Health care options for former military spouses: Tricare and the continued health care benefit program (CHCBP)

Family Law Quarterly

Volumn 43, Issue 2, 2009, Pages 227-300

  Camp, J William ^a  

^a LLP in Warner Robins   (United States)

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EID: 70949091674     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (282)

1. Peter Cushing, The Ten Commandments of Military Divorce: Representing the Nonmilitary Spouse (pt. 2), Fla. B. J., Oct. 1995, at 84-85.
2. 10 U. S. C. § 1071 (2008) states, 'The purpose of this chapter is to create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and certain former members of those services, and of their dependents."
3. 10 U. S. C. §§ 1072 (4), (7) (2008).
4. Id. at§ 1072 (7).
5. Id.
6. Generally, the major plans are Tricare Prime, Tricare Standard, Tricare Select, and Tricare Extra. Within each of these plans are still more sub-options. A Tricare website offers a Plan Wizard for helping individuals select the option that best suits their health care needs. Tricare, http://www.tricare.mil/mybenefit/home/overview/Plans (last visited May 22, 2009).
7. Another wizard allows comparison of the various Tricare plans to help determine which one is most appropriate to the beneficiary. Retired Servicemember, http://www.tricare.mil/my benefit/home/overview/ComparePlans? country=United+States&zipCode=31201&plan= TRICARE+Prime&status= Retired+Service+Member (last visited May 22, 2009).
8. Enrollment fees vary by foreign country and regions within the United States. Practitioners may determine enrollment fees for specific clients under various Tricare plans by accessing the following website and menu options. Enrollment Fees, http://www.tricare.mil/my benefit/home/overview/Enrollment/ EnrollmentFees? (last visited on May 22, 2009).
9. See the three preceding footnotes for directions to websites to assist unremarried former spouses to make their personal selection of which Tricare plan best suits their needs and budget. Customer service representatives at Tricare service centers are also available to advise clients on choosing a Tricare option that is best for them.
10. CHCBP enrollment fees are posted online. Continued Health Care Benefits Program Enrollment and Coverage, http://www.humana-military.com/south/bene/ TRICAREPrograms/chcbp-enrollment.asp (last visited May 25, 2009).
11. 10 U. S. C. § 1078a (e) (2008).
12. Humana Military, http://www.humana-military.com/south/bene/tools- resources/handbooks/cost-summary/std-and-extra.asp (last visited June 2, 2009).
13. Id.
14. Catastrophic Cap, http://www.humana-military.com/south/bene/tools- resources/handbooks/cost-summary/cat-cap. asp (last visited June 2, 2009).
15. Tricare Pharmacy Program Costs, http://www.humana-military.com/south/ bene/toolsresources/handbooks/cost-summary/pharmacy.asp (last visited June 2, 2009).
16. Tricare Mail Order Pharmacy, http://www.tricare.mil/mybenefit/ ProfileFilter.do; jsessionid= K14J61yhnyKKYzhPN0XT5bbvDrd2G!SmtT3Kysx4JjLsqhkTK4k0!1696767524? puri=%2Fhome%2FPrescriptions%2FFillingPrescriptions%2FTMOP (last visited June 2, 2009).
17. Express Scripts, http://member.express-scripts.com/dodCustom/welcome.do (last visited June 2, 2009).
18. DEERS is a Department of Defense database that contains the names, Social Security numbers, addresses, and eligibility category of anyone who is eligible to receive Tricare benefits. Information on eligible participants can be verified by contacting DEERS (http://www.humana-military.com/south/bene/tools- resources/handbooks/Std-Extra/updating-DEERS.asp), a regional Tricare managed-care support contractor (http://www.tricare.mil/contactus/), a Tricare Service Center located at most major military installations; or the nearest uniformed services personnel office (ID card facility). While Tricare beneficiaries may make address changes, in order to add, delete, or change the status of a Tricare beneficiary, the military sponsor may need to submit proper documents, such as a marriage certificate, divorce decree, and/or birth certificate. Additional avenues in determining DEERS status or to update information, see below:
19. Visit a local uniformed services personnel office. RAPIDS Site Locator, http://www.dmdc.osd. mil/rsl (last visited May 25, 2009).
20. Contact the Defense Manpower Data Center Support Office (DSO) at 1-800-538-9552.
21. Fax address changes to DEERS at 1-831-655-8317.
22. Mail the address change to the Defense Manpower Data Center Support Office, Attn: COA, 400 Gigling Road, Seaside, CA 93955-6771.
23. DEERS, http://www.tricare.osd.mil/deers (last visited May 25, 2009).
24. The CHCBP is managed by a DoD Contractor, Humana Military Health Care Services, Inc., Attn: CHCBP, PO Box 740072, Louisville, KY 40201. Its toll-free number is 1-800-444-5445. More contact information about the CHCBP is available through the website at www.humana-military.com.
25. 10 U. S. C. § 1076a (k) (2008).
26. 10 U. S. C. §§ 1076c (b), (j) (1).
27. Neither 10 U. S. C. § 1076a nor § 1076c specifically provide for former spouse dental coverage. Both statutes, § 1076a (k) and § 1076c (b), (j) (l), refer back to 10 U. S. C. § 1072 (2) for the definition of "dependent", but specifically omit reference to §§ 1072 (2) (F) - (H) within that definition. Notable is that § 1072 (2) (F) - (H) are the definitions of former spouses who are eligible for postdivorce Tricare benefits.
28. Peter Cushing, The Ten Commandments of Military Divorce: Representing the Nonmilitary Spouse (pt.1), Fla. B. J. Jul.-Aug. 1995, at 66.
29. Cushing, Supra Note 1, at 84.
30. Marshal S. Willick, Military Retirement Benefits in Divorce: A Lawyer's Guide to Valuation and Distribution 133-140 (1998).
31. Mark E. Sullivan, The Military Divorce Handbook, A Practical Guide to Representing Military Personnel and Their Families 236-249, 522 (2006).
32. This short history of the development of military health care for families is taken from the Tricare website. History of Tricare, http://www.tricare.mil/mybenefit/ProfileFilter.do;jsessionid= KFKR4rZPxjgh3LrS71nBTVHG2xVv320SG9yFJqXdvr2K5QyT1qT7! 1229555621 ? country=United+States&zipCOde=85050&plan=TRICARE+Prime&status= Retired+Service+ Member&puri=%2Fhome%2Foverview%2FWhafIsTRICARE%2FHistory (last visited May 25, 2009).
33. Id.
34. 453 U. S. 210 (1981).
35. 10 U. S. C. § 1408 (2008).
36. H. R. Rep. No. 97-749, at 165-166 (1982) (Conf. Rep.), reprinted in 1982 U. S. C. C. A. N. 1569-1571.
37. 10 U. S. C. § 1072 (2) (F).
38. Id. at § 1072 (2) (G).
39. Id. at § 1072 (2) (H).
40. Such 20/20/15 unremarried former spouses cannot be enrolled in both Tricare and CHCBP. (See 10 U. S. C. § 1078a (b) (3) (C) and 32 C. F. R. § 199.20 (d) (1) (iii) (C) (2009) for eligibility for enrollment.) Once the one-year period of Tricare coverage ends under § 1072 (2) (G), then a 20/20/15 former spouse may enroll in the CHCBP under 10 U. S. C. § 1078a (g) (1) (C) and 32 C. F. R. § 199.20 (d) (4) (i) (C), provided it is done within sixty days of the end of his or her Tricare coverage.
41. 10 U. S. C. § 1078a (g) (4) ;
42. C. F. R. § 199.20 (d) (6) (iv).
43. What is Tricare?, http://tricare.mil/mybenefit/ProfileFilter. do;jsessionid=KbCFDfsT vmQq3nKQh94q6QJ2s3vyvQQT9LT2qhJn7Tcz756kfQpW!1696767524? puri=%2Fhome%2 Foverview%2FWhatIsTRICARE (last visited May 25, 2009).
44. Id.
45. To see what types of medical services are covered under Tricare, go to the Tricare website, which offers an "A-Z Index" of covered medical services available to Tricare beneficiaries. Covered Services, http://tricare.mil/mybenefit/home/Medical/IsItCovered.jsp (last visited May 25, 2009).
46. 10 U. S. C. § 1408 (c).
47. 10 U. S. C. §§ 1448, 1450.
48. 10 U. S. C. § 1072 (2) (FHH) (2008) ;
49. C. F. R. § 199.3 (2007).
50. 10 U. S. C. § 1078a (2008) ;
51. C. F. R. § 199.20.
52. 10 U. S. C. § 1072 (2) (F) ;
53. C. F. R. § 199.3 (b) (2) (i) (F) (1).
54. 10 U. S. C. § 1072 (2) (G) ;
55. C. F. R. § 199.3 (b) (2) (i) (F) (2) (i).
56. 10 U. S. C. § 1072 (2) (H) ;
57. C. F. R. § 199.3 (b) (2) (i) (F) (2) (ii) & (iii).
58. There is a confusing era (January 1, 1985, to September 29, 1988) for determining how long 20/20/15 former spouses would be allowed Tricare under 10 U. S. C. §§ 1072 (2) (GMH). Under §§ 1072 (2) (G) - (H) the break-point used for making this determination was whether the final decree of divorce, dissolution, or annulment occurred before April 1, 1985. If the 20/20/15 rule could be satisfied in a divorce that occurred prior to April 1, 1985, then the 20/20/15 former spouse would be treated identically to a 20/20/20 former spouse. For those 20/20/15 spouses with final decrees occurring on or after April 1, 1985, Congress allowed for a phase-out of former spouses medical benefits that were provided before September 29, 1988. For example, a 20/20/15 former spouse whose decree of divorce was entered on or after April 1, 1985, but before September 29, 1985, was allowed Tricare coverage until December 31, 1988, or for two years from the date of the divorce, whichever was later.
