58204 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Proposed Rules 

requires that each Federal agency 

prepare a regulatory flexibility analysis 

when the agency issues a regulation 

which would have a significant impact 

on a substantial number of small 

entities. This proposed rule is not an 

economically significant regulatory 

action, and it has been certified that it 

will not have a significant impact on a 

substantial number of small entities. 

Therefore, this proposed rule is not 

subject to the requirements of the RFA. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

This rule does not contain a 

‘‘collection of information’’ 

requirement, and will not impose 

additional information collection 

requirements on the public under Public 

Law 96–511, ‘‘Paperwork Reduction 

Act’’ (44 U.S.C. Chapter 35). 

Executive Order 13132, ‘‘Federalism’’ 

E.O. 13132, ‘‘Federalism,’’ requires 

that an impact analysis be performed to 

determine whether the rule has 

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. It has been 

certified that this proposed rule does 

not have federalism implications, as set 

forth in E.O. 13132. 

List of Subjects in 32 CFR part 199 

Claims, Dental health, Health care, 

Health insurance, Individuals with 

disabilities, 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 is amended by 

adding to paragraph (b), to appear in 

alphabetical order, a definition of 

‘‘Third-party billing agent,’’ to read as 

follows: 

§ 199.2 Definitions. 

* * * * * 

(b) * * * 

Third-party billing agent. Any entity 

that acts on behalf of a provider to 

prepare, submit and monitor claims, 

excluding those entities that act solely 

as a collection agency. 

* * * * * 

3. Section 199.9 is amended by 

adding paragraph (n) to read as follows: 

§ 199.9 Administrative Remedies for 

Fraud, Abuse, and Conflict of Interest. 

* * * * * 

(n) * * * Third-party billing agents as 

defined in § 199.2(b) of this part, while 

not considered providers, are subject to 

the provisions of this section to the 

same extent as such provisions apply to 

providers. 

* * * * * 

Dated: August 24, 2011. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2011–23763 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2011–HA–0058; RIN 0720–AB51] 

TRICARE; Changes Included in the 

National Defense Authorization Act for 

Fiscal Year 2010; Constructive 

Eligibility for TRICARE Benefits of 

Certain Persons Otherwise Ineligible 

Under Retroactive Determination of 

Entitlement to Medicare Part A 

Hospital Insurance Benefits 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Proposed rule. 

SUMMARY: The Department is publishing 

this proposed rule to implement section 

706 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year 2010, Public Law 111–84. 

Specifically section 706 exempts 

TRICARE beneficiaries under the age of 

65 who become disabled from the 

requirement to enroll in Medicare Part 

B for the retroactive months of 

entitlement to Medicare Part A in order 

to maintain TRICARE coverage. This 

statutory amendment and proposed rule 

only impact eligibility for the period in 

which the beneficiary’s disability 

determination is pending before the 

Social Security Administration. Eligible 

beneficiaries would still be required to 

enroll in Medicare Part B in order to 

maintain their TRICARE coverage for 

future months, but would be considered 

to have coverage under the TRICARE 

program for the months retroactive to 

their entitlement to Medicare Part A. 

This proposed rule also amends the 

eligibility section of the TRICARE 

regulation to more clearly address 

reinstatement of TRICARE eligibility 

following a gap in coverage due to lack 

of enrollment in Medicare Part B. 

DATES: Written comments received at 

the address indicated below by 

November 21, 2011 will be accepted. 

ADDRESSES: You may submit comments, 

identified by docket number or 

Regulatory Information Number (RIN) 

and title, by any of the following 

methods: 

The Web site http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

2nd Floor, East Tower, Suite 02G09, 

Alexandria, VA 22350–3100. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this Federal 

Register document. The general policy 

for comments and other submissions 

from members of the public is to make 

these submissions available for public 

viewing on the Internet at http:// 

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Anne Breslin, TRICARE Management 

Activity (TMA), TRICARE Operations 

Branch, telephone (703) 681–0039. 

SUPPLEMENTARY INFORMATION: Prior to 

the enactment of section 706 of the 

National Defense Authorization Act for 

Fiscal Year 2010 (Pub. L. 111–84), 10 

U.S.C. 1086(d) provided that a person 

who would otherwise receive benefits 

under section 1086 who is entitled to 

Medicare Part A hospital insurance is 

not eligible for TRICARE unless the 

individual is enrolled in Medicare Part 

B. When a TRICARE beneficiary 

becomes eligible for Medicare, Medicare 

becomes the primary payer and 

TRICARE is the secondary payer. 

Retroactive Medicare eligibility 

determinations therefore caused DoD 

and Medicare to reprocess claims. 

