[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Proposed Rules]
[Pages 12522-12524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4941]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AN87
Tentative Eligibility Determinations; Presumptive Eligibility for
Psychosis and Other Mental Illness
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the Department of Veterans
Affairs (VA) regulation authorizing tentative eligibility
determinations to comply with amended statutory authority concerning
statutory minimum active-duty service requirements. This document also
proposes to codify in regulation statutory presumptions of medical-care
eligibility for veterans of certain wars and conflicts who developed
psychosis within specified time periods and for Persian Gulf War
veterans who developed a mental illness other than psychosis within two
years after service and within two years after the end of the Persian
Gulf War period. We believe that regulations are necessary because we
would interpret the law to allow VA to waive any copayments associated
with care pursuant to the statutory presumption and to waive any
otherwise applicable minimum service requirements.
DATES: Comments must be received by VA on or before April 30, 2012.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulations
Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026.
(This is not a toll-free number). Comments should indicate that they
are submitted in response to ``RIN 2900-AN87, Tentative eligibility
determinations; Presumptive eligibility for psychosis and other mental
illness.'' 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). Please 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 www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kristin J. Cunningham, Director,
Business Policy, Chief Business Office, Department of Veterans Affairs,
810 Vermont Avenue NW., Washington, DC 20420; (202) 461-1599. (This is
not a toll-free number).
SUPPLEMENTARY INFORMATION: This rulemaking would amend 38 CFR 17.34,
``Tentative eligibility determinations,'' and would establish a new
Sec. 17.109 concerning presumptive eligibility for medical care for
psychosis and other mental illness.
Current 38 CFR 17.34 applies to veterans who seek medical care but
are not enrolled in the VA healthcare system. Administratively, the
rule allows us to provide medical care in specified situations, if
``eligibility for [medical] care probably will be established.''
Current Sec. 17.34(a), which is not amended by this notice, authorizes
such a tentative eligibility determination in emergencies. The vast
majority of applicants who have not yet established eligibility but
require medical care fall into this category.
Current Sec. 17.34(b) applies in non-emergency situations to a
veteran who seeks medical care ``within 6 months after date of
honorable discharge from a period of not less than 6 months of active
duty.'' Paragraph (b) authorizes a tentative eligibility determination
because of the brief time period between discharge and application. In
many of these cases, it is clear that the condition for which the
veteran seeks care is one for which service connection ``probably will
be established.'' However, current paragraph (b) needs to be revised so
that the minimum-active-duty period (``6 months of active duty'')
complies with the minimum active-duty service requirements set forth in
38 U.S.C. 5303A. Pursuant to section 5303A(a), ``any requirements for
eligibility for or entitlement to any [VA] benefit * * * that are based
on the length of active duty served by a person who initially enters
such service after September 7, 1980, shall be exclusively as
prescribed in [title 38, United States Code].'' Therefore, the current
rule would be applicable only to persons who entered a period of
service on or before September 7, 1980, and are seeking eligibility
based on that period of service. This requirement would be reflected in
proposed paragraph (b)(1). Proposed paragraph (b)(2) would require, for
persons who entered service after September 7, 1980, that the applicant
meet the minimum service requirements in section 5303A, and have filed
their application within 6 months after date of honorable discharge.
These revisions merely update our regulation to conform to current law.
We would amend VA's regulation on the provision of care to non-
enrolled veterans, 38 CFR 17.37, by adding a paragraph that would
authorize VA to provide care to veterans for psychosis and mental
illnesses other than psychosis. The provision of this care would be
pursuant to 38 CFR 17.109, which we propose to create in this rule and
discuss in detail below. The proposal to amend Sec. 17.37 authorizes
the subsequent changes we propose in this rulemaking.
We also propose a new Sec. 17.109 that would codify in regulation
for the first time two presumptions of eligibility for medical care
based on specific diagnoses in certain veteran populations. Pursuant to
38 U.S.C. 1702(a), for the purposes of VA's authority to provide
medical benefits under chapter 17 of title 38, United States Code,
certain veterans who developed an active psychosis within a time period
specified in the statute ``shall be deemed to have incurred such
disability in the active military, naval, or air service.'' The effect
of a presumption of incurrence means that VA must provide medical care
to the veteran as if the condition for which the veteran is treated
were service connected. Although VA complies with this mandate, this
statutory authority has never been articulated in a VA regulation.