59. See 32 C. F. R. § 199.3 (b) (2) (i) (F) (2) (ii). Congress further required DoD under 10 U. S. C. § 1086a to provide for a conversion health policy to be made available to those 20/20/15 former spouses, who would no longer receive Tricare coverage because their final decree occurred on or after April 1, 1985. Later, and after the CHCBP became available for 20/20/15 former spouses, Congress by section 4408 (c) of Pub. L. 102-484 prohibited any eligible 20/20/15 former spouse from being covered under both a § 1086a "conversion policy" and the CHCBP under 10 U. S. C. § 1078a. Even though the transition period for the 20/20/15 former spouses have now long passed by more than twenty years, the transition-era provisions still appear in 32 C. F. R. § 199.3 (b) (i) and often confuse former spouses, family-law practitioners, and Tricare administrators. It remains important, however, to be able to determine whether a 20/20/15 former spouse meets the criteria for 10 U. S. C. § 1072 (2) (G) or is more properly to be placed under 10 U. S. C. § 1072 (2) (H) as those former spouses, who are § 1072 (2) (G) spouses, will also qualify for Tricare for Life when he or she becomes eligible for Medicare, Part A, at age sixty-five. (See subsequent discussion of Tricare for Life in this article.) As many of those former spouses who were divorced before April 1, 1985, and during that transition era of two decades ago are only now becoming of Medicare age, it is necessary to inform them they may also now be eligible for Tricare for Life.
60. This strategy is discussed in detail in Wiluck, supra note 25, at 137-38.
61. For example, even a spouse who is pregnant at the time of a divorce loses her maternity care as of midnight on the date a final decree of divorce is entered. Why not consider extending the case through an interlocutory order? At least within the Department of the Navy, its regulations reference that health care to a spouse will continue, even in Navy military treatment facilities for a spouse who may be under an interlocutory order or decree of separate maintenance. Simply delaying entry of a final decree until after the birth of the child would ensure the nonmilitary spouse had no break in her maternity care.
62. See 32 C. F. R. § 728.31 (c) (4). By analogy, this would also apply to treatment of far more serious illnesses, such as cancer, heart conditions, or other life-threatening diseases or illnesses.
63. See 10 U. S. C. § 1084 (providing that an administrative determination by the administering Secretary of the Uniformed Service as to eligibility for medical benefits is conclusive and may be changed only because of new evidence, for good cause, or fraud).
64. See 18 U. S. C. § 1001 (2008).
65. There appears to be no support for the argument that a former spouse could qualify under the 20/20/20 or 20/20/15 rules by "tacking" the periods of two or more marriages to different military sponsors in order to qualify. However, there is certainly an equitable argument that a former spouse should be allowed to tack two or more marriages to the same military sponsor in order to qualify under the 20/20/20 or 20/20/15 rules. Neither the statute, 10 U. S. C. § 1072 (2) (FHH) nor regulations, 32 C. F. R. § 199.3 (b) (i), address this situation either way. Certainly if it were to occur, and no doubt it has, the attorney representing the nonmilitary former spouse should ensure the final decree has a special finding of fact that judicially couples the two periods of the two marriages and declares that the parties are to be considered as married for the total time of their multiple engagements. Otherwise, the attorney will by default defer that conclusion to an administrative person, who may see no basis in the statute or the regulations to couple the two periods.
66. Considering that members of the uniformed services are stationed all over the world, it is a common occurrence that soldiers, sailors, airmen, and marines take local foreign wives during their overseas assignments. Some leave them (often without benefit of divorce) at the time they are reassigned, and others take their foreign spouses to their next assignment. Some will enroll the foreign spouse into the DEERS system, whereas others will never let the military know of their local marriage, despite regulations and orders to the contrary. Bigamy among members of the uniformed services is much less than it once was, but the offense regularly arises as a military justice matter. Because of translation and acceptance issues with foreign marriages and civil certificates, many servicemembers will opt to have another "state side" wedding that provides them a more acceptable document to present to government agencies. It is, however, a second marriage, and now the military sponsor has been married twice, even if to the same servicemember. For the family-law practitioner, the problem becomes which of the marriage inception dates will be offered as the date from which the 20/20/20 or 20/20/15 rules will be used to qualify under the thresholds? Once again, this is where the final decree can solve that question very easily by a special finding of fact as to the inception date of the marriage and the period of time it has covered.
67. In practice, do not confuse an administrative staffer reviewing the final decree by using the valuation date in place of the legal date of divorce. Whenever a valuation date is earlier than the actual entry of a final decree of divorce, make it clear that the valuation date is only being used to determined marital property issues and should not be used by any person or agency in determining eligibility for former spouse benefits.
68. See 10 U. S. C. subtitle A, pt. II, ch. 71 for various statutes used to determine regular military retired pay, and 10 U. S. C. subtitle E, pt. II, ch. 1223 for nonregular (e.g., reserve or National Guard) military retirement. Outside a very small number of military retirement personnel specialists and a very few federal attorneys, the knowledge, experience, and skills are not readily available to accurately determine what is creditable service, especially in cases where a servicemember has gone back and forth in pursuing a regular versus a nonregular retirement.
69. 32 C. F. R. § 199.3 (b) (2) (i) (C) ;
70. U. S. Dep't of Def., Fin. Mgmt. Reg. 7000.14-R, vol. 7B, ch. 29, § 290205
71. Former Spouse Payments from Retired Pay (2009), http://www.defenselink. mil/comptroller/fmr/07b/07b-29.pdf.
72. For regular retirements, which is the usual retirement of servicemembers with twenty or more years of active duty service, "creditable years of service" are determined under 10 U. S. C. § 1405.
73. For nonregular retirement, which is the typical retirement of members of the Reserve Component (reserves or National Guard), "years of creditable service" is determined under 10 U. S. C. § 12732, and is based upon how many Reserve Credit Points are earned during their military career.
74. See Dep't of Def., Instr. 1215.07, Service Credit for Reserve Retirement (2005).
75. A useful document for the family law practitioner to obtain by discovery is the servicemember's DD Form 215, "Discharge Certificate from the Armed Forces." This single document will provide the recorded dates of creditable service of the military member for determining regular retirement.
76. See 10 U. S. C. § 12732 (a) (2) (2008).
77. Another useful document for the family law practitioner to obtain during discovery is the "Reserve Point Summary Sheet", which is an official record of the Reserve Component member's personnel file that shows "year by year" how many points were earned. This document is somewhat analogous to the DD Form 214, "Discharge Certificate from the Armed Forces", for the servicemember pursuing a regular retirement. For an excellent and detailed discussion of the National Guard and reserve retirements
78. see Sullivan, supra note 26, § 8.03, at 415-18.
79. Compare how "years of service" under 10 U. S. C. § 1405 are figured for determining eligibility for a regular retirement with how nonregular retirement is determined for members of the Reserve Components under 10 U. S. C. § 12733. Generally speaking, periods of time a Reserve Component servicemember spends on active duty can be converted to "creditable service" for determining eligibility for a nonregular retirement; however, time spent in the Reserve Component that was not considered "active duty" may not be considered in determining eligibility for a regular retirement. In the case of the Reserve Component member seeking to qualify for a regular retirement, the Reserve Credit Points will only be used to determine the number of years of service for determining military retired pay as well as years for longevity of service for determining their monthly retirement benefit. On the other hand, for a nonregular retirement, time spent on active duty by a reservist will convert to points and can be used to determine a creditable year of service in the reserves for purposes of determining retirement eligibility.
80. 10 U. S. C. §§ 1072 (2) (FHH) (2008).
81. See id.;
82. C. F. R. § 199.3 (b) (2) (i) (2007). There appears to be no exception for the former military spouse who upon a first divorce qualifies under the 20/20/20 or 20/20/15 rules, but then remarries the original military sponsor. Note that upon the event of their second marriage, the DEERS enrollment would change from an unremarried former spouse under §§ 1072 (2) (FMH) to a spouse under § 1072 (2) (A). DEERS would apply the 20/20/20 or 20/20/15 rules, effective as of the second marriage date, and most likely the former spouse would then not be eligible for Tricare coverage as a qualified spouse under §§ 1072 (2) (F) - (H). Obviously, a strong equitable case can be made to DEERS and Tricare that the former spouse should receive the same health care benefits upon the second divorce as he or she received upon the first. However, the issue of entitlement to a federal benefit is a legal issue, not an equitable one, and federal statutes are often applied literally by the government and courts. As previously suggested, a special finding of fact that the nonmilitary spouse was married to the military sponsor for a combined period of twenty years, and of which twenty of those years were concurrent with creditable military service may aid the former spouse in recapturing his or her Tricare coverage upon the second divorce from the military sponsor.
