[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Proposed Rules]
[Pages 75509-75512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31031]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO03
Autopsies at VA Expense
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulation that governs the performance of autopsies on veterans. The
proposed rule would correct a cross-reference to VA regulations that
authorize certain outpatient and ambulatory care. The proposed rule
would also clarify that consent for an autopsy will be implied if 6
months has passed since the decedent's death and there are no
objections from the decedent's surviving spouse or next of kin. The
proposed rule would also modify current regulations to make the laws of
the jurisdiction in which the autopsy will be performed the controlling
laws for purposes of determining who has authority to grant permission
for the autopsy. The proposed rule would also clarify the authorized
purposes of a VA autopsy. Lastly, the proposed rule would clarify that
the authority to order an autopsy includes transporting the body at
VA's expense to the autopsy facility.
DATES: Comments must be received by VA on or before January 31, 2012.
ADDRESSES: Written comments may be submitted through
www.regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue NW., Room 1068,
[[Page 75510]]
Washington, DC 20420; or by fax to (202) 273-9026. Comments should
indicate that they are submitted in response to ``RIN 2900-AO03,
Autopsies at VA Expense.'' Copies of comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Call (202) 461-4902 for an
appointment. (This is not a toll-free number.) In addition, during the
comment period, comments may be viewed online through the Federal
Docket Management System (FDMS) at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kristin J. Cunningham, Director,
Business Policy, Chief Business Office, Department of Veterans Affairs,
810 Vermont Ave. NW., Washington, DC 20420; (202) 461-1599. (This is
not a toll-free number).
SUPPLEMENTARY INFORMATION: Pursuant to 38 CFR 17.170, under certain
specified circumstances, ``[t]he Director of a [VA] facility is
authorized to cause an autopsy to be performed on a veteran who dies
outside of a [VA] facility while undergoing post-hospital care under
the provisions of 38 U.S.C. 1712 and 38 CFR 17.93.'' When this
regulatory provision was originally promulgated, 38 U.S.C. 1712 served
as the authority for certain outpatient and ambulatory care and,
therefore, it also served as the authority for our post-hospitalization
autopsy regulation. However, in 1996, section 1712 was amended by the
Veterans' Health Care Eligibility Reform Act of 1996, Public Law 104-
262, sec. 101. The amendment moved from section 1712 to 38 U.S.C. 1710
the authority to provide outpatient and ambulatory care. In accordance
with that amendment, VA promulgated 38 CFR 17.38, on October 6, 1999,
64 FR 54212. Section 17.38, inter alia, implemented the revised
statutory authority, in 38 U.S.C. 1710, that authorizes VA to provide
hospital and outpatient care to veterans.
We also note that 38 U.S.C. 1703 authorizes VA under specified
circumstances to contract with non-VA facilities to furnish hospital
care and medical services to certain veterans in non-VA facilities. VA
implemented this authority with respect to individuals who died while
receiving hospital and medical care in non-VA facilities in 38 CFR
17.52. Limiting autopsies to individuals who are only receiving VA
medical care under Sec. 17.38 would exclude the individuals who are
receiving fee-basis care under Sec. 17.52, and would, therefore, be
inconsistent with current Sec. 17.170. This proposed rule would update
the statutory and regulatory cross-references in Sec. 17.170
accordingly. These are overdue technical revisions that would not
affect VA's authority to authorize autopsies.
38 CFR 17.170(a), (b)
This rulemaking would also amend current paragraphs (a) and (b) of
Sec. 17.170 by reorganizing and clarifying the provisions governing
whether an autopsy should be performed. Current paragraphs (a) and (b)
state:
(a) Except as provided in this section, no autopsy will be
performed by the Department of Veterans Affairs unless there is no
known surviving spouse or known next of kin; or without the consent
of the surviving spouse or, in a proper case, the next of kin,
unless the patient or domiciled person was abandoned by the spouse,
if any, or, if no spouse, by the next of kin for a period of not
less than 6 months next preceding death. Where no inquiry has been
made for or in regard to the decedent for a period of 6 months next
preceding his death, he or she shall be deemed to have been
abandoned.
(b) If there is no known surviving spouse or known next of kin,
or if the decedent shall have been abandoned or if the request is
sent and the spouse or, in proper cases, the next of kin fails to
reply within the reasonable time stated in such request of the
Department of Veterans Affairs for permission to perform the
autopsy, the Director is hereby authorized to cause an autopsy to be
performed if in the Director's discretion he or she concludes that
such autopsy is reasonably required for any necessary purpose of the
Department of Veterans Affairs, including the completion of official
records and advancement of medical knowledge.
