[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Rules and Regulations]
[Pages 70893-70895]
From the Federal Register Online via the Government Printing 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]
BILLING CODE 8320-01-P