[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Proposed Rules]
[Pages 70967-70969]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28776]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO46
Authorization for Non-VA Medical Services
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulation governing payment by VA for non-VA outpatient care under
VA's statutory authority to provide non-VA care. Under this authority,
VA may contract for certain hospital care (inpatient care) and medical
services (outpatient care) for eligible veterans when VA facilities are
not capable of providing such services due to geographical
inaccessibility or are not capable of providing the services needed.
This proposed amendment would revise VA's existing regulation in
accordance with statutory authority to remove a limitation on which
veterans are eligible for medical services under this authority.
DATES: VA must receive comments on or before December 28, 2012.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to the Director,
Regulation Policy and Management (02REG), Department of Veterans
Affairs, 810 Vermont Ave. 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-AO46--
Authorization for Non-VA Medical Services.'' Copies of comments
received will be available for public inspection in the Office of
Regulation Policy and Management, Room 1068, between the hours of 8:00
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.
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FOR FURTHER INFORMATION CONTACT: Lisa Brown, Chief, Policy Management
Department, Department of Veterans Affairs, Chief Business Office,
Purchased Care, 3773 Cherry Creek North Drive, Suite 450, Denver, CO
80209 at (303) 331-7829. This is not a toll-free number.
SUPPLEMENTARY INFORMATION: Over the past two decades, the healthcare
industry has increasingly emphasized providing care in the least
restrictive environment. Care that was provided in hospitals is now
provided with a full range of outpatient and ambulatory care options
previously unavailable. VA has adopted this trend toward outpatient and
ambulatory care and, whenever possible, provides treatment options to
veterans in these less restrictive modes of healthcare delivery.
Although VA has made great strides to expand the delivery of healthcare
to veterans, VA is, like the rest of the healthcare industry,
economically unable to provide all possible services at all VA-operated
venues of care. VA addresses this in part by authorizing non-VA care
when necessary to meet the veteran's plan of care.
VA uses the authority in 38 U.S.C. 1703 to provide certain hospital
care and medical services to eligible veterans when VA facilities are
not capable of providing such services due to geographical
inaccessibility or are not capable of providing the services needed,
ensuring the continuity of care for the patient and the maximization of
healthcare resources. VA may use this authority to provide needed non-
VA care using community resources, such as private physicians or
community hospitals. Care provided under VA's authority in 38 U.S.C.
1703 is usually referred to as the Non-VA Care program. Non-VA care
enables VA to maximize resources and available options for patient care
at the local level, providing care in the least restrictive mode
possible and closer to the patient's home.
Public Law 104-262, 104(b)(2)(B) amended 38 U.S.C. 1703(a)(2)(B) to
expand VA's authority to provide non-VA medical services under the non-
VA care authority. As amended, the law authorizes VA to provide such
medical services for a veteran who has been furnished hospital care,
nursing home care, domiciliary care, or medical services and who
requires medical services to complete treatment incident to such care
or services.
At present, 38 CFR 17.52(a)(2)(ii) provides that ``[a] veteran who
has received VA inpatient care for treatment of nonservice-connected
conditions for which treatment was begun during the period of inpatient
care'' is eligible for non-VA medical services under the non-VA care
authority. The existing VA regulation does not reflect the amendment
made by Public Law 104-262 to 38 U.S.C. 1703(a)(2)(B). This VA
regulation thus does not permit VA to complete a veteran's treatment
through non-VA providers under the non-VA care authority unless the VA
treatment was begun during a period of hospitalization.
VA proposes to amend 38 CFR 17.52(a)(2)(ii) to reflect the current
statutory authority found at 38 U.S.C. 1703(a)(2)(B). In doing so, VA
would increase the availability of care in areas where VA cannot
directly provide the care. Proposed paragraph (a)(2)(ii) of this
revised regulation would provide that veterans who have been furnished
hospital care, nursing home care, domiciliary care, or medical
services, and who require medical services to complete treatment
incident to such care or services, would be eligible for non-VA medical
services under the non-VA care authority. By expanding veterans'
eligibility for non-VA care, VA would be able to better utilize
resources and enhance patient care at the local level. This regulation
would give VA greater flexibility to refer patients for care in the
least restrictive and most convenient setting.
