199 

Claims, Health care, Health insurance, 

Military personnel. 

■ Accordingly, 32 CFR part 199 is 

amended as follows: 

PART 199—CIVILIAN HEALTH AND 

MEDICAL PROGRAM OF THE 

UNIFORMED SERVICES (CHAMPUS) 

[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 199.8 is amended by adding 

a new paragraph (d)(6) to read as 

follows: 

§ 199.8 Double coverage. 

* * * * * 

(d) * * * 

(6) Prohibition against financial and 

other incentives not to enroll in a group 

health plan—(i) General rule. Under 10 

U.S.C. 1097c, an employer or other 

entity is prohibited from offering 

TRICARE beneficiaries financial or 

other benefits as incentives not to enroll 

in, or to terminate enrollment in, a 

group health plan that is or would be 

primary to TRICARE. This prohibition 

applies in the same manner as section 

1862(b)(3)(C) of the Social Security Act 

applies to incentives for a Medicareeligible employee not to enroll in a 

group health plan that is or would be 

primary to Medicare. 

(ii) Application of general rule. The 

prohibition in paragraph (d)(6)(i) of this 

section precludes offering to TRICARE 

beneficiaries an alternative to the 

employer primary plan unless: 

(A) The beneficiary has primary 

coverage other than TRICARE; or 

(B) The benefit is offered under a 

cafeteria plan under section 125 of the 

Internal Revenue Code and is offered to 

all similarly situated employees, 

including non-TRICARE eligible 

employees; or 

(C) The benefit is offered under a 

cafeteria plan under section 125 of the 

Internal Revenue Code and, although 

offered only to TRICARE-eligible 

employees, the employer does not 

provide any payment for the benefit nor 

receive any direct or indirect 

consideration or compensation for 

offering the benefit; the employer’s only 

involvement is providing the 

administrative support for the benefits 

under the cafeteria plan, and the 

employee’s participation in the plan is 

completely voluntary. 

(iii) Documentation. In the case of a 

benefit excluded by paragraph 

(d)(6)(ii)(C) of this section from the 


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prohibition in paragraph (d)(6)(i) of this 

section, the exclusion is dependent on 

the employer maintaining in the 

employer’s files a certification signed by 

the employer that the conditions 

described in paragraph (d)(6)(ii)(C) of 

this section are met, and, upon request 

of the Department of Defense, providing 

a copy of that certification to the 

Department of Defense. 

(iv) Remedies and penalties. (A) 

Remedies for violation of this paragraph 

(d)(6) include but are not limited to 

remedies under the Federal Claims 

Collection Act, 31 U.S.C. 3701 et seq. 

(B) Penalties for violation of this 

paragraph (d)(6) include a civil 

monetary penalty of up to $5,000 for 

each violation. The provisions of section 

1128A of the Social Security Act, 42 

U.S.C. 1320a–7a, (other than 

subsections (a) and (b)) apply to the 

civil monetary penalty in the same 

manner as the provisions apply to a 

penalty or proceeding under section 

1128A. 

(v) Definitions. For the purposes of 

this paragraph (d)(6): 

(A) The term ‘‘employer’’ includes any 

State or unit of local government and 

any employer that employs at least 20 

employees. 

(B) The term ‘‘group health plan’’ 

means a group health plan as that term 

is defined in section 5000(b)(1) of the 

Internal Revenue Code of 1986 without 

regard to section 5000(d) of the Internal 

Revenue Code of 1986. 

(C) The term ‘‘similarly situated’’ 

means sharing common attributes, such 

as part-time employees, or other bona 

fide employment-based classifications 

consistent with the employer’s usual 

business practice. (Internal Revenue 

Service regulations at 26 CFR 54.9802– 

1(d) may be used as a reference for this 

purpose). However, in no event shall 

eligibility for or entitlement to TRICARE 

(or ineligibility or non-entitlement to 

TRICARE) be considered a bona fide 

employment-based classification. 

(D) The term ‘‘TRICARE-eligible 

employee’’ means a covered beneficiary 

under section 1086 of title 10, United 

States Code, Chapter 55, entitled to 

health care benefits under the TRICARE 

program. 

(vi) Procedures. The Departments of 

Defense and Health and Human 

Services are authorized to enter into 

agreements to further carry out this 

section. 

* * * * * 

Dated: April 6, 2010. 

Mitchell S. Bryman, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2010–8162 Filed 4–8–10; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–1017] 

RIN 1625–AA11 

Regulated Navigation Areas; Bars 

Along the Coasts of Oregon and 

Washington; Correction 

Correction 

In rule document 2010–4769 

beginning on page 10687 in the issue of 

Tuesday, March 9, 2010, make the 

following correction: 

§165.1325 [Corrected] 

1. On page 10688, in §165.1325, in the 

first column, in paragraph (a)(12) 

‘‘43°38′35′′ N., 24°14′25′′W.’’should read, 

‘‘43°38′35′′ N., 124°14′25′′W.’’ 

[FR Doc. C1–2010–4769 Filed 4–8–10; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2010–0203] 

Drawbridge Operation Regulation; 

Mermentau River, Grand Chenier, LA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, Eighth 

Coast Guard District, has issued a 

temporary deviation from the regulation 

governing the operation of the SR 82 

swing span bridge across the 

Mermentau River, mile 7.1, at Grand 

Chenier, Cameron Parish, Louisiana. 

This deviation is necessary for electrical 

and mechanical repairs pertaining to the 

bridge’s main span drive assembly and 

system components. This deviation 

allows the bridge to remain closed to 

navigation for approximately 10 weeks. 

DATES: This deviation is effective from 

7 a.m. on April 21, 2010, through 7 a.m. 

on June 30, 2010. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2010– 

0203 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2010–0203 in the ‘‘Keyword’’ box 

and then clicking ‘‘Search’’. They are 

also available for inspection or copying 

at the Docket Management Facility (M– 

30), U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail Kay Wade, Bridge 

Administration Branch, Coast Guard; 

telephone 504–671–2128, e-mail 

Kay.B.Wade@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: The 

Louisiana Department of Transportation 

and Development has requested a 

temporary deviation from the operating 

schedule of the swing span bridge 

across the Mermentau River at mile 7.1 

in Grand Chenier, Cameron Parish, 

Louisiana. The closure is necessary in 

order to perform electrical and 

mechanical repairs pertaining to the 

bridge’s main span drive assembly and 

system components. This maintenance 

is essential for the continued operation 

of the bridge. 

The operating schedule for the bridge 

is in 33 CFR 117.480 and states the 

bridge opens on signal; except that, from 

6 p.m. to 6 a.m. the draw shall open on 

signal if at least 4 hours notice is given, 

for the passage of vessels. This deviation 

will allow the bridge to remain in the 

closed-to-navigation position from 7 

a.m. Wednesday, April 21, 2010, 

through 7 a.m. Thursday, July 1, 2010. 

The vertical clearance of the swing 

span bridge in the closed-to-navigation 

position is 13.15 feet above Mean High 

Water, elevation 3.1 feet Mean Sea 

Level. Vessels are able to transit under 

the bridge during operations. There is 

an alternate navigation route via Grand 

Lake for vessels unable to pass under 

the bridge. Navigation on the waterway 

consists of tugs with tows, fishing 

vessels and recreational craft. Due to 

prior experience and coordination with 

waterway users, it has been determined 

that the closure will not have a 

significant effect on navigation. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 


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