Section 706 of the Fiscal Year 2010 

National Defense Authorization Act 

amended 10 U.S.C. 1086(d) to exempt 

TRICARE beneficiaries under the age of 

65 who became Medicare eligible due to 

a retroactive disability determination 

from the requirement to enroll in 

Medicare Part B for the retroactive 

months of entitlement to Medicare Part 

A in order to maintain TRICARE 

coverage. This statutory amendment 

became effective upon enactment of the 

Fiscal Year 2010 National Defense 

Authorization Act on October 28, 2009. 

Prior to this amendment, beneficiaries 

who did not purchase Medicare Part B 

to cover the retroactive period lost their 

TRICARE eligibility during that period 

of time. As a result, beneficiaries and 

providers were then subject to TRICARE 

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Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Proposed Rules 58205 

recoupment action for care provided 

during the period of retroactive 

disability. Pursuant to this amendment, 

TRICARE remains first payer for any 

claims filed during the retroactive 

months and disabled TRICARE 

beneficiaries are relieved of the 

financial burden of making retroactive 

payments to avoid a gap in coverage. 

This proposed rule will amend the Code 

of Federal Regulations to conform to 

current statury authority regarding 

TRICARE eligibility. 

Additionally, due to an earlier 

administrative omission, this proposed 

rule also amends 32 CFR 199.3 to more 

clearly address reinstatement of 

TRICARE eligibility following a gap in 

coverage due to lack of enrollment in 

Part B. While most TRICARE 

beneficiaries who become eligible for 

Medicare Part A maintain TRICARE 

coverage through prompt acceptance of 

Part B coverage, there are a number of 

beneficiaries that for one reason or 

another decline Part B and lose their 

TRICARE eligibility. For those 

individuals, they can have that 

eligibility reinstated at a later date if 

they re-enroll in Part B. This proposed 

rule amends the section on 

reinstatement of TRICARE eligibility to 

include beneficiaries who elect to enroll 

in Medicare Part B following a gap in 

TRICARE coverage. 

All comments will be carefully 

considered. A discussion of the major 

issues received by public comments will 

be included with the issuance of the 

final rule. 

Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’; Executive Order 

13563. ‘‘Improving Regulation and 

Regulatory Review’’; and Public Law 96– 

354, ‘‘Regulatory Flexibility Act’’ (5 

U.S.C. 601) 

Executive Orders 12866 and 13563 

require that a comprehensive regulatory 

impact analysis be performed on any 

economically 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. 

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 an economically significant 

regulatory action and will not have a 

significant impact on a substantial 

number of small entities for purposes of 

the RFA, thus this rule is not subject to 

any of these requirements. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3511) 

This rule will not impose additional 

information collection requirements on 

the public. OMB previously cleared the 

collection requirements under OMB 

Control Number 0704–0364. 

Executive Order 13132, ‘‘Federalism,’’ 

We have examined the impact(s) of 

the 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, Dental health, Health care, 

Health insurance, Individuals with 

disabilities, 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; chapter 55 of 10 

U.S.C. 

2. Section 199.3 is amended by: 

a. Adding paragraph (f)(2)(iii); 

b. Revising paragraph (f)(3)(ix)(C); and 

c. Adding paragraph (g)(3) to read as 

follows: 

§ 199.3 Eligibility. 

* * * * * 

(f) * * * 

(2) * * * 

(iii) Attainment of entitlement to 

hospital insurance benefits (Part A) 

under Medicare except as provided in 

paragraphs (b)(3), (f)(3)(vii), (f)(3)(viii) 

and (f)(3)(ix) of this section. 

(3) * * * 

(ix) * * * 

(C) The individual is enrolled in Part 

B of Medicare except that in the case of 

a retroactive determination of 

entitlement to Medicare Part A hospital 

insurance benefits for a person under 65 

years of age there is no requirement to 

enroll in Medicare Part B from the 

Medicare Part A entitlement date until 

the issuance of such retroactive 

determination; and 

* * * * * 

(g) * * * 

(3) Enrollment in Medicare Part B. For 

individuals whose CHAMPUS eligibility 

has terminated pursuant to paragraph 

(f)(2)(iii) or (f)(3)(vi) of this section due 

to beneficiary action to decline Part B of 

Medicare, CHAMPUS eligibility 

resumes, effective on the date Medicare 

Part B coverage begins, if the person 

subsequently enrolls in Medicare Part B 

and the person is otherwise still eligible. 

3. Section 199.8 is amended as 

follows: 

a. Revise paragraph (d)(1)(i); 

b. Redesignate (d)(1)(vi), (d)(1)(vii) 

and (d)(1)(viii) as (d)(1)(vii), (d)(1)(viii), 

and (d)(1)(ix) respectively; and 

c. Add the following new paragraph 

(d)(1)(vi). 