The National Defense Authorization Act for Fiscal Year 2008, Public
Law 110-181, Sec. 1708(a)(1), (2), 122 Stat. 3, 493-94 (2008), amended
38 U.S.C. 1702 to create a similar presumption for veterans of the
Persian Gulf War who develop a mental illness other than psychosis
within two years after discharge from military service and within two
years after the last day of the Persian Gulf War. We note that the
Persian Gulf War is defined by statute as ``the period beginning on
August 2, 1990, and ending on the date thereafter prescribed by
Presidential proclamation
[[Page 12523]]
or by law.'' 38 U.S.C. 101(33). No ending date has yet been prescribed.
In proposed Sec. 17.109, we would articulate in regulation the
statutory presumptions in 38 U.S.C. 1702. Most of the language of the
proposed rule would be virtually identical to that of the authorizing
statute; we would merely reorganize it for clarity.
A veteran who receives care from VA for a service-connected
disability is not required to pay copayments under 38 CFR 17.108(b),
17.110(c)(2), and 17.111(f). Because the veteran would be receiving
care for a condition that is presumed to have been incurred during
service, i.e., presumed to be service connected, we believe that
section 1702 requires us to waive copayments for this group of
veterans. Thus, we would state in the proposed rule that the
eligibility for benefits is established under this section ``and such
condition is exempted from copayments under Sec. Sec. 17.108, 17.110,
and 17.111''.
The section 1702 presumption applies only for the purposes of 38
U.S.C. chapter 17, which establishes VA's authority to provide medical,
nursing home, and domiciliary care. In other words, we presume
eligibility for the purposes of administering those services that VA is
authorized to provide under chapter 17, including but not only the
medical benefits package under 38 CFR 17.38, which sets out generally
those services that VA may provide.
Thus, the Veterans Health Administration (VHA) may treat the
covered disabilities as if they were service connected for purposes of
furnishing VHA benefits and, in turn, determine that no copayment is
applicable to the receipt of such benefits.
In addition, because we are treating these veterans by presuming
that their condition is service-connected, we would clarify in
paragraph (c) that minimum active-duty service requirements do not
apply to eligibility for care and waiver of copayments established
under the proposed rule. As discussed above regarding the proposal to
amend Sec. 17.34(b), pursuant to 38 U.S.C. 5303A(a), veterans who
entered service after September 7, 1980, are subject to certain minimum
service requirements; however, under section 5303A(b)(3)(D), this
requirement does not apply ``to the provision of a benefit for or in
connection with a service-connected disability''.
Finally, we propose to amend 38 CFR 17.108, 17.110, and 17.111 to
clearly exempt persons eligible for care under proposed Sec. 17.109
from the copayment requirement. Although we would establish such an
exemption in Sec. 17.109 itself, we believe that our regulations will
be clearer overall if the exemptions are repeated in the copayment
regulations.
VA assumes that the number of veterans who will request eligibility
under this rulemaking is insignificant because most veterans will be
otherwise eligible for service-connected treatment. The majority of
veterans who are already enrolled in the system or eligible for care
under 38 U.S.C. 1710 would not be affected by this rulemaking. The
potential cohort of veterans who are not enrolled in the system and who
are not eligible for care under 38 U.S.C. 1710, but meet the criteria
established by the provisions of this rulemaking are insignificant
compared to the veterans eligible or enrolled under 38 U.S.C. 1710. In
addition, the veterans who gain access through this rulemaking do not
get the full medical benefits package so it would not be advantageous
to gain eligibility through this provision when they are eligible
through 38 U.S.C. 1710. Therefore, VA assumes the cost associated with
this rulemaking to be insignificant and welcomes the public to comment
on any of the assumptions used in this analysis.
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, distributive impacts, and equity). Executive
Order 13563 (Improving Regulation and Regulatory Review) emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of 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
the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed regulatory action have been examined and
it has been determined not to be a significant regulatory action under
Executive Order 12866.
Effect of Rulemaking
The Code of Federal Regulations, as proposed to be revised by this
proposed rulemaking, would represent the exclusive legal authority on
this subject. No contrary rules or procedures would be authorized. All
VA guidance would be read to conform with this proposed rulemaking if
possible or, if not possible, such guidance would be superseded by this
rulemaking.