83. 10 U. S. C. §§ 1072 (2) (FHH) (2008). There is nothing in either this statute or the implementing regulation, 32 C. F. R. § 199.3, that suggests an "annulment" will allow for reinstatement of Tricare eligibility for a previously qualified former spouse. There is a subsection of the regulations, at 32 C. F. R. § 199.3 (g), which discusses reinstatement of CHAMPUS eligibility, but there is no mention of "annulment" in that subsection. Under both the enabling statute and implementing regulations, the legal terms "divorce", "dissolution", and "annulment" are all treated the same.
84. Admin. & Civil Law Dep't, The Judge Advocate Gen's Legal Ctr. & Sch., U. S. Army, Uniformed Services Former Spouse's Protection Act Guide 24 (2005), available at http://www.dtic.mil/cgi-bin/GetTRDoc?AD= ADA452505&Location=U2&doc=GetTRDoc. pdf.
85. 10 U. S. C. §§ 1072 (2) (FHH) (2008).
86. See 32 C. F. R. § 199.3 (g).
87. See Willick, supra note 25, at 137.
88. 10 U. S. C. §§ 1072 (2) (FHH) (2008).
89. There is legislation before the U. S. Senate to allow members of the Reserve Component who have satisfied their twenty years of creditable service, but are not yet age sixty, and, thus, eligible to draw their retired pay and enroll in Tricare coverage, to be allowed to enroll in Tricare Standard for a premium as soon as they satisfy their twenty-year requirement. Such reservists and National Guardsmen are referred to as "gray area reservists", and there are approximately 225, 000 Reserve Component members who would be affected by the legislation. The legislation is Senate bill S. 731 and is being sponsored by Senator E. Benjamin Nelson (D-NE). Presently it has twenty cosponsors in the Senate, including Senator Lindsey Graham (R-SC), who is the ranking Republican on the Senate Armed Services Committee. It also has the support of many special-interest military organizations, including the Military Officers Association of America (MOAA).
90. See MOAA, http://capwiz.com/moaa/issues/bills/(last visited May 26, 2009). The legislation was reported in the Air Force Times as being likely to pass and become part of the 2010 Defense Authorization Act. A. F. Times, Apr. 27, 2009, at 6. Status of the legislation, including the text of the bill is available at http://thomas.loc.gov/cgi-bin/query/z?c111:H. R.2647. Unfortunately, the legislation in its present form excludes unremarried former spouses as it does not include subsections (F), (G), or (H) of 10 U. S. C. § 1072 (2) in defining the term "dependents."
91. 10 U. S. C. § 12733 (2008).
92. Perhaps the easiest method of applying the 20/20/20 and 20/20/15 rules for members of the Reserve Component is to obtain the most recent copy of their Reserve Credit Point Summary Sheet, which lists the years of service in the uniformed services and what points, if any, were earned for each year of participation. Simply overlay the months of marriage that are concurrent with those years of service and determine how many months/years of the marriage did occur for each of the military sponsor's "good years" (i.e., creditable years) of service. As long as there are 240 months, or twenty years, of marriage concurrent with those "good years", then the nonmilitary spouse can claim them as qualifying under the 20/20/20 rule. The same analysis would apply to a case under the 20/20/15 rule, except that fifteen years, or 180 months, of marriage would need to be found as concurrent with any of the twenty "good years" of service.
93. A "Gray Area Reservists" is a term used to describe a member of the Reserve Component (reserves or National Guard) who has received notification that he or she has satisfied the minimum twenty years of creditable service to qualify for a nonregular military retirement, but who has not yet reached age sixty in order to commence receiving retired pay. The "gray area" is, therefore, the period between the issuance of the "20 Year Letter" from the military member's reserve personnel headquarters and when the military member has his or her sixtieth birthday or starts to draw retired pay. The military member may continue to accumulate additional creditable years of service well after the issuance of the "20 Year Letter." Once again, this ability to achieve additional years of service for retirement at the time the parties are contemplating divorce may open the possibility of negotiating the deferment of entering a final decree or choosing to pursue an action that will not result in terminating the marriage.
94. By law, the one year of Tricare coverage available to the 20/20/15 former military spouse who divorced on or after April 1, 1985, must be used within one year of the entry of the final decree.
95. See 10 U. S. C. § 1072 (2) (H) (2008) ;
96. C. F. R. § 199.3 (b) (2) (i) (F) (2) (iii) (2009).
97. This could change for the 20/20/15 former spouse if Senate bill S. 731, discussed earlier, is changed to allow unremarried former spouses to also become eligible for Tricare Standard.
98. For example: a forty-five-year-old Reserve Lieutenant Colonel (0-5) received his 20 Year Letter, signifying that he has achieved his twenty years of creditable service to qualify for a nonregular retirement. His forty-four-year-old wife, whom he married right out of high school, will easily satisfy the 20/20/20 rule and be able to receive Tricare, but only when her military sponsor reaches age sixty. The parties desire an amicable divorce, but the wife has no available health care to bridge the next fifteen years until she can benefit from Tricare. Prior to the entry of a final decree of divorce, the military sponsor could volunteer to serve a period of at least thirty days of active duty, and thereby allow for the soon-to-be former spouse to be enrolled in DEERS and thus covered under Tricare for at least one day of his service. (Under 10 U. S. C. §§ 1076 and 1077, a dependent becomes entitled to Tricare after the military sponsor has served thirty days of active duty.) If the timing of the entry of a final decree can occur while the military sponsor is serving the period of active duty, then the former spouse could qualify for the CHCBP transitional coverage. If the former spouse also receives a portion of the Reserve Retired Pay or has former spouse beneficiary status under the SBP, then he or she will also be eligible for unlimited CHCBP coverage. The former spouse can then use the CHCBP to provide "bridge" health care coverage until the sponsor reaches age sixty, when she can enroll for Tricare coverage as a 20/20/20 former spouse. It is significant that the former spouse will also later be eligible at age sixty-five for Tricare for Life (TFL). The same would apply to the 20/20/15 former military spouse, except that he or she would not be able to change to Tricare when the military sponsor reached age sixty, but could continue coverage under the CHCBP for as long as requested. The former spouse must remember that remarriage at any age will make him or her ineligible for Tricare. Conversely, the 20/20/20 and 20/20/15 former military spouse may continue to qualify for unlimited coverage under the CHCBP, provided the remarriage occurred after the former spouse reached age fifty-five.
99. See 32 C. F. R. § 199.3 (b) (2) (i) (D). Medicare eligibility does not always mean beneficiaries lose their eligibility for Tricare coverage. The following three examples are taken from a website sponsored by the Department of the Army, stating when a Tricare beneficiary can have dual Tricare and Medicare eligibility:
100. Beneficiaries who become eligible for Medicare Part A on the basis of age sixty-five and enroll in Medicare Part B continue to be eligible for Tricare, secondary to Medicare (e.g., Tricare for Life).
101. Family members of active-duty servicemembers who are also eligible for Medicare, for any reason, retain eligibility for Tricare Prime, Extra, or Standard, whether or not they purchase Medicare Part B. However, the purchase of Medicare Part B, in this instance, is recommended. If they do not enroll in Medicare Part B as soon as they are eligible, the cost of Medicare Part B may increase ten percent for each twelve-month period that they could have been enrolled but were not. Please contact Medicare for more information on Part B enrollment.
102. Beneficiaries under age sixty-five who are entitled to Medicare Part A because of disability or end-stage renal disease and have purchased Medicare Part B retain their eligibility for Tricare Prime, Extra, or Standard until they turn sixty-five, when they become only eligible for Tricare for Life. Beneficiaries should notify their military personnel office or DEERS if they become eligible for Medicare due to a disability or end-stage renal disease.
103. Tricare Eligibility, http://www.hooah4health.com/deployment/benefits/ tricare.htm (last visited May 26, 2009).
104. Medicare coverage begins on the first day of the month in which beneficiaries become eligible. However, if the sixty-fifth birthday falls on the first day of the month, then Medicare Part A eligibility begins on the first day of the preceding month-and eligibility for Tricare Prime, Extra, or Standard ends. If beneficiaries are not eligible for Medicare Part A when they turn sixty-five, a Social Security Administration "Notice of Disallowance" must be submitted to the uniformed services responsible for issuance of identification cards so that a new ID card showing Tricare eligibility can be issued. Please visit www.medicare.gov or call the Social Security Administration at 1-800-772-1213 (TTY/TDD: 1-800-325-0778) for more information about Medicare Parts A and B.