Current paragraphs (a) and (b) use the term ``abandoned'' to
effectively establish implied consent for an autopsy on the part of a
known surviving spouse or next of kin and to effectively establish that
there is no surviving spouse or next of kin to provide consent in cases
where VA is unaware that such a person exists. This proposed rule would
be clearer, and would retain the same substantive meaning, if it was
revised to avoid using the term ``abandoned.'' We would state in new
paragraphs (a)(2)(ii) and (iii), respectively, that VA is authorized to
perform an autopsy if a known surviving spouse or next of kin has
either not responded to a VA request for permission or has not inquired
as to the decedent for a period of 6 months prior to death. This would
accomplish the same effect as the current language, but would do so in
plainer, more direct language. We would also clarify that the consent
to grant an autopsy is either directly granted by the surviving spouse
or next of kin, or the consent is implied. The implied consent gives VA
the authority to perform an autopsy in situations where there is no
known surviving spouse or next of kin, where the known surviving spouse
or next of kin has not inquired as to the decedent for a period of 6
months prior to death, or where such persons have not responded to VA's
request for permission to perform an autopsy. This clarifying language
allows for ease of interpretation of the methods used to obtain consent
for autopsy.
We also propose to state that the surviving spouse/next of kin must
respond to VA's request for authorization to perform an autopsy
``within a specified period of time'' rather than within a ``reasonable
time stated in such request.'' Such requests clearly specify the
applicable time period, which is typically short and based on the
specific facts concerning the decedent's body and/or cause of death.
There is no reason to include a ``reasonable'' modifier in these
situations; it is more direct to simply require a response within the
time period specified in the request.
Finally, we would reorganize the provisions of current paragraphs
(a) and (b) to improve readability. In so doing, we would, in proposed
paragraph (a)(1), authorize the Director of the VA facility to order an
autopsy if ``required for VA purposes for the following reasons: (i)
Completion of official records; or (ii) Advancement of medical
knowledge.'' The current rule is overly broad as it implies that there
may be more than two circumstances in which VA may order an autopsy.
All autopsy requests fall under the advancement of medical knowledge or
the completion of medical records. This proposed rule would clarify
this point. Proposed paragraph (a)(1) would restate the current rule,
with the changes noted above.
38 CFR 17.170(d)
Current paragraph (e) states that ``[t]he laws of the decedent's
domicile are determinative as to whether the spouse or the next of kin
is the proper person to grant permission to perform an autopsy and of
the question as to the order of preference among such persons.'' We
note that readers may have interpreted this sentence to mean that if
the decedent dies in a State where the decedent did not reside, we
would apply the law of the State where the decedent resided in order to
establish the proper person to grant permission for an autopsy. Laws on
this issue may vary between States, and it is administratively
burdensome--and unnecessary--to require VA medical center directors to
determine the decedent's domicile and then to compare and contrast the
laws of the
[[Page 75511]]
various States that may be involved. In order to avoid potential
confusion and administrative difficulties, particularly in autopsy
situations where time is usually of the essence, we have determined
that the laws of the jurisdiction in which the autopsy would be
performed should be used to determine the proper person to grant
permission for the autopsy. We propose such a rule in paragraph (d)(1).
The current regulation also describes the typical hierarchy for
those who may grant permission for an autopsy, but the language is
hortatory and nonbinding (``[u]sually the spouse is first entitled,''
etc.). We believe that this is not only unhelpful but is also
potentially misleading if it is relied upon by a VA facility director
in a State in which this typical hierarchy is not in fact law. Thus, we
would remove this list. This change will emphasize the need for each
local VA facility to establish its own local guidance based on the
applicable law of the State in which the autopsy will be performed. We
also propose to reorganize and clarify the provisions of current
paragraph (e) in proposed paragraph (d).
38 CFR 17.170(e)
Under current paragraph (f) the Director of a VA facility ``is
authorized to cause an autopsy to be performed on a veteran who dies
outside of a Department of Veterans Affairs facility while undergoing
post-hospital care under the provisions of 38 U.S.C. 1712 and 38 CFR
17.93.'' As noted previously, these authorities have been revised. We
would amend the regulation accordingly. In addition, current paragraph
(f) states that the Director of the VA facility's authority to order an
autopsy also includes authority to furnish transportation of the body
at VA expense to the VA facility where the autopsy would be performed.
However, an autopsy would not necessarily be performed in a VA
facility. VA may use a contract provider to perform the autopsy outside
of a VA facility, or utilize a regional autopsy center. We, therefore,
propose to state in paragraph (e) that the authority to order an
autopsy ``also includes transporting the body at VA's expense to the
facility where the autopsy will be performed.''
