[Federal Register Volume 78, Number 30 (Wednesday, February 13, 2013)]
[Proposed Rules]
[Pages 10117-10122]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02993]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO15
Use of Medicare Procedures To Enter Into Provider Agreements for
Extended Care Services
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This rulemaking proposes to amend the medical regulations of
the Department of Veterans Affairs (VA) to allow VA to use Medicare or
State procedures to enter into provider agreements to obtain extended
care services from non-VA providers. In addition, this rulemaking
proposes to include home health care, palliative care, and
noninstitutional hospice care services as extended care services, when
provided as an alternative to nursing home care. Under this proposed
rule, VA would be able to obtain extended care services for veterans
from providers who are closer to veterans' homes and communities.
DATES: Comments must be received by VA on or before March 15, 2013.
ADDRESSES: Written comments may be submitted by email through http://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.
Comments should indicate that they are submitted in response to ``RIN
2900-AO15, Use of Medicare Procedures to Enter Into Provider Agreements
for Extended Care Services.'' Copies of comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m.
Monday through Friday (except holidays). Please call (202) 461-4902 for
an appointment. In addition, during the comment period, comments may be
viewed online through the Federal Docket Management System (FDMS) at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Daniel Schoeps, Office of Geriatrics
and Extended Care (10P4G), Department of Veterans Affairs, 810 Vermont
Avenue NW., Washington, DC 20420; (202) 461-6763. (This is not a toll-
free number.)
SUPPLEMENTARY INFORMATION: Subsection (a) of 38 U.S.C. 1710B authorizes
VA to provide extended care services to eligible veterans, including
geriatric evaluation, nursing home care, domiciliary services, and
adult day health care. Subsection (a) of 38 U.S.C. 1720 authorizes VA
to pay for the nursing home care in non-VA facilities of eligible
veterans and eligible members of the Armed Forces. Section 1720(f)
authorizes VA to furnish (in VA and non-VA facilities) adult day health
care to enrolled veterans who would otherwise need nursing home care.
Contracts between VA and these non-VA facilities are currently
negotiated under Federal contract statutes and regulations (including
the Federal Acquisition Regulation, which is set forth at 48 CFR
chapter 1; and VA Acquisition Regulations, which are set forth at 48
CFR chapter 8).
We propose to establish a new 38 CFR 17.75, which would implement
VA's authority to use Medicare procedures to enter into provider
agreements. Section 105 of the Veterans Health Care, Capital Asset, and
Business Improvement Act of 2003 (Pub. L. 108-170) amended section 1720
to authorize VA to use these procedures. This amendment, which is
codified at 38 U.S.C. 1720(c)(1), authorizes VA to enter into
agreements with providers of nursing home care, adult day health care,
and other community-based extended care services under ``the procedures
available for entering into provider agreements under section 1866(a)
of the Social Security Act.'' Section 1866(a) (codified at 42 U.S.C.
1395cc(a)) authorizes the Department of Health and Human Services to
enter into agreements with participating Medicare providers, and
specifies the terms of those agreements.
The plain language of 38 U.S.C. 1720(c)(1)(B) authorizes VA, in its
discretion, to furnish extended care services through non-VA providers
using the above-described noncontractual mechanism. Moreover, the
legislative history of Public Law 108-170 further shows that its
purpose was to improve VA's ability to furnish eligible veterans with
extended care services of non-VA providers by using a noncontractual
mechanism. A Senate committee report explains that Medicare procedures
are simpler and less burdensome than VA contracting procedures. The
report includes the following discussion of this provision:
Under current law, VA is authorized to enter into contractual
arrangements with private providers of extended care services to
serve the needs of veterans. Federal reporting requirements relating
to the demographics of contractor employees and applicants are
required to be submitted to the Department of Labor under these
contractual arrangements. The Committee has learned that, due to
these reporting requirements,
[[Page 10118]]
many small providers of extended care services are unable, or they
are unwilling, to admit VA patients. Many such providers have
apparently concluded that reimbursement from VA for caring for one
or two veterans is not worth the cost of compiling and reporting the
data required by general Federal contract law.