105. PGBA, LLC v. United States, 389 F.3d 1219, 1221 (2004).
106. In 1997, Congress authorized a pilot program, referred to as Tricare Senior Prime (Pub. L. 105-33, § 4015 (a), 111 Stat. 337), which was codified at 42 U. S. C. § 1395ggg under the title, "Medicare Subvention Demonstration Project for Military Retirees." In 1999, the "Keep Our Promise to America's Military Retirees Act" was introduced as H. R. 2966 into the U. S. House of Representatives, which (if passed) would have allowed military retirees an option to enroll in the Federal Health Care Benefits Plan, or alternatively continue to have access to Tricare, which would become a second payer to Medicare. This legislation did not pass. Later in 2002, Tricare for Life was enacted as part of the 2001 National Defense Authorization Act, and the authority for the earlier Senior Tricare Prime demonstration project was repealed by Pub. L. 107-314, § 713, 116 Stat. 2589 (2002).
107. In Schism v. U. S., 19 F. Supp. 2d 1287 (N. D. Fla. 1998), two military retirees filed suit against the United States alleging breach of promise for being denied free access to lifetime health care and for denial of due process. The case was decided in the district court by granting the defendant's motion for summary judgment. It was then appealed to the U. S. Court of Appeals for the Federal Circuit, and was there reversed and remanded. 239 F.3d 1280 (Fed. Cir. 2001). The United States filed to have the Federal Circuit Court of Appeals withdraw its earlier opinion, which was granted. 252 F.3d 1354 (Fed. Cir. 2001). Upon a rehearing en banc, the Federal Circuit Court of Appeals issued a forty-eight-page opinion affirming the district court's grant of summary judgment to the United States. 316 F.3d 1259 (Fed. Cir. 2002). The plaintiffs writ for certiorari in the United States Supreme Court was denied. 539 U. S. 910 (2003).
108. Pub. L. No. 106-398, § 712, 114 Stat. 1654 (2000).
109. For details on Tricare for Life and what it offers as a Medicare supplement, please visit Tricare For Life, http://www.tricare.mil/mybenefit/ ProfileFilter.do;jsessionid=KLlDxWyFlN PKx8rKjT0k4B JLZlmQvX5Gt2nGXfy v 1 HdfDT3G0wGG 1268511270?&puri=%2Fhome%2Fo verview%2FPlans%2FForLife.
110. Tom Philpott, Here Comes Tricare for Life, A. F. Mag., Apr. 2001, at 38.
111. For example, in 2009 the Medicare Part B premium is $96.40 per month for those making under $85, 000 (single) or $170, 000 (married couple). Center for Medicare Advocacy, Inc., http://www. medicareadvocacy. Org/FAQ-MedicareSummary.htm#B (last visited May 26, 2009). There is also the $3, 000 catastrophic cap that Tricare offers, which will serve to pay all out-ofpocket expenses above that level that occur each year.
112. Humana-Military, http://www.humana-military.com/south/bene/tools- resources/handbooks/cost-summary/tfl.asp (last visited on June 2, 2009).
113. There is an excellent Tricare for Life slideshow available at the Navy Medical Center, Portsmouth, VA. NCMP, http://www-nmcp. med.navy.mil/Tricare/ NMCP-Tricare-For-Life-Brief.ppt. The presentation provides the basics of TFL coverage and how Tricare and Medicare, Part B are used to supplement one another.
114. 10 U. S. C. § 1072 (2) (F) (2008).
115. Id. at § 1072 (2) (G).
116. Id. at § 1072 (2) (H).
117. The six areas are (1) Massachusetts, Rhode Island, and portions of northern Connecticut; (2) southeast Texas and Louisiana; (3) Maryland, Washington, D. C., and parts of Virginia, West Virginia, and Pennsylvania; (4) Maine, New Hampshire, Vermont, and northeastern New York; (5) the Puget Sound area of Washington; and (6) New York City, New Jersey, southeastern Pennsylvania, and western Connecticut. USFHP, http://www.usfhp. com (last visited May 26, 2009).
118. Id.
119. 10 U. S. C. §§ 1078a (b) (3), (g) (4) (2008) ;
120. C. F. R. §§ 199.20 (d) (1) (iii), (6) (iv) (2009).
121. See 10 U. S. C. §§ 1072 (2) (F) (ii), (G) (ii), which provides that coverage under Tricare is not available to such former spouse if he or she is enrolled in an employer-sponsored health care plan.
122. See 32 C. F. R. § 199.20 (h) and 32 C. F. R. § 199.8, which makes the CHCBP the secondary payer for claims if another policy exists to provide coverage. Thus the CHCBP would pay for claims that involved the excluded medical condition, and the other plan would "first pay" for all other claims. A former spouse should be aware that under no circumstances would the CHCBP pay for a course of treatment, hospital visit, or other claim if it would not have honored the claim as the only insurance coverage involved.
123. Note that 20/20/20 and 20/20/15 former spouses identified as Tricare eligible under 10 U. S. C. §§ 1072 (2) (FHH) are not eligible for CHCBP under 10 U. S. C. § 1078a (b) (3) (C).
124. 10 U. S. C. § 1078a (a) states: The Secretary of Defense shall implement and carry out a program of continued health benefits coverage in accordance with this section to provide persons described in subsection (b) with temporary health benefits comparable to the health benefits provided for former civilian employees of the Federal Government and other persons under section 8905a of title 5.
125. 5 U. S. C. § 8905a (2008). Note that § 8905a at (f) (1) refers to 5 U. S. C. § 8901 (10) for the definition of a "Former Spouse." There is a striking similarity between the scope of coverage and eligibility for former spouse coverage under 5 U. S. C. § 8905a and 10 U. S. C. § 1078a (b) (3).
126. National Defense Authorization Act of 1993, 10 U. S. C. § 1078a.
127. Prior to the CHCBP, Congress had provided for a Conversion Health Policy. 10 U. S. C. § 1086a. 10 U. S. C. § 1078a repealed the Conversion Health Polices in favor of the Continued Health Care Benefits Program under 10 U. S. C. § 1078a, which began on October 1, 1994.
128. 32 C. F. R. § 199.20 (r).
129. 10 U. S. C. § 1078a (b) (3) (B) (2008) ;
130. C. F. R. § 199.20 (d) (1) (iii) (2009).
131. 10 U. S. C. § 1078a (g) (1) (C) ;
132. C. F. R. § 199.20 (d) (6) (iii).
133. See 10 U. S. C. § 1078a (a).
134. Compare with 5 U. S. C. § 8901 (10) and § 5 U. S. C. 8905 (c) (1), 10 U. S. C. § 1078a (g) (4).
135. See generally Cushing, supra notes 1, 24;
136. Willick, supra note 25;
137. Sullivan, supra note 26. A survey of various articles and CLE presentations were made by the author in preparing this article. See Michael R. Walsh, Florida Proceedings After Dissolution of Marriage § 3.80 (8th ed. 2007) ;
138. Mary J. Bradley, Calling for a Truce on the Military Divorce Battlefield: A Proposal to Amend the USFSPA, 168 Mil. L. Rev. 40, 68 nn. 143, 144 (2001) ;
139. Evan B. Brandes, Divorce and the Military Member: The Survivor Benefit Plan and Ancillary Benefits, 7 No. 12 N. Y. Fam. L. Monthly 3 (2006) ;
140. Melissa DeLacerda, Oklahoma Family Law, 4 Okla. Prac. Okla. Fam. L. 16:7, § 1 (2009) ;
141. Dalma Grandjean, Enforcement Options, Collecting an Awarded Share of the Pension, 28 Fam. Advoc. 36, 39 (Fall 2005) ;
142. Dalma C. Grandjean & Karen Riestenberg Brinkman, Fair and Equitable Asset and Liability, 38118 NBI-CLE 41, 74-75 (2007) ;
143. C. Page Hamrick III, Failure to Secure Adequate Legal Assistance in Handling Qualified Domestic Relations Orders, 33787 NBI-CLE 171, 192 (2006) ;
144. C. Page Hamrick III, Fairly Divide Assets and Liabilities, 27459 NBI-CLE 90, 126 (2005) ;
145. Mark Sullivan, Questions Abound on Military Pensions, 24 Fam. Advoc 44, 46 (Fall 2001) ;
146. Paul C. Taylor & Laura J. Taylor, Evaluating the Financial Cost of an Involuntary Military Separation, J. Legal Econ., 1, 12-14 (Feb. 2007).
147. National Defense Authorization Act for Fiscal Year 1993, Pub. L. 102-484, § 4408, 106 Stat. 2315, 2708 (1992).
148. H. R. Rep. No. 102-527 (1992), at 245-246, reprinted in 1992 U. S. C. C. A. N. 1636, 1669-1670.
149. Id.
150. Lowe v. Schwartz, 738 N. W.2d 63 (S. D. 2007). This case involved two parties attempting to arrange for the former spouse's long-term health care by using the CHCBP. The former spouse wanted to modify an earlier award in the divorce so as to obtain a survivor's annuity in order to further qualify her for unlimited CHCBP coverage. The decision offered some discussion of the CHCBP and what was necessary to qualify a former spouse for unlimited coverage. Ultimately the case was decided on procedural issues and did not resolve any of the factual or legal questions about how the former spouse could be qualified for unlimited coverage under the CHCBP.