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 developing 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.
Paperwork Reduction Act
This proposed rule does not contain any collections of information
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
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 directly affect any small
entities. Only VA beneficiaries could be directly affected. Therefore,
under 5 U.S.C. 605(b), this proposed rule is exempt from the initial
and final regulatory flexibility analysis requirements of 5 U.S.C. 603
and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers and
titles are 64.009, Veterans Medical Care Benefits; 64.010, Veterans
Nursing Home Care; 64.011, Veterans Dental Care; 64.013, Veterans
Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources;
64.019, Veterans
[[Page 12524]]
Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home
Based Primary Care.
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 February 24, 2012, for publication.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Dated: February 27, 2012.
Robert C. McFetridge,
Director, Office of Regulation Policy and Management, Office of the
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 17 as follows:
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. 17.34 by revising paragraph (b) to read as follows:
Sec. 17.34 Tentative Eligibility Determinations.
* * * * *
(b) Based on discharge. The application is filed within 6 months
after date of honorable discharge and:
(1) For a veteran who seeks eligibility based on a period of
service that began on or before September 7, 1980, such period must
have been for not less than 6 months of active duty.
(2) For a veteran who seeks eligibility based on a period of
service that began after September 7, 1980, the veteran must meet the
applicable minimum service requirements under 38 U.S.C. 5303A.
(Authority: 38 U.S.C. 501, 5303A)
3. Amend Sec. 17.37 by adding paragraph (k) immediately after
paragraph (j) to read as follows:
Sec. 17.37 Enrollment Not Required--Provision of Hospital and
Outpatient Care to Veterans.
* * * * *
(k) A veteran may receive care for psychosis or mental illness
other than psychosis pursuant to 38 CFR 17.109.
* * * * *
4. Amend Sec. 17.108 by adding paragraph (d)(12) to read as
follows:
Sec. 17.108 Copayments for inpatient hospital care and outpatient
medical care.
* * * * *
(d) * * *
(12) A veteran receiving care for psychosis or a mental illness
other than psychosis pursuant to Sec. 17.109.
* * * * *
5. Add Sec. 17.109 to read as follows:
Sec. 17.109 Presumptive eligibility for psychosis and mental illness
other than psychosis.
(a) Psychosis. Eligibility for benefits under this part is
established by this section for treatment of an active psychosis, and
such condition is exempted from copayments under Sec. Sec. 17.108,
17.110, and 17.111 for any veteran of World War II, the Korean
conflict, the Vietnam era, or the Persian Gulf War who developed such
psychosis:
(1) Within 2 years after discharge or release from the active
military, naval, or air service; and
(2) Before the following date associated with the war or conflict
in which he or she served:
(i) World War II: July 26, 1949.
(ii) Korean conflict: February 1, 1957.
(iii) Vietnam era: May 8, 1977.
(iv) Persian Gulf War: The end of the 2-year period beginning on
the last day of the Persian Gulf War.
(b) Mental illness (other than psychosis). Eligibility under this
part is established by this section for treatment of an active mental
illness (other than psychosis), and such condition is exempted from
copayments under Sec. Sec. 17.108, 17.110, and 17.111 for any veteran
of the Persian Gulf War who developed such mental illness other than
psychosis:
(1) Within 2 years after discharge or release from the active
military, naval, or air service; and
(2) Before the end of the 2-year period beginning on the last day
of the Persian Gulf War.
(c) No minimum service required. Eligibility for care and waiver of
copayments will be established under this section without regard to the
veteran's length of active-duty service.
(Authority: 38 U.S.C. 501, 1702, 5303A)
6. Amend Sec. 17.110 by adding paragraph (c)(10) immediately after
paragraph (c)(9) to read as follows:
Sec. 17.110 Copayments for medication.
* * * * *
(c) * * *
(10) A veteran receiving care for psychosis or a mental illness
other than psychosis pursuant to Sec. 17.109.
* * * * *
7. Amend Sec. 17.111 by adding paragraph (f)(9) to read as
follows:
Sec. 17.111 Copayments for extended care services.
* * * * *
(f) * * *
(9) A veteran receiving care for psychosis or a mental illness
other than psychosis pursuant to Sec. 17.109.
* * * * *
[FR Doc. 2012-4941 Filed 2-29-12; 8:45 am]
BILLING CODE 8320-01-P