The Social Security Act allows the Centers for Medicare and
Medicaid Services (hereinafter, ``CMS'') to enter into provider
agreements for the provision of care to both Medicare and Medicaid
beneficiaries. Such agreements require that contractors comply with
Federal laws concerning hiring practices. But they do not require
that providers prepare reports of such compliance. Nor do they
subject providers to annual audits like most Federal contracts do.
Not surprisingly, CMS is more successful than VA in inducing smaller
providers to provide care to its beneficiaries.
Section 102 of the Committee bill places VA contractors in a
similar position as CMS contractors with respect to Federal
reporting requirements. By this action, the Committee seeks to
encourage VA to bring care closer to veterans' homes and community
support structures by contracting with small community-based
providers. Even so, however, the Committee fully anticipates and
expects that VA will require compliance with all applicable Federal
laws concerning employment and hiring practices.
S. Rep. No. 108-193, at 6 (2003), as reprinted in 2003 U.S.C.C.A.N.
1783, 1788. To clarify the above quotation, the Social Security Act
allows for the Centers for Medicare and Medicaid Services (CMS) to
enter into provider agreements with Medicare providers only. States,
not CMS, enter into provider agreements with Medicaid providers.
Medicare agreements enable a provider to bill and receive reimbursement
for Medicare-covered services furnished by the provider. The terms of
those agreements often concern the kind and quality of care to be
provided. Although those CMS and State agreements do not involve the
provision of care, Congress specifically authorized VA to use provider
agreements under 38 U.S.C. 1720(c)(1)(B) ``for furnishing'' care.
Accordingly, we propose to establish a VA regulation regarding use of
provider agreements. We believe that by using these agreements, VA
would be able to obtain services from providers who are closer to
veterans' homes and community support structures.
Proposed Sec. 17.75(a) would define ``[e]xtended care services''
as ``geriatric evaluation; nursing home care; domiciliary services;
adult day health care; noninstitutional palliative care,
noninstitutional hospice care, and home health care when they are
noninstitutional alternatives to nursing home care; and respite care.''
The proposed definition is derived from 38 U.S.C. 1710B(a), which
requires VA to ``operate and maintain a program to provide extended
care services,'' and requires that such extended care services include
geriatric evaluation, nursing home care, domiciliary services, adult
day health care, respite care, and ``[s]uch other noninstitutional
alternatives to nursing home care as the Secretary may furnish as
medical services under [38 U.S.C. 1701(10)].'' 38 U.S.C. 1710B(a)(1)-
(6).
We propose to include home health care in the definition of
``[e]xtended care services'' as a noninstitutional alternative to
nursing home care because in many circumstances it would be a
noninstitutional alternative to nursing home care. For example, a
veteran applying for nursing home care would receive a person-centered
assessment by a VA health care team. The team, working with the veteran
and caregiver, would explore care needs and how these needs could be
met. In this process, they may decide that a combination of skilled
nursing, home health aide, and respite services would meet the
veteran's needs and allow the veteran to remain at home. In this case,
home health services would avert a nursing home placement. We also
propose to include noninstitutional palliative and noninstitutional
hospice care in the definition because they would always be
alternatives to nursing home care.
We understand that Medicare and States do not necessarily enter
into provider agreements for all the services listed under the proposed
definition for ``extended care services.'' We are proposing only to
enter into provider agreements with providers that do have a Medicare
or State provider agreement for the services listed in this proposed
rule as ``extended care services.'' VA would continue to use contracts
and other mechanisms to ensure that veterans receive needed health care
services for which they are eligible, but for which there is no
available provider agreement. Additionally, many States enter into
provider agreements for a broader array of services than those listed
in this proposed rule. We do not intend to enter into agreements that
would expand beyond the scope of those services specifically listed in
the proposed definition of extended care services.