151. U. S. Court of Federal Claims Home Page, http://www.uscfc.uscourts.gov.
152. Defense Office of Hearings and Appeals Home Page, http://www.dod.mil/ dodgc/doha.
153. Defense Office of Hearings and Appeals, Tricare/CHAMPUS (1997), http://www.dod. mil/dodgc/doha/tricare.html.
154. See 10 U. S. C. § 1078a (g) (4).
155. See 32 C. F. R. § 199.20.
156. See Continued Health Care Benefit Program, http://www.humana-military. com/south/bene/TricarePrograms/chcbp. asp (last visited May 26, 2009) ;
157. Humana Military Healthcare Services CHCBP Period of Coverage, http://www.humana-military.com/chcbp/coverage.htm (last visited May 26, 2009).
158. The conversation occurred on July 10, 2007; however, as a condition to discussing the availability of the CHCBP to provide long-term-care coverage to a former spouse, the staff attorney requested nonattribution. The staff attorney offered that it was not his responsibility to advise any entity or person other than the assistant secretary of defense for health affairs and his staff. In referring to the enabling statute (10 U. S. C. § 1078a (g) (4)) and the implementing regulations (32 C. F. R. § 199.20 (6) (iv)), the staff attorney made this comment: "The statute and the regulation speak for themselves and are sufficiently clear concerning unlimited coverage. For those qualified former spouses who meet the statutory criteria to request unlimited CHCBP coverage, it is to be made available to them for as long as it is requested." (Source not disclosed due to promise of nonattribution.)
159. The conversation occurred with this author on July 23, 2007, and nonattribution was once again requested as a precondition to a discussion of "unlimited" former spouse coverage under the CHCBP. The team leader generally acknowledged that the open source Tricare literature focused more on the transitional coverage aspects of the CHCBP and that the handbook did not encourage qualified individuals to seek unlimited coverage. This author directly asked if there was "any policy or other prohibition on allowing a qualified former spouse to use the unlimited CHCBP coverage as their long-term health care?" The answer was somewhat indirect, but ended in a reaffirmation that "the statute and regulations allow for coverage for certain qualifying former spouses for as long as it is requested." This author sensed some reluctance in the team leader wanting to use "long term" in the same sentence with "CHCBP", but eventually there was agreement that the statute clearly made for that possibility.
160. The referenced discussions occurred over the period of June through August 2007, and on May 28, 2009. For any question beyond what was in the CHCBP Handbook, this author was instructed to submit a request in writing.
161. With any customer service call center, knowledge and accurate advice is often "hit and miss", depending upon with whom you might speak at the time. Calling the CHCBP administrator is no different, and politeness and perseverance allows for a handsome payback in getting credible information. This author extends grateful and sincere appreciation to Ms. Lana Mattingly, a senior customer service supervisor for the CHCBP administrator, who graciously provided information and answered many questions about the CHCBP. So this author's best advice is to be polite, keep asking the hard questions, and politely ask to speak with someone knowledgeable and experienced in how the CHCBP works in the unlimited coverage mode!
162. This source is a personal acquaintance and former client of this author for over sixteen years. She has provided Tricare advice and counseling to thousands of individuals, including many former military spouses. She confessed that very little is known in the field about the CHCBP, beyond what appears in the CHCBP Handbook. She had not been provided more information about the unlimited CHCBP coverage for former spouses, other than what appears in the handbook. She pointed out that there was nothing in the handbook's table of contents or index about unlimited coverage, and unless you knew what you were looking for, most likely you would never find it. She advised that former spouses are generally told their CHCBP coverage is limited to thirty-six months of transitional coverage. No one is specifically informed about the availability of unlimited CHCBP coverage or what is required to qualify for it.
163. This author has assisted three former spouse clients since 2005 to extend their CHCBP coverage beyond their thirty-six months of transitional coverage to the unlimited coverage. Each has been required to document additional criteria for unlimited coverage and on occasion why coverage is still needed. On one occasion, this author assisted the client in responding to such an inquiry, and the client's letter pointed out that the statute (10 U. S. C. § 1078a (g) (4) (A)) simply allowed a qualified former spouse to "continue such coverage for as long as the former spouse may request." There is nothing in the statute or in the regulations that requires a qualified former spouse to do anything more than "request" that coverage continue. Providing a justification of why a former spouse might require or desire coverage does not appear in the statute or regulations.
164. Humana Military Healthcare Services CHCBP Period of Coverage, http://www.humana-military.com/chcbp/coverage.htm (last visited May 27, 2009).
165. Continued Health Care Benefit Program, http://www.humana-military.com/ chcbp/main. htm (last visited May 28, 2009).
166. Humana Military Healthcare Services CHCBP, http://www.humana-military. com/CHCBP/handbooktoc.htm (last visited May 28, 2009).
167. See id.
168. 10 U. S. C. § 1078a (2008) ;
169. C. F. R. § 199.20 (2009).
170. The CHCBP enrollment form is available both at the CHCBP website and directly from: http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2837. pdf.
171. Humana Military Healthcare Services CHCBP, http://www.humana-military. com/CHCBP/handbooktochtm (last visited May 28, 2009).
172. 32 C. F. R. § 199.20 (a).
173. Tricare Express Scripts is a mail-order pharmacy that can significantly reduce out-ofpocket prescription drug expenses. Tricare Mail-Order Pharmacy (TMOP) program, http://member.express-scripts.com/dodCustom/welcome.do (last visited May 28, 2009).
174. 32 C. F. R. § 199.20 (e) - (s) explains other provisions of Tricare that are applicable to the CHCBP beneficiary.
175. Upon an initial reading of the statute, there appears to be an eighteen month marriage requirement for unlimited CHCBP coverage. What the statute actually requires is that the former spouse was covered under Tricare at any time during the eighteen months before the date of divorce, dissolution, or annulment.
176. See 10 U. S. C. § 1078a (g) (4) (B) (ii) ;
177. C. F. R. § 199.20 (d) (6) (iv) (B) (emphasis added). Note, as well, that no period of the marriage must be concurrent with military service of the sponsor.
178. 32 C. F. R. § 199.20 (d) (6) (iii).
179. Id. at § 199.20 (d) (6) (iv).
180. The same discussion of unlimited coverage found in the CHCBP Handbook (pp. 23-24) is also posted at the Humana Military website, http://www.humana- military.com/CHCBP/coverage.htm. (last visited May 28, 2009).
181. 10 U. S. C. § 1078a (d) ;
182. C. F. R. § 199.20 (d) (4).
183. 10 U. S. C. § 1078a (c). Under subparagraph (c) (4), the statute provides, "In the case of a former spouse of a member or former member who becomes eligible for continued coverage under subsection (b) (3), the regulations shall provide appropriate notification provisions and a sixty-day election period under subsection (d) (3)." At 32 C. F. R. § 199.20 (d) (3) (iv), it provides: In the case of a former spouse of a member or former member who becomes eligible for continued coverage, the Third Party Administrator will notify the individual of eligibility for CHCBP when he or she declares the change in marital status to a military personnel office.
184. This scenario is all too common in military divorces as there is no incentive on the part of the military sponsor to update the DEERS upon divorce. Generally, the incentive arises only when the military sponsor remarries and a new military spouse enrolls in DEERS. At that point, to enroll the "new" spouse in the system, the military sponsor must produce evidence of the divorce from the previous spouse. It becomes obvious the former spouse has been receiving Tricare benefits since the divorce, to which he or she was not legally entitled. Active duty and retired members must periodically update and verify their dependents enrolled in DEERS, which most commonly occurs with the renewal of their dependent's military ID cards. If a dependent's military ID card has expired, it is subject to seizure at time of entry onto a military installation. This will typically result in the military sponsor being contacted and questioned as to whether the person with the ID card is a bona fide dependent or otherwise. Certainly a divorced military couple could collude to defraud and mislead the DoD by continuing to represent the former spouse as a current spouse and thus eligible for Tricare. In reality, they are "living on borrowed time." A few may slip past the gate, but, at some point, ugly things begin to happen. The cost of health care is expensive, and fraudulently obtaining health care can have the following results: (a) court-martial action of the military sponsor; or (b) prosecution by the U. S. attorney of either or both for conspiracy to defraud the government; (c) civil suits initiated to recover the costs of medical services provided to the former spouse; or (d) both the military sponsor (if retired) and the former spouse being barred from the military installation. These are not happy experiences and create an incredible burden on the former spouse.
185. See Dep't of Def., Instr. No. 1000.24, Confiscation of Fraudulent Identification (ID) Cards at Military Treatment Facilities (2003).
186. 32 C. F. R. § 199.3 (f) (2007).
