[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Rules and Regulations]
[Pages 70893-70895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28778]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO47
Authorization for Non-VA Medical Services
AGENCY: Department of Veterans Affairs.
ACTION: Direct final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is taking direct final
action 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 amendment revises 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: This final rule is effective on January 28, 2013, without
further notice, unless VA receives a significant adverse comment by
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-AO47--
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.
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.
[[Page 70894]]
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 is amending its regulation at 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 will increase the availability of care in areas where VA
cannot directly provide the care. Paragraph (a)(2)(ii) of this revised
regulation provides 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, are eligible for non-VA medical services under the non-VA
care authority. By expanding veterans' eligibility for non-VA care, VA
will be able to better utilize resources and enhance patient care at
the local level. This regulation will 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) clarifies 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 clarifies 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 gives 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 amendment only affects 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 amendment does not
require providers outside of VA to accept VA patients. We also note
that this amendment does not affect other provisions in this regulation
that specify veterans' eligibility for non-VA care.
Administrative Procedure Act
VA believes this rule is non-controversial, anticipates that this
rule will not result in any significant adverse comment and, therefore,
is issuing this regulatory amendment as a direct final rule. Previous
actions of this nature, which remove restrictions on VA medical
benefits to improve health outcomes, have not been controversial and
have not resulted in significant adverse comments or objections.
However, in the ``Proposed Rules'' section of the Federal Register, VA
is publishing a separate, substantially identical proposed rule that
will serve as a proposal for the provisions in this direct final rule
in the event that any significant adverse comment is received by VA.
(See RIN 2900-AO46.)
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. In determining whether an adverse
comment is significant and warrants withdrawing a direct final rule, we
will consider whether the comment raises an issue serious enough to
warrant a substantive response in a notice-and-comment process in
accordance with section 553 of the Administrative Procedure Act (5
U.S.C. 553). Comments that are frivolous, insubstantial, or outside the
scope of the rule will not be considered adverse under this procedure.
For example, a comment recommending an additional change to the rule
will not be considered a significant comment unless the comment states
why the rule would be ineffective or unacceptable without the
additional change.
Under direct final rule procedures, if no significant adverse
comment is received within the comment period, this rule will become
effective on the date specified above. 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 in the Federal Register withdrawing the proposed rule, RIN 2900-
AO46.
In the event that VA withdraws the direct final rule because of
receipt of any significant adverse comment, VA will proceed with the
rulemaking by addressing the comments received and publishing a final
rule. The comment period for the 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 the 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 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 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 final rule contains no provisions constituting a collection of
information
[[Page 70895]]
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment will
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 rule affects only VA beneficiaries and does not affect a
substantial number of small entities. Because this rule updates 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 rulemaking 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 final rule will 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 19, 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 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. 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. 2012-28778 Filed 11-27-12; 8:45 am]
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