Including home health care, noninstitutional palliative care, and
noninstitutional hospice care in the definition of extended care
services would not require VA to consider these services as extended
care services for purposes of determining whether a copayment is
required. Noninstitutional hospice care is exempt from both outpatient
and extended care copayments. 38 U.S.C. 1710(g)(1), 1710B(c)(2)(B).
Noninstitutional palliative care is a form of home health care, and the
law currently requires VA to charge the outpatient copayment for home
health care. 38 U.S.C. 1710(g)(1).
As noted above, under 38 U.S.C. 1710B(a)(5), VA is required to
``operate and maintain a program to provide extended care services''
that includes ``[s]uch * * * noninstitutional alternatives to nursing
home care as the Secretary may furnish as medical services under [38
U.S.C. 1701(10)]''. 38 U.S.C. 1710B(a)(5). However, section 1701 no
longer contains a subsection (10).
Prior to enactment of section 801 of Public Law 110-387, 38 U.S.C.
1701(10) defined medical services to include noninstitutional extended
care services provided through December 31, 2008, and defined such
services as follows: ``[T]he term `noninstitutional extended care
services' means such alternatives to institutional extended care which
[VA] may furnish (i) directly, (ii) by contract, or (iii) (through
provision of case management) by another provider or payer.'' See 38
U.S.C. 1710(10) (2008). With the enactment of Public Law 110-387 in
2008, section 1701 was amended to essentially move subsection (10) to
subsection (6)(E) of section 1701 which provides that medical services
include ``[n]oninstitutional extended care services, including
alternatives to institutional extended care that [VA] may furnish
directly, by contract, or through provision of case management by
another provider or payer.'' Public Law 110-387, title VIII, Sec. 801
(Oct. 10, 2008). Thus, the language of former subsection (10) and
current subsection (6)(E) is virtually identical, except that
subsection (6)(E) does not contain the 2008 sunset provision. We
therefore believe that the reference to section 1701(10) in 38 U.S.C.
1710B(a)(5) must now be read as a reference to section 1701(6)(E).
Consistent with section 1720(c)(1), we would define ``[p]rovider''
in Sec. 17.75(a) to mean any non-VA entity that provides extended care
services and is participating in Medicare under title XVIII of the
Social Security Act or a State Medicaid plan under title XIX of the
Social Security Act (42 U.S.C. 1396 et seq.) pursuant to a valid
provider agreement. This could include physicians and other providers
who provide extended care services to veterans in non-VA nursing homes.
In proposed paragraph (b), we would implement VA's authority under
section 1720(c)(1) to obtain extended care
[[Page 10119]]
services from non-VA providers, and would set forth the conditions
under which such services may be obtained. Paragraph (b)(1) would
prescribe that VA may enter into provider agreements for extended care
services with non-VA providers who have a Medicare provider agreement
with CMS. Paragraph (b)(2) would prescribe that VA may also enter into
provider agreements for extended care services with non-VA providers
who do not have a Medicare provider agreement with CMS if the provider
is participating in a State Medicaid plan. Section 1720(c)(1) clearly
authorizes VA to enter into provider agreements with non-VA providers
of extended care services that participate in the Medicare program or a
State Medicaid plan. A number of States enter into provider agreements
related to services not otherwise covered by Medicare. For example,
States often enter into provider agreements with Medicaid adult day
health care providers, which are not eligible for similar agreements
under Medicare.
Proposed paragraph (c)(1) would establish the procedure that VA
would use to notify a provider of the agreement that VA proposes to use
to obtain extended care services from the provider. The Director of the
VA medical center of jurisdiction would provide written notification
identifying the applicable Medicare or State Medicaid provider
agreement to be used and the changes and additional terms that would
apply to the agreement with VA, and would request written acceptance of
the agreement from the provider. This documentation would serve as a
record for both VA and the provider that an agreement is in place and
of the parties' acceptance of all the terms of the adopted agreement.