187. Id. at § 199.20 (d) (4) (i) (C).
188. Estimates are that over 27 million Medicare Part D beneficiaries fall into the "Doughnut Hole." A cute name, but a horrible position to be in if one is poor and in desperate need of medications to cope with a serious medical condition. Upon reaching the Medicare Part D coverage limit of currently $2, 700, Medicare stops paying until the beneficiary incurs $4, 350 in out-ofpocket costs for covered drugs on the Part D formulary. The cost can be considerable as there is an initial $250 annual deductible, a twenty-five percent co-pay on the first $2, 700 of formulary drugs that are dispensed, followed by a $4, 350 exclusion where Medicare will not pay anything. By the time Part D starts paying again for catastrophic coverage (which will still require a five percent co-pay), the beneficiary has paid well over $5, 275 out of pocket. Medicare Part D-Calculating the Doughnut Hole, http://www.medicareadvocacy.org/PartD-DoughnutHole. htm (last visited June 1, 2009). Compare this to what would have been the client's annual CHCBP premiums of $3, 732 ($933 x 4), and he or she would have saved over $1, 500 just on their Part D drug coverage by having used their CHCBP prescription drug benefit instead of enrolling for Part D coverage, or alternatively using it as a supplement to Medicare. Those former military spouses, who have also been determined by the Social Security Administration as being disabled, may continue to receive double coverage under Medicare and the CHCBP, just like they could do under Tricare.
189. See 32 C. F. R. § 199.20 (h) (relating to "Double Coverage") ;
190. C. F. R. § 199.8 (d) (relating to the interfacing of Medicare and Tricare.)
191. 10 U. S. C. § 1078a (f) ;
192. C. F. R. § 199.20 (q).
193. 32 C. F. R. § 199.20 (a) ;
194. Tricare Standard and Extra, http://www.humana-military.com/south/bene/ TRICAREPrograms/standard-extra.asp (last visited June 1, 2009).
195. 32 C. F. R. § 199.20 (q) (1), (2).
196. Sullivan, supra note 26, at 522.
197. 10 U. S. C. § 1078a (e) (2008).
198. The enabling statute is clear that a military sponsor's stepchild living in the home is eligible for Tricare benefits under 10 U. S. C. §§ 1072 (2) (D), (6) (C) (2008).
199. It is not clear whether a former stepchild would be eligible for transitional coverage under the CHCBP once that child no longer resides in the military sponsor's household. This would certainly be the case in the event of a divorce, annulment, or dissolution. It would also be the case if it was an action for separate maintenance (i.e., where no divorce is granted), and the military sponsor and the nonmilitary spouse (and presumably his or her children from a prior relationship) no longer live in the same home. The argument that a. former stepchild should be eligible for transitional enrollment in the CHCBP can be found at 32 C. F. R. § 199.20 (d) (1) (ii). First, notice that the definition of child under 10 U. S. C. § 1072 (2) (D) is further defined at § 1072 (6) (C), and such definition does not distinguish a stepchild from any other child of the military sponsor. This statute serves to make any stepchild of the military sponsor, just like any other children of the marriage, eligible for Tricare coverage as long as the child resides in the household. When a divorce occurs and the stepchild is removed from the military sponsor's household, the operation of 32 C. F. R. § 199.3 (b) (2) (ii) (C) or (F) terminates the stepchild's eligibility for Tricare coverage, but 32 C. F. R. § 199.20 (d) (1) (ii) immediately makes that child eligible for transitional coverage under the CHCBP as the regulation does not specify what event ends Tricare coverage for that dependent. Certainly divorce serves to end the dependency relationship between the military sponsor and stepchild, and because that event causes the loss of Tricare coverage, the former dependent stepchild is then made eligible for enrollment in transitional CHCBP coverage. Perhaps because other less expensive health care is available to stepchildren, either through that child's noncustodial parent or by state-sponsored health care programs, the issue of coverage under the CHCBP does not often arise. But, in the event it does, and especially if more than one stepchild is involved, the former military spouse might request the CHCBP administrator to allow coverage under a CHCBP family plan policy. It would be sensible to certainly have one CHCBP family plan enrollment rather than multiple enrollments. Administratively, it would also be easier for the administrator to handle claims and payments.
200. 10 U. S. C. § 1072 (2) (E).
201. Grateful appreciation is given to Mark E. Sullivan for allowing the CHCBP flowchart to be included in this article.
202. 10 U. S. C. § 1078a (b) (3).
203. 32 C. F. R. § 199.20 (d) (1) (iii).
204. Recall the earlier discussion of a 20/20/20 or 20/20/15 former military spouse electing to waive coverage under Tricare and alternatively seeking coverage under the CHCBP. (It was an option that a former spouse client might wish to pursue to avoid the forfeiture provisions for remarriage (at any age) or for enrollment in double-coverage employer health care.) It was the purpose of the CHCBP enabling statute to provide health care coverage for former military spouses who were not already covered, and those who were already covered under 10 U. S. C. §§ 1072 (2) (F) - (H) were written out of the CHCBP statute. However, this author believes what was actually intended was that a former military spouse should not have simultaneous doublecoverage under both the Tricare and CHCBP statutes. So perhaps the better choice of words would have been "enrolled" and not "eligible" for this leg of the CHCBP criteria. This author recommends that a former military spouse wanting to forego Tricare benefits so as to be allowed to enroll in the CHCBP should submit the request in writing to the CHCBP administrator in order to receive a reliable response.
205. 32 C. F. R. § 199.20 (d) (6) (iii).
206. 32 C. F. R. § 199.20 (d) (6) (iv).
207. Those 20/20/15 former spouses who qualify for one year (365 days) of Tricare coverage after divorce under 10 U. S. C. § 1072 (2) (H) are then further eligible for up to thirty-six additional months of CHCBP coverage under 10 U. S. C. § 1078a (g) (1) (C) (ii), thus allowing for transitional health care benefits for up to forty-eight months. Of course, the first year will be under Tricare, and the following thirty-six months under the CHCBP with its much higher quarterly premiums.
208. This paragraph in the handbook is unnecessarily confusing. The actual implementing regulation at 32 C. F. R. § 199.20 (d) (6) (iii) is much easier to comprehend and apply. If the military sponsor is serving on active duty, then the thirty-six months of transitional coverage could be measured from the date the military sponsor departed service. The confusing language actually has very limited application and would pertain to an unremarried former spouse who divorced a military sponsor still on active duty, and still covered under TAMP. In such a case, the thirty-six months would be measured from the later of the date the military sponsor left active duty, or upon his or her losing TAMP coverage.
209. 10 U. S. C. § 1078a (g) (4) (2008) ;
210. C. F. R. § 199.20 (d) (6) (iv) (2009).
211. The CHCBP Handbook at 23-24, the statute at 10 (2009) U. S. C. § 1078a (g) (4) (B) (ii), and implementing regulation at 32 C. F. R. § 199.20 (6) (iv) (B), do not track one another as to what type (i.e., Tricare versus CHCBP) of health care coverage the former spouse had to have been under in the eighteen-month period preceding the divorce. The statute provides that it is only necessary for the former spouse to have been covered under any "health benefits plan" under (Title 10 United States Code, Subtitle A Part II,) Chapter 55, which is essentially any health care benefits plan offered by the Department of Defense for dependents of active duty and retired military sponsors. The implementing regulation is considerably more restrictive and requires that the former spouse have been "enrolled in the CHCBP and only as a dependent of an involuntarily separated member." The criteria set out in the CHCBP Handbook falls somewhere in the middle of the statute and regulation, and requires the former spouse to have been "enrolled in either the CHCBP or Tricare" during the eighteen-month period before the divorce. This author believes the reason behind this disconnect is that Congress intended to provide a means for former spouses to have a transitional health care plan that was equal to that afforded to former spouses of federal civilian employees; whereas, the DoD was more attuned to providing only for transitional health care for servicemembers being forced out of the military due to the reduction in force after the build-up of forces during the Cold War era and operations Desert Storm and Desert Shield. The CHCBP Handbook, which is not in any way a legal authority, appears to take a middle ground that so happens to also expand its base of possible customers for the CHCBP. In practice, and since most of the management and oversight of the CHCBP is by the administrator, it is reasonable to assume that the criteria for unlimited coverage will be satisfied if the former spouse has been covered under either Tricare or the CHCBP during the eighteen months before the divorce, dissolution, or annulment.
212. Do not be confused by the phrase "involuntarily separated member." Separation for reasons of retirement from military service also satisfies these criteria.
213. See 10 U. S. C. § 1078a (g) (4) (B).
214. Once again confusion arises over how the class of eligible former spouses is defined by differences in the language found in the statute, implementing regulations, and the CHCBP Handbook.
