[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38179-38181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15624]
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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: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
regulation that governs the performance of autopsies on veterans. This
final rule updates outdated cross-references to a statute that
previously authorized certain outpatient and ambulatory care, which
included post-hospitalization autopsies, and its implementing
regulation. This final rule clarifies that consent for an autopsy is
implied 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 6 months before the decedent's death. This final rule
modifies the current regulation 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.
This final rule also clarifies the authorized purposes of a VA autopsy.
Lastly, this final rule clarifies that the authority to order an
autopsy includes transporting the body at VA's expense to the place
where the autopsy will be performed.
DATES: This final rule is effective July 27, 2012.
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: Prior to this final rulemaking, 38 CFR
17.170 stated that 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.'' These cross-references are outdated and incomplete.
Post-hospital
[[Page 38180]]
care is now governed by section 1710, not section 1712, and the
implementing regulation is now at 38 CFR 17.38. In addition, VA is
authorized, under Sec. 17.52, to contract with non-VA facilities to
furnish hospital care and medical services to certain veterans in non-
VA facilities. This final rule updates the cross-references in Sec.
17.170 to allow VA to order an autopsy of an individual who dies while
receiving fee-basis care under Sec. 17.52 and to pay the expense of
transporting the body for purposes of performing the autopsy.
This final rule also amends Sec. 17.170 by reorganizing and
clarifying the provisions governing whether an autopsy should be
performed, including clarifying the applicability of local laws and the
determination of the individual authorized to consent to autopsy. This
clarifying language allows for ease of interpretation of the methods
used to obtain consent for autopsy.
In a document published in the Federal Register on December 2, 2011
(76 FR 75509), VA proposed the above-described amendments to Sec.
17.170. We provided a 60 day comment period, which ended on January 31,
2012. We received one comment from a member of the general public.
The commenter agreed with all of the proposals. Therefore, VA will
make no changes based on this comment. The commenter stated that
``[w]hen an autopsy is required for this purpose it is necessary to
complete it in a timely fashion. Simplifying the language will help to
achieve this goal by clarifying which laws to consult, addressing the
requirements needed to achieve consent, and stating clearly the
limitations on time.'' We thank the commenter for taking the time to
review this rulemaking.
Based on the rationale set forth in the preamble to the proposed
rule and in this final rule, VA is adopting the proposed rule as a
final rule without any substantive changes. We made a couple of
nonsubstantive edits to proposed Sec. 17.170(a)(1).
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this
rulemaking, represents VA's implementation of its legal authority on
this subject. Other than future amendments to this regulation or
governing statutes, no contrary guidance or procedures are authorized.
All existing or subsequent VA guidance must be read to conform with
this rulemaking if possible or, if not possible, such guidance is
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 issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This final rule will have no such effect
on State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
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.''
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action, and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will 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 final rule will 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 final rule is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance program numbers and
titles for this final 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 June 21, 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; 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.
[[Page 38181]]
Dated: June 21, 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 amends 38 CFR part 17 as follows:
PART 17--MEDICAL
0
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
0
2. Amend Sec. 17.170 by:
0
a. Revising paragraph (a).
0
b. Removing paragraph (b).
0
c. Redesignating paragraph (c) as new paragraph (b) and adding a
paragraph heading.
0
d. Redesignating paragraph (d) as new paragraph (c) and adding a
paragraph heading.
0
e. In newly redesignated paragraph (c), removing ``paragraph (c)'' each
time it appears and adding, in its place, ``paragraph (b)''.
0
f. Redesignating paragraph (e) as new paragraph (d) and revising newly
redesignated paragraph (d).
0
g. Redesignating paragraph (f) as new paragraph (e) and revising newly
redesignated paragraph (e).
0
h. Adding an authority citation at the end of the section.
The revisions and additions 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 or Sec. 17.52, 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. 2012-15624 Filed 6-26-12; 8:45 am]
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