We also propose to add an authority citation, 38 U.S.C. 501, 1703,
and 1710, after Sec. 17.170.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. This proposed rule would not cause a significant
economic impact on health care providers, suppliers, or entities since
only a small portion of the business of such entities concerns VA
beneficiaries. Therefore, pursuant to 5 U.S.C. 605(b), this proposed
rule is exempt from the initial and final regulatory flexibility
analysis requirements of Sec. Sec. 603 and 604.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), as ``any regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or Tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined not to be a significant regulatory action under
Executive Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in expenditure by
State, local, or Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This proposed rule would have no such
effect on State, local, or Tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program number and title
for this rule are as follows: 64.005, Grants to States for Construction
of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008,
Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits;
64.010, Veterans Nursing Home Care; 64.014, Veterans State Domiciliary
Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing
Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol
and Drug Dependence; 64.022, Veterans Home Based Primary Care; and
64.024, VA Homeless Providers Grant and Per Diem Program.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on November 21, 2011, for publication.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure; Alcohol abuse; Alcoholism;
Claims; Day care; Dental health; Drug abuse; Government contracts;
Grant programs--health; Grant programs--veterans; Health care; Health
facilities; Health professions; Health records; Homeless; Mental health
programs; Nursing homes; Philippines, Reporting and recordkeeping
requirements; Veterans.
Dated: November 29, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR part 17 as follows:
[[Page 75512]]
PART 17--MEDICAL
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
2. Amend Sec. 17.170 by:
a. Revising paragraph (a).
b. Removing paragraph (b).
c. Redesignating paragraph (c) as new paragraph (b) and adding a
paragraph heading.
d. Redesignating paragraph (d) as new paragraph (c) and adding a
paragraph heading.
e. In newly redesignated paragraph (c), removing ``paragraph (c)''
each time it appears and adding, in its place, ``paragraph (b)''.
d. Redesignating paragraph (e) as new paragraph (d) and revising
newly redesignated paragraph (d).
e. Redesignating paragraph (f) as new paragraph (e) and revising
newly redesignated paragraph (e).
f. Adding an authority citation at the end of the section.
The revisions and addition read as follows:
Sec. 17.170 Autopsies.
(a) General. (1) Except as otherwise provided in this section, the
Director of a VA facility may order an autopsy on a decedent who died
while undergoing VA care authorized by Sec. 17.38, ``Medical Benefits
Package'', or Sec. 17.52, ``Hospital care and medical services in non-
VA facilities'', if the Director determines that an autopsy is required
for VA purposes for the following reasons:
(i) Completion of official records; or
(ii) Advancement of medical knowledge.
(2) VA may order an autopsy to be performed only if consent is
first obtained under one of the following circumstances:
(i) Consent is granted by the surviving spouse or next of kin of
the decedent;
(ii) Consent is implied where a known surviving spouse or next of
kin does not respond within a specified period of time to VA's request
for permission to conduct an autopsy;
(iii) Consent is implied where a known surviving spouse or next of
kin does not inquire after the well-being of the deceased veteran for a
period of at least 6 months before the date of the veteran's death; or
(iv) Consent is implied where there is no known surviving spouse or
next of kin of the deceased veteran.
(b) Death resulting from crime. * * *
(c) Jurisdiction. * * *
(d) Applicable law. (1) The laws of the state where the autopsy
will be performed are to be used to identify the person who is
authorized to grant VA permission to perform the autopsy and, if more
than one person is identified, the order of precedence among such
persons.
(2) When the next of kin, as defined by the laws of the state where
the autopsy will be performed, consists of a number of persons such as
children, parents, brothers and sisters, etc., permission to perform an
autopsy may be accepted when granted by the person in the appropriate
class who assumes the right and duty of burial.
(e) Death outside a VA facility. The Director of a VA facility may
order an autopsy on a veteran who was undergoing VA care authorized by
Sec. Sec. 17.38 or 17.52, and whose death did not occur in a VA
facility. Such authority also includes transporting the body at VA's
expense to the facility where the autopsy will be performed, and the
return of the body. Consent for the autopsy will be obtained as stated
in paragraph (d) of this section. The Director must determine that such
autopsy is reasonably required for VA purposes for the following
reasons:
(1) The completion of official records; or
(2) Advancement of medical knowledge.
(Authority: 38 U.S.C. 501, 1703, 1710)
[FR Doc. 2011-31031 Filed 12-1-11; 8:45 am]
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