Therefore, VA would not attempt to obtain services under a provider
agreement from the provider until after the provider's acceptance is
received. For providers with both Medicare and State Medicaid
agreements, the letter would clarify which of the two provider
agreements would be used as the basis for VA's provider agreement.
Paragraph (c)(2) would establish that the terms and rates of a
provider's agreement with VA would be the same as the terms and rates
of the provider's separate Medicare provider agreement with CMS or
agreement under a State Medicaid plan, or, if a provider has agreements
with both Medicare and under a State Medicaid plan, the terms and rates
would be the same as the agreement with the highest rates. VA's payment
under the agreement with the highest rates would serve as an incentive
to encourage providers to enter into agreements with VA for the care of
veterans. We interpret VA's authority under section 1720(c)(1)(B) to
use Medicare procedures as also authorizing the use of rates
established under the appropriate Medicare fee schedule or payment
system because there are no procedures for rate negotiation in
obtaining Medicare provider agreements.
Although a provider's agreement with VA would generally contain the
same terms as the provider's separate Medicare provider agreement or
agreement under a State Medicaid plan, VA would need unique terms for
purposes of identifying VA as the Government agency entering into the
agreement with the provider and paying for the provider's services for
veterans. Since the purpose of this proposed rule is to address the
needs of specific veterans or groups of veterans based upon location
and the availability of VA resources, VA might also need unique
agreement terms to limit the scope of the agreement consistent with
VA's authority under section 1720(c)(1)(B). Accordingly, proposed
paragraph (c)(3) would clarify that a provider's agreement with VA will
not be the same as the provider's agreement with CMS under Medicare or
under a State Medicaid plan to the extent that the provider's agreement
with VA will identify VA as the Government agency entering into the
agreement and specify that the provider's services are for specific
veterans or groups of veterans. It would also make clear that the
provider's agreement with VA would be administered by VA according to
the procedures in this proposed rule and not under the rules applicable
to the administration of Medicare provider agreements with CMS or
agreements under a State Medicaid plan. In all other respects, VA
intends that a provider's agreement with VA will be the same as the
provider's Medicare provider agreement with CMS or under a State
Medicaid plan.
Proposed paragraph (d) would delegate to the Director of the VA
medical center of jurisdiction (or a designee) the authority to enter
into an agreement under the proposed rule. Under paragraph (d)(1), we
would also establish that the criteria for whether to enter into an
agreement under this section will be based on the needs of local
veterans and the ability of VA to provide for those needs. For example,
where VA does not provide equivalent care in a particular locality, or
where providing VA care would be more expensive than providing care
through a non-VA provider, VA would enter into agreements under this
section. Similarly, if resources permit, wherever possible VA would
enter into an agreement with a provider selected by the veteran. This
is consistent with the purpose of section 1720(c)(1)(B), which is to
help veterans receive the care that they require from providers in
their own communities, as well as to improve the efficiency of care
delivery from an economic perspective. However, we do not interpret
section 1720(c)(1) as creating any right to care pursuant to a provider
agreement or any right to enter into a provider agreement with VA. We
interpret the statute as authorizing care pursuant to an agreement when
a Director, based upon medical judgment and evaluation of available
resources, determines that an agreement is in the best interest of the
veteran under the Director's care.
Under proposed paragraph (d)(2), VA would empower the veteran to
select his or her preferred provider, should more than one provider
exist within a given region, subject to the provider's determination to
accept the veteran, clinical appropriateness and available resources at
the VA medical center of jurisdiction. VA understands the significance
of placing such an important life decision in the hands of the veteran
and would only intervene if a provider was not able to provide the care
clinically required by the veteran, or the VA medical center of
jurisdiction is simply unable to accommodate the veteran's selection
due to limited resources. Foreseeable strains on resources that might
prevent VA from accommodating a veteran's request could include whether
the veteran has special needs that can be addressed by resources in
that region or whether VA has sufficient staff to monitor the veteran
in a particular facility due to the facility being remote or because VA
is monitoring several veterans at another facility that is distant from
the veteran's preferred provider. The decision to approve or deny a
particular provider for an agreement with VA would be made by the
Director (or designee) according to the criteria prescribed in
paragraphs (d)(2)(A), (B), and (C).