215. The statute at 10 U. S. C. § 1078a (g) (4) contains no language or reference requiring the former spouse to be one of "an involuntarily separated servicemember", but does at subsection (4) (B) indicate that former spouses of those retired from service are certainly part of the intended group to be allowed unlimited coverage. The implementing regulation (32 C. F. R. § 199.20 (d) (6) (iv) (B)) and CHCBP Handbook (page 24) have essentially identical language and restrictively limit the class of eligible former spouses by requiring the former spouse to have been "the dependent of an involuntarily separated member during the eighteen months before the date of the divorce, dissolution, or annulment." Under the most conservative interpretation of the three sources, a former military spouse, otherwise eligible for transitional CHCBP coverage and meeting the other criteria for unlimited coverage, would satisfy the criteria if their military sponsor was either retired or retirement eligible at the time of the divorce, or was involuntarily separated from service. This author believes the statute would cover former military spouses of: (a) an active duty sponsor who was eligible for retirement but not yet retired; (b) the "gray area reservists" (i.e., those who had accumulated at least twenty years of creditable service for retirement, but were not yet eligible to receive military retired pay due to age) ; (c) those who took a Voluntary Separation Incentive (VSI) (under 10 U. S. C. § 1175) ; (d) those who took a Special Separation Benefit (SSB) (under 10 U. S. C. § 1174 (a) ; (e) those who are on the Temporary Disability Retirement List (TDRL) ; or (f) those who were medically retired under Chapter 61 of Title 10 United States Code. In practice, the CHCBP administrator appears to go by the broader definition of the class for eligible former spouses as determined by the enabling statute (as opposed to the more restrictive implementing regulation) and will authorize unlimited CHCBP coverage for former spouses of those military sponsor's who are retired or eligible to retire. In case no one has noticed, there is still a "very large elephant in the room!" What of the former spouses of those servicemembers still serving on active duty or those actively participating in the Reserve Components and who are neither retired nor "involuntarily separated" when they divorce from their nonmilitary spouses? Once again, the enabling statute at 10 U. S. C. § 1078a (g) (4) contains no language whatsoever that excludes former spouses of servicemembers still on active duty or who are married to a Reserve Component member serving a period of active duty. To exclude this group of former spouses from unlimited CHCBP coverage would mean that the former spouse of an involuntarily separated servicemember, who had been on active duty for just five years, would be eligible for unlimited CHCBP coverage; whereas, a former spouse married for nineteen years to a military sponsor who had served for nineteen years and eleven months would be denied unlimited CHCBP. This author believes that Congress certainly intended to include former spouses of those military sponsors still on active duty, provided they otherwise satisfied the second-tier criteria. At present the CHCBP administrator appears to include them in the authorized group of those eligible for unlimited CHCBP.
216. Once again the language in the enabling statute (10 U. S. C. § 1078a (g) (4) (B) (ii)) legislating the period of time the former spouse was to have been covered under Tricare (or the CHCBP) is not the same as what appears in the implementing regulation (32 C. F. R. § 199.20 (d) (6) ((iv) (B)) or CHCBP Handbook (page 24). The statutory language only requires the former spouse to have been covered under a Chapter 55 health benefits plan "at any time" during the eighteen months under the CHCBP (or Tricare) before the divorce; whereas, the regulation and CHCBP Handbook require the former spouse to have been covered for the full eighteen months before the divorce. Obviously the regulation is far more restrictive than the statute. But, in real world practice, it should not present a significant problem for the former spouse to meet the "eighteen months of coverage" requirement. Not many divorces occur within the first eighteen months of marriage, and for those who do file within that period of time it usually is easy for the former spouse to postpone taking a final decree in order to satisfy the eighteen months of coverage criteria.
217. This particular leg of the qualifying criteria for unlimited CHCBP coverage is confusing and made even more so as the statute, implementing regulation, and CHCBP Handbook significantly differ in what is required to qualify the former spouse for unlimited coverage. Because of the confusing nature of the three sources of CHCBP information, this author has attempted to point out the differences and explain their consequences in the following extended footnotes. The family practice attorney and client should pay close attention to the following footnotes to be alert to these differences and how they may impact the facts in a particular case.
218. 10 U. S. C. § 1408 (c) (1) (2008).
219. 10 U. S. C. §§ 1447-1455 (2008) ;
220. Sullivan, supra note 26, at § 8.15, 474-91.
221. See Hipps v. Hipps, 597 S. E.2d 359 (Ga. 2004). In Hipps, the military sponsor's service had occurred completely outside of the marriage; however, the nonmilitary spouse had been named the spouse beneficiary of the SBP. Upon the couple's divorce, the nonmilitary spouse wanted to continue her coverage under the military sponsor's SBP. The military retiree (husband) opposed the ex-wife continuing her SBP coverage by claiming the right to name the plan's beneficiary was a premarital and separate asset of the military sponsor. The Georgia Supreme Court ruled that the nonmilitary spouse could be awarded former spouse coverage under the SBP as an alimony award, even if it were considered the military sponsor's separate property.
222. 10 U. S. C. § 1078a (b) (3) (B) ;
223. C. F. R. § 199.20 (d) (1) (iii).
224. 10 U. S. C. § 1078a (g) (4) (B) (ii) ;
225. C. F. R. § 199.20 (d) (96) (iv).
226. 32 C. F. R. § 199.20 (d) (6) (iv) (B).
227. Compare the legislative purpose of 10 U. S. C. § 1078a (a) and the criteria found in 10 U. S. C. § 1078a (g) (4) with the criteria for former spouses of federal employees at 5 U. S. C. § 8901 (10) and 5 U. S. C. § 8905 (c) (1).
228. This author's discussions with a senior CHCBP administrator confirmed that as long as the former spouse can document that the remarriage occurred after the fifty-fifth birthday, his or her eligibility for CHCBP coverage would be unaffected. (Certified copies of birth and marriage certificates should suffice.) However, that same individual stated that any Tricare or CHCBP customer service representative who was unfamiliar with the unlimited coverage criteria could very easily give incorrect information about the consequence of a remarriage upon eligibility for CHCBP coverage.
229. 10 U. S. C. § 1072 (2) (F) (2008).
230. See 10 U. S. C. § 1078a (g) (4) (B) (i) (2008).
231. 32 C. F. R. § 199.3 (f).
232. See 10 U. S. C. § 1078a (b) (3) (C).
233. 10 U. S. C. § 1078a (b) (3) (C) ;
234. C. F. R. § 199.20 (d) (1) (iii) (C).
235. 10 U. S. C. § 1078a (c) (4), (g) (1) (C) (ii) ;
236. C. F. R. § 199.20 (6) (iii) (B).
237. 10 U. S. C. § 1078a (c) (4).
238. Id. at (g) (4).
239. Lowe, 738 N. W.2d 63, is discussed in greater detail at note 108 and accompanying an earlier segment of this article.. The case does not provide any legal precedent, but it does suggest that considerable future litigation can be avoided by qualifying the former spouse to receive both a portion of retired pay and survivor benefit plan coverage.
240. 10 U. S. C. § 1408 (d) (4) (2008).
241. Closely compare the language in the CHCBP statute at 10 U. S. C. § 1078a (g) (4) (B) (iii) (I) with 10 U. S. C. § 1078 (g) (4) (B) (iii) (H). The former subsection (i.e., (g) (4) (B) (iii) (I)) discusses the current receipt by the former spouse of either a portion of retired pay or a survivor's annuity; whereas, the later subsection ((g) (4) (B) (iii) (II)) discusses the right to receive a survivor's annuity in the future. Thus, a former spouse attempting to qualify for unlimited CHCBP with SBP coverage would always be either actually receiving the survivor's annuity, or would be eligible to receive one in the future if the military sponsor predeceased him or her. Of course, if the former spouse predeceased the military sponsor, the issue of health care coverage would be moot.
242. While a detailed discussion of former spouse benefits under the SBP is beyond the scope of this article, some knowledge of it is necessary to assist the nonmilitary client in making health care decisions under the CHCBP. SBP coverage is decided at the time of retirement, and may be imposed by law if the military member is not yet retired or is retirement eligible. By default, a maximum SBP is given to the spouse if it is not affirmatively waived. Often a decision is made to forgo SBP in favor of obtaining additional life insurance, so it is always a good idea to ask the nonmilitary spouse if he or she waived coverage at the time of the sponsor's retirement. There are very limited opportunities for retroactive enrollment into the SBP. For those military retirees already receiving retired pay, the existence of the SBP will appear on military retired pay statements (DFAS-CL Form 7220/148). Members of the Reserve Component actually have two opportunities to enroll in the SBP: (1) at the time they receive their twenty-Year Letter, they may enroll in the Reserve Component-Survivor Benefit Plan (RCSBP), and (2) at age sixty, they may enroll in the regular SBP. Under either RC-SBP or the standard SBP, a former spouse can be made eligible for coverage by an agreement or court order and a deemed election. It is essential to have the status of the SBP coverage changed from "spouse" to "former spouse" at the time of the divorce. When both parties are cooperative, a DD Form 2656-1 can be used to make the change. If the military sponsor is not cooperative in completing that form, a deemed election may be filed to protect a former spouse by using a DD Form 2656-10. Both forms are available on the Internet, and instructions appear on the back of the form detailing how to answer the questions and where to file the form. The main thing to remember is that the change from spouse to former spouse coverage must be completed within one year of the date of the divorce, dissolution, or annulment. For more information on former spouse rights under the SBP and deemed elections
243. see Sullivan, supra note 26, at § 8.15, 474-91.
244. The former military spouse should expect that when the time comes to request unlimited CHCBP coverage, he or she will be required to submit copies of certain documents to the CHCBP administrator showing that he or she satisfies the criteria. Generally speaking, these documents will be the final decree of divorce (dissolution or annulment), and any settlement agreement, military pension division order, or military retired pay or annuity statement that shows the receipt of, or right to receive, a portion of military retired pay or a survivor's annuity. In most instances, the CHCBP administrator will not go beyond the court documents themselves, but certainly may request whatever documentation is needed to confirm that eligibility criteria is satisfied. Certainly if the administrator doubted that the court documents were adequate or legally sufficient to provide a survivor annuity, he or she could request a letter from the Defense Finance and Accounting Service's Military Retired Pay Section to confirm the right of the former spouse to survivor's benefits.