§ 199.8 Double Coverage. 

* * * * * 

(d) * * * 

(1) * * * 

(i) General rule. In any case in which 

a beneficiary is eligible for both 

Medicare and CHAMPUS received 

medical or dental care for which 

payment may be made under Medicare 

and CHAMPUS, Medicare is always the 

primary payer except in the case of 

retroactive determinations of disability 

as provided in paragraph (d)(1)(v) of this 

section. For dependents of active duty 

members, payment will be determined 

in accordance to paragraph (c) of this 

section. For all other beneficiaries 

eligible for Medicare, the amount 

payable under CHAMPUS shall be the 

amount of actual out-of-pocket costs 

incurred by the beneficiary for that care 

over the sum of the amount paid for that 

care under Medicare and the total of all 

amounts paid or payable by third party 

payers other than Medicare. 

* * * * * 

(vi) Retroactive determinations of 

disability. In circumstances involving 

determinations of retroactive Medicare 

Part A entitlement for persons under 65 

years of age, Medicare becomes the 

primary payer effective as of the date of 

issuance of the retroactive 

determination by the Social Security 

Administration. For care and services 

rendered prior to issuance of the 

retroactive determination, the 

CHAMPUS payment will be determined 

consistent with paragraph (d)(1)(iii)(B) 

of this section notwithstanding the 

beneficiary’s retroactive entitlement for 

Medicare Part A during that period. 

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58206 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Proposed Rules 

4. Section 199.11 is amended as 

follows: 

a. Revising paragraph (f)(3) to read as 

follows: 

§ 199.11 Overpayments Recovery. 

* * * * * 

(f) * * * 

(3) Claims arising from erroneous 

TRICARE payments in situations where 

the beneficiary has entitlement to an 

insurance, medical service, health and 

medical plan, including any plan 

offered by a third party payer as defined 

in 10 U.S.C. 1095(h)(1) or other 

government program, except in the case 

of a plan administered under Title XIX 

of the Social Security Act (42 U.S.C. 

1396, et seq.) through employment, by 

law, through membership in an 

organization, or as a student, or through 

the purchase of a private insurance or 

health plan, shall be recouped following 

the procedures in paragraph (f) of this 

section. If the other plan has not made 

payment to the beneficiary or provider, 

the contractor shall first attempt to 

recover the overpayment from the other 

plan through the contractor’s 

coordination of benefits procedures. If 

the overpayment cannot be recovered 

from the other plan, or if the other plan 

has made payment, the overpayment 

will be recovered from the party that 

received the erroneous payment from 

TRICARE. Nothing in this section shall 

be construed to require recoupment 

from any sponsor, beneficiary, provider, 

supplier and/or the Medicare Program 

under Title XVIII of the Social Security 

Act in the event of a retroactive 

determination of entitlement to SSDI 

and Medicare Part A coverage made by 

the Social Security Administration as 

discussed in section 199.8(d) of this 

part. 

Dated: August 24, 2011. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2011–23765 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–06–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0986; FRL–9468–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; District 

of Columbia, Maryland, and Virginia; 

Determinations of Attainment of the 

1997 8-Hour Ozone National Ambient 

Air Quality Standard for the 

Washington, DC–MD–VA 8-Hour Ozone 

Moderate Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to make two 

determinations regarding the 

Washington, DC–MD–VA moderate 8- 

hour ozone nonattainment area (the 

Washington Area). First, EPA is 

proposing to make a determination that 

the Washington Area has attained the 

1997 8-hour ozone National Ambient 

Air Quality Standard (NAAQS). This 

proposed determination is based upon 

complete, quality assured, and certified 

ambient air monitoring data that show 

the area has monitored attainment of the 

1997 8-hour ozone NAAQS for the 

2007–2009 and 2008–2010 monitoring 

periods. If this proposal becomes final, 

the requirement for this area to submit 

an attainment demonstration, 

reasonably available control measures 

(RACM), a reasonable further progress 

(RFP) plan, and contingency measures 

related to attainment of the 1997 8- 

hours ozone NAAQS shall be suspended 

for so long as the area continues to 

attain the 1997 8-hour ozone NAAQS. 

Although these requirements are 

suspended, EPA is not precluded from 

acting upon these elements at any time 

if submitted to EPA for review and 

approval. Second, EPA is also proposing 

to determine that the Washington Area 

has attained the 1997 8-hour ozone 

NAAQS by its attainment date of June 

15, 2010. These actions are being taken 

under the Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before October 20, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2010–0986 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0986, 

Cristina Fernandez, Associate Director, 

Office of Air Quality Planning, Mailcode 

3AP30, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2010– 

0986. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

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