Proposed paragraph (d)(3) would establish that the factual
determination of whether a provider is eligible to enter into an
agreement with VA to provide extended care services for veterans will
be made based on evidence of an existing Medicare provider agreement or
agreement under a State Medicaid plan as verified through Web sites
maintained by CMS or the appropriate State office.
Proposed paragraph (e) would govern termination of a VA provider
agreement. Under paragraph (e)(1), we would allow
[[Page 10120]]
a provider to voluntarily terminate an agreement but we would require
the provider to notify VA at least 15 days in advance of the planned
termination and provide the intended date of termination. The 15-day
requirement would provide VA with a reasonable amount of time to secure
alternative arrangements for affected veterans. VA would require 15
days to find an arrangement that is suitable for the veteran and
provides a potential for long-term care. We determined that a notice of
termination period of less than 15 days would likely require an
unsatisfactory short-term solution. Such a solution might require
multiple relocations of, or multiple caregiver changes for, an affected
veteran in order to meet their immediate health care needs. We have
determined that the 15-day notice requirement would allow VA to protect
veterans from the physical, mental, and emotional health risks caused
by multiple changes in their care plan and/or living arrangement.
Proposed paragraph (e)(2) would set forth when VA may terminate an
agreement. VA would also be required to give providers at least 15 days
notice before terminating an agreement. If, however, VA finds that the
health of the veteran is in immediate jeopardy, VA would be authorized
to terminate the agreement with only 2 days notice. The termination of
the agreement should not be confused with VA's ability to physically
remove the veteran from a dangerous situation, which can be done as
soon as necessary in order to protect the health of the veteran.
Proposed paragraph (e)(2) thus would assert VA's right to remove a
veteran from a dangerous situation prior to terminating the applicable
provider agreement.
Proposed paragraph (f) would establish procedures for appeal of a
Director's decision not to enter into a VA provider agreement or to
terminate an agreement. A provider may appeal a decision issued by the
Director by filing a written request for review with the Chief
Consultant, Office of Geriatrics and Extended Care. An appeal must be
filed in writing within 90 days after the date of the Director's
decision. The Chief Consultant would provide written notice of the
determination, which would constitute the final agency decision
regarding eligibility for or termination of a VA provider agreement.
The notice would explain why the decision is appropriate.
Proposed paragraph (g) would state that providers need not comply
with the Service Contract Act of 1965 (set forth at 41 U.S.C. 351, et
seq.). This is the law referred to in the legislative history that
requires contractors to report to the Department of Labor. While this
Act applies to contracts entered into by the United States for services
through the use of service employees, it does not apply to Medicare
providers because they do not enter into contracts with the United
States--Medicare provider agreements with CMS are used instead of
contracts. However, proposed paragraph (g) would require that providers
comply with all other applicable Federal laws concerning employment and
hiring practices including the Fair Labor Standards Act, National Labor
Relations Act, the Civil Rights Acts, the Age Discrimination in
Employment Act of 1967, the Vocational Rehabilitation Act of 1973,
Worker Adjustment and Retraining Notification Act, Sarbanes-Oxley Act
of 2002, Occupational Health and Safety Act of 1970, Immigration Reform
and Control Act of 1986, Consolidated Omnibus Reconciliation Act, the
Family and Medical Leave Act, the Americans with Disabilities Act, the
Uniformed Services Employment and Reemployment Rights Act, the
Immigration and Nationality Act, the Consumer Credit Protection Act,
the Employee Polygraph Protection Act, and the Employee Retirement
Income Security Act. This is consistent with the legislative history
set forth above.