This revision to Sec. 17.52(a)(2)(ii) would clarify the time
period during which veterans are eligible to receive non-VA care to
complete their treatments. Currently, Sec. 17.52(a)(2)(ii) states that
the non-VA care treatment period, which includes ``care furnished in
both facilities of VA and non-VA facilities or any combination of such
modes of care,'' is limited to no more than 12 months after the veteran
is discharged from the hospital, unless VA determines that the veteran
requires continued non-VA care ``by virtue of the disabilities being
treated.'' This revision would clarify that each authorization for non-
VA care needed to complete treatment may continue for up to 12 months,
and that VA may issue new authorizations as needed. The requirement to
issue a new authorization would give VA an opportunity to determine
whether non-VA care continues to be the appropriate means of providing
the veteran's treatment.
We note that this proposed amendment would only affect the
eligibility of certain veterans for medical services provided by a non-
VA provider under the non-VA care authority in 38 U.S.C. 1703; this
proposed amendment would not require providers outside of VA to accept
VA patients. We also note that this proposed amendment would not affect
other provisions in this regulation that specify veterans' eligibility
for non-VA care.
Administrative Procedure Act
Concurrent with this proposed rule, we also are publishing a
separate, substantively identical direct final rule in the ``Rules and
Regulations'' section of this Federal Register. (See RIN 2900-AO47.)
The simultaneous publication of these documents will speed notice and
comment rulemaking under section 553 of the Administrative Procedure
Act should we have to withdraw the direct final rule due to receipt of
any significant adverse comment.
For purposes of the direct final rulemaking, a significant adverse
comment is one that explains why the rule would be inappropriate,
including challenges to the rule's underlying premise or approach, or
why it would be ineffective or unacceptable without change. If VA
receives a significant adverse comment, VA will publish a notice of
receipt of a significant adverse comment in the Federal Register and
withdraw the direct final rule.
Under direct final rule procedures, if no significant adverse
comment is received within the comment period, the direct final rule
will become effective on the date specified in RIN 2900-AO47. After the
close of the comment period, VA will publish a document in the Federal
Register indicating that VA received no significant adverse comment and
restating the date on which the final rule will become effective. VA
will also publish a notice withdrawing this proposed rule.
In the event that VA withdraws the direct final rule because of
receipt of any significant adverse comment, VA will proceed with this
rulemaking by addressing the comments received and publishing a final
rule. The comment period for this proposed rule runs concurrently with
that of the direct final rule. VA will treat any comments received in
response to the direct final rule as comments regarding this proposed
rule. VA will consider such comments in developing a subsequent final
rule. Likewise, VA will consider any significant adverse comment
received in response to the proposed rule as a comment regarding the
direct final rule. VA has determined that it is not necessary to
provide a 60-day comment period for this rulemaking that would merely
align a current regulation with existing statutory authority and make a
minor modification concerning determination of the time period during
which veterans are eligible to receive
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non-VA care to complete their treatments. VA has instead specified that
comments must be received within 30 days of publication in the Federal
Register.
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as proposed to be
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.
Paperwork Reduction Act
This proposed rule 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 defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This proposed rule would affect only VA beneficiaries and does not
affect a substantial number of small entities. Because this proposed
rule would update an existing regulation to make it consistent with
existing statutory authority and reflect current and long-standing VA
practices, VA anticipates no additional expenditures or actions as a
result of this rule. Therefore, under 5 U.S.C. 605(b), this proposed
amendment is exempt from the initial and final regulatory flexibility
analysis requirements of sections 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'' requiring 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 Reform Act
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 expenditures 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 one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.007, Blind Rehabilitation
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans
Prosthetic Appliances; 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 20, 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, Government programs--veterans, Health care,
Health facilities, Health professions, Health records, Homeless, Mental
health programs, Nursing homes, Reporting and recordkeeping
requirements, Veterans.
Dated: November 21, 2012.
Robert C. McFetridge,
Director, 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. Revise Sec. 17.52(a)(2)(ii) to read as follows:
Sec. 17.52 Hospital care and medical services in non-VA facilities.
(a) * * *
(2) * * *
(ii) A veteran who has been furnished hospital care, nursing home
care, domiciliary care, or medical services, and requires medical
services to complete treatment incident to such care or services (each
authorization for non-VA treatment needed to complete treatment may
continue for up to 12 months, and new authorizations may be issued by
VA as needed), and
* * * * *
[FR Doc. 2012-28776 Filed 11-27-12; 8:45 am]
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