245. For a more lengthy discussion of converting military service time to federal civil service retirement
246. see Sullivan, supra note 26, at § 8.16, 495-500.
247. 10 U. S. C. §§ 1078a (g) (4) (B) (iii) (I) & (II) ;
248. C. F. R. §§ 199.20 (d) (6) (iv) (CHE).
249. See 10 U. S. C. § 1078a (g) (4) (B) (iii) (2008) ;
250. C. F. R. §§ 199.20 (d) (6) (iv) (CHE) (2009).
251. 10 U. S. C. § 1408 (d) (2) (2008). The 10/10 rule requires that for the Defense Finance and Accounting Service to make direct payments of their portion of any court-awarded share of military retired pay, the marriage must have been for at least ten years, the military sponsor must have at least ten years of military service, and the marriage and military service must have been concurrent for at least ten years. Note that the 10/10 rule is not jurisdictional but rather administrative. A few states impose a threshold of time in the marriage concurrent with time earning pension under a defined benefit plan, but most state courts can divide military retired pay with only a very minimal amount of the marriage coexisting with military service. If the division of military retired pay is by agreement or consent order, there is no "concurrent military service and marriage" time requirement. To circumvent the Former Spouses Protection Act's 10/10 rule and obtain direct payments from the Defense Finance and Accounting Service, the court order can term the payments as alimony. A subsequent garnishment from military retired pay is not executed under 10 U. S. C. § 1408, but rather under 42 U. S. C. § 659. Note that garnishment under § 1408 is a property division, whereas the one under § 659 is a support obligation. Fortunately, the CHCBP statute at 10 U. S. C. § 1078a (g) (4) (B) (ii) does not specify how receipt of retired pay is to be paid (i.e., "property division" versus "alimony").
252. For example, distinguish (1) "the former spouse is awarded alimony for support in the sum of $300 per month" (from a military sponsor who happens to be entitled to retired pay) ; from, (2) "the former spouse is awarded from the husband's military retired pay the sum of $300 per month for her support." Under example (1), the payment of alimony is not specifically tied to the husband's military retired pay; whereas, in example (2) it is clear that the source of alimony is the military retirement. Even if faced with a case that has example (1) language, the alimony withholding order could be directed at the servicemember's military retired pay, and it would create the appearance that the former spouse is receiving a portion of retired pay. Note that a DD Form 2293, "Application for Former Spouse Payments Under the Uniformed Services Former Spouses Protection Act" can be used to get a direct payment of an alimony order, which can be expressed as a fixed-dollar amount or a percentage or fraction of disposable military retired pay. The DD Form 2293 is the transmittal form used to request direct payments from military retired pay for either alimony or as a property division.
253. As cautionary advice, the declaratory order or agreement sourcing the alimony from the military retired pay should not be sent to the Defense Finance and Accounting Service as it would jeopardize its accepting the alimony withholding order. If the Defense Finance and Accounting Service should determine the alimony order is, in fact, a property division and is not a true support order, it will be deemed a mere pretext to circumvent the 10/10 rule, and the alimony order will be rejected.
254. Grateful appreciation is extended to Lieutenant Jessica L. Pyle, Judge Advocate General's Corps, U. S. Navy, for her advice and assistance in drafting the attorney advisory letter found at Appendix 2 of this article.
255. Under the DoD's SBP, the SBP base amount can range from $300 to the full amount of retired pay. As the monthly premiums for SBP coverage are approximately 6.5% of the SBP base amount, the monthly premium cost for providing minimum SBP coverage to a former spouse would be ($300 ×.065) $19.50. Since there can be only one SBP beneficiary under the plan (except for contingent beneficiary coverage to minor children), awarding a minimum SBP to the former spouse in order to qualify him or her for the CHCBP unlimited coverage would have the unintended consequence of preventing the military member from naming a subsequent spouse or children, as beneficiaries under his or her SBP.
256. 10 U. S. C. §§ 1078a (b) (3), (g) (4) (2008) ;
257. C. F. R. §§ 199.20 (d) (1) (iii), (d) (6) (iv) (2009).
258. 10 U. S. C. § 1408. Under this statute at § 1408 (d) (2), there is a requirement that the marriage be concurrent with ten years of creditable military service; however, this is an administrative prerequisite only to require direct payments to the former spouse from the Defense Finance and Accounting Service. The family law practitioner should consult the relevant state case law and statutes to determine if any threshold period of marriage is required to divide a defined benefit plan (i.e., pension). But, as to federal law, there exists no threshold requirement of any kind in order for a state court to divide military retired pay.
259. See Sullivan, supra note 26, at 505;
260. Willick, supra note 25, at 79-86.
261. 10 U. S. C. §§ 1447-1455;
262. Sullivan, supra note 26, at 474-91.
263. 10 U. S. C. §§ 1078a (b) (3) (A), (B), (g) (4) (B) ;
264. C. F. R. §§ 199.20 (d) (1) (iii), (d) (6) (iii) & (iv). Note the phrase "member or former member" of the uniformed services appears in both the statute and implementing regulations.
265. The argument for reconsideration could follow this analysis: A former spouse's eligibility for enrollment in transitional CHCBP is determined as of the date he or she first applies for transitional CHCBP coverage. It is not until the thirty-six months of transitional coverage has been used that the former spouse then attempts to meet the special qualifying criteria for unlimited coverage. Humana Military Healthcare Services CHCBP, http://www.humana-military.com/CHCBP/handbooktoc.htm (last visited May 28, 2009).
266. Ask the CHCBP administrator to compare ¶ E.l.c. (1) (unremarried former spouse seeking thirty-six months of transitional CHCBP coverage) with subparagraph (2) (former spouse seeking unlimited coverage). Direct the administrator's attention to the fact that the event of the sponsoring military member leaving active duty (and losing coverage under a DoD health or dental
267. See CHCBP Handbook, page 21, which states: "Disenrollment in Other Programs. In order to be eligible to enroll in the CHCBP, the beneficiary will be disenrolled from any other managed care programs established or operated under the auspices of the DoD." Humana Military Healthcare Services CHCBP, http://www.humana-military.com/CHCBP/handbooktoc.htm (last visited May 28, 2009).
268. 10 U. S. C. § 1078a (a).
269. See 32 C. R. R. § 199.20 (h), which then refers to 32 C. F. R. § 199.8 ("Double Coverage").
270. Note that the disqualifier of "covered under an employer sponsored health care plan" found in 10 U. S. C. § 1072 (2) (F), (H) and at 32 C. F. R. § 199.3 (b) (2) (i) (B) do not require that it be the former military spouse's employer's insurance. It can be the former military sponsor's coverage.
271. 32 C. F. R. § 199.3 (b) (2) (i). Note that the limitation under Tricare for coverage of a former spouse under an employer-sponsored health care plan only serves to disqualify the former spouse and has no limitation on a current spouse. During the marriage to the military sponsor, the nonmilitary spouse can be covered under as many health care plans as desired. Tricare will always be the last to pay a claim, but it is still available for the spouse's coverage. This is not the case when a "spouse" becomes a "former spouse."
272. 32 C. F. R. § 199.20 (j) (2009).
273. See OSDGC-Defense Office of Hearings and Appeals, http://www.dod.mil/ dodgc/doha/tricare.html (last visited June 15, 2009). At this website, a notice is provided as follows: Chapter 10 of the CHAMPUS Regulation (title 32 Code of Federal Regulations, section 199.10) provides that administrative hearings may be held to review appeals by beneficiaries and providers of adverse decisions made by [Tricare Service Office] TSO and/or its contractors. Under a memorandum of understanding by and between the TSO and the Defense Office of Hearings and Appeals (DOHA), DOHA administrative judges, acting as hearing officers, are responsible for conducting these hearings and making recommended decisions to the director, TSO. Final decisions are made by the director, TSO, who forwards to the appealing parties copies of the recommended decisions.
274. Id.
275. Such crimes are generally limited to those of physical or emotional abuse of a dependent spouse or child and must result in the military sponsor being court-martialed and punitively discharged from service. 32 C. F. R. § 199.3 (b) (iii) (A) (1). Generally the types of offenses that will fall into this category are incidents of sexual assault, rape, sodomy, assault and battery, murder, manslaughter, and indecent liberties.
276. See 10 U. S. C. § 1059;
277. C. F. R. § 199.3 (b) (iii) ;
278. and Dep't of Def., Instr. 1342.24, Transitional Compensation for Abused Dependents (1995), available at http://www.dtic. mil/whs/directives/corres/pdf/ 134224p. pdf.
279. Dep't of Def., Instr. 1342.24, Transitional Compensation for Abused Dependents 16.2.1.1 (1995).
280. 10 U. S. C. § 1408 (h) ;
281. C. F. R. § 199.3 (b) (iii) (A) (2).
282. See Sullivan, supra note 26, at 307-31 for a more in-depth discussion of domestic violence and the military client.