We would rescind all conflicting internal VA guidance that could be
interpreted as providing an alternate benefit pertaining to extended
care services. Specifically, we would rescind Veterans Health
Administration (VHA) Handbooks 1143.2, ``VHA Community Nursing Home
Oversight Procedures''; 1140.6, ``Purchased Home Health Care Services
Procedures''; and 1140.5, ``Community Hospice Care: Referral and
Purchase Procedures''; and VHA Manual M-5 Part III, Chapter 6,
pertaining to Community Residential Care. This policy guidance would be
reissued in connection with the final rule.
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.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined to be a significant regulatory action under the
Executive Order.
Comment Period
Although under the rulemaking guidelines in Executive Order 12866,
VA ordinarily provides a 60-day comment period, the Secretary has
determined that there is good cause to limit the public comment period
on this proposed rule to 30 days. VA does not expect to receive a large
number of comments on this proposed rule, particularly comments that
are negative or that oppose this rule, because it would increase the
opportunity for veterans to obtain non-VA extended care services from
local providers that furnish vital and often life-sustaining medical
services. Accordingly, VA has provided that comments must be received
within 30 days of publication in the Federal Register.
Paperwork Reduction Act
The proposed rule does not contain any collections of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that the provisions of 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. The proposed rule would not have a
significant economic impact on any small entities because such entities
would obtain only an insignificant
[[Page 10121]]
portion of their business from VA. Therefore, pursuant to 5 U.S.C.
605(b), this rulemaking is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act 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 an 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 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 program numbers and
titles affected by this rulemaking are 64.007, Blind Rehabilitation
Centers; 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 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 5, 2013, 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 record-keeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Dated: February 6, 2013.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 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. Add an undesignated center heading and Sec. 17.75 immediately after
Sec. 17.74 to read as follows:
Agreements for Extended Care Services
Sec. 17.75 Agreements for extended care services.
(a) Definitions. For purposes of this section:
Extended care services means geriatric evaluation; nursing home
care; domiciliary services; adult day health care; noninstitutional
palliative care, noninstitutional hospice care, and home health care
when they are noninstitutional alternatives to nursing home care; and
respite care.
Provider means any non-VA entity that provides extended care
services and is participating in Medicare or a State plan under title
XIX of the Social Security Act pursuant to a valid provider agreement.
(b) Eligible providers from whom VA may obtain extended care
services. Subject to paragraph (d) of this section, VA may obtain
extended care services from providers under this section only if:
(1) The provider has entered into a Medicare provider agreement
under 42 U.S.C. 1395cc(a) with the Centers for Medicare & Medicaid
Services (``CMS agreement''); or
(2) If the provider has not entered into a Medicare provider
agreement, but the provider is participating in an agreement under a
State plan under title XIX of the Social Security Act (42 U.S.C. 1396
et seq.).
(c) Terms of agreements. (1) The Director of the VA medical center
of jurisdiction, or designee, will send to a provider written
notification that identifies the Medicare provider agreement or
agreement under a State Medicaid plan that VA proposes to use as the
basis for its agreement to obtain extended care services, identifies
the changes and any additional terms that would apply to the provider
agreement, and requests written acceptance from the provider of that
agreement. VA will not obtain extended care services from the provider
through a provider agreement until such acceptance is received.
(2) Provider agreements with VA under this section must reflect the
following:
(i) For a provider with a valid Medicare provider agreement, the
terms of the provider's agreement with VA, including the payment rates,
will be the same as the terms of the provider's agreement with CMS
pursuant to the Medicare Enrollment Application for Institutional
Providers (OMB No. 0938-0685).
(ii) For providers with no Medicare provider agreement but one or
more agreements under a State plan, the terms of the provider's
agreement with VA, including the payment rates, will be the same as the
terms of the provider's agreement with the State that pays the highest
rates.
(iii) For providers with both a Medicare provider agreement and an
agreement under a State Medicaid plan, the terms of the provider's
agreement with VA, including the payment rates, will be the same as the
CMS or State agreement that provides for the higher rates.
(iv) The provider shall not charge any individual, insurer, or
entity (other than VA) for the items or services obtained by VA under
this section.
(3) The terms of the provider's agreement with VA will be different
from the provider's separate agreement with CMS or a State only to the
extent that the non-VA agreement prescribes terms or procedures
inconsistent with this section and that it is necessary to identify VA
as the Government agency entering into the agreement with the provider
and paying for the provider's services for veterans.
(d) Decisions regarding agreements. (1) The Director of the VA
medical center of jurisdiction, or designee, will decide, based upon
medical judgment regarding the health care needs of veterans in the
community and the availability and feasibility of VA or local resources
to efficiently provide for those needs, whether it is necessary to
enter into provider agreements for extended care services.
(2) If there is more than one provider in a given region, the
veteran will select his or her preferred provider, subject to:
(i) The provider's determination to accept the veteran;
(ii) The availability and feasibility of resources at the VA
medical center of jurisdiction; and
(iii) The determination of the Director of the VA medical center of
jurisdiction, or designee, that the services offered by
[[Page 10122]]
the provider would be clinically appropriate for the care of the
veteran.
(3) Factual determination of whether a provider has a Medicare
provider agreement or an agreement under a State Medicaid plan will be
based on verification of an existing agreement. Medicare provider
agreements will be verified using CMS Web sites, which list providers
with agreements. State agreements will be verified using appropriate
State Web sites, which list providers with agreements, or using records
maintained by the appropriate State office.
(e) Termination of agreements. (1) A provider that wishes to
terminate its agreement with VA must send written notice of its intent
at least 15 days before the effective date of termination of the
agreement. The notice shall include the intended date of termination.
(2) VA may terminate an agreement with any provider if the Director
of the VA medical center of jurisdiction, or designee, determines that
the provider's service is no longer required or that the provider is
not complying with a provision of the provider agreement, and must
terminate an agreement with a provider that no longer has a Medicare
provider agreement with CMS or no longer participates under a State
Medicaid plan. VA will provide written notice of termination at least
15 days before the effective date of termination of the provider
agreement. If the Director of the VA medical center of jurisdiction, or
designee, determines the health of the veteran to be in immediate
jeopardy, VA will provide notice of termination at least 2 days before
the effective date of termination of the provider agreement. VA may
physically remove a veteran from a dangerous situation at any time in
order to protect the health of the veteran prior to terminating the
applicable provider agreement.
(f) Appeals. Appeals of a determination by the Director of the VA
medical center of jurisdiction, or designee, not to enter into or to
terminate a VA provider agreement must be made in writing to the Chief
Consultant, Office of Geriatrics and Extended Care, no later than 90
days after the date of the decision being appealed. The decision of the
Chief Consultant will constitute a final agency decision.
(g) Compliance with Federal laws. Under agreements entered into
under this section, providers are not required to comply with reporting
and auditing requirements imposed under the Service Contract Act of
1965, as amended (41 U.S.C. 351, et seq.); however, providers must
comply with all other applicable Federal laws concerning employment and
hiring practices including the Fair Labor Standards Act, National Labor
Relations Act, the Civil Rights Acts, the Age Discrimination in
Employment Act of 1967, the Vocational Rehabilitation Act of 1973,
Worker Adjustment and Retraining Notification Act, Sarbanes-Oxley Act
of 2002, Occupational Health and Safety Act of 1970, Immigration Reform
and Control Act of 1986, Consolidated Omnibus Reconciliation Act, the
Family and Medical Leave Act, the Americans with Disabilities Act, the
Uniformed Services Employment and Reemployment Rights Act, the
Immigration and Nationality Act, the Consumer Credit Protection Act,
the Employee Polygraph Protection Act, and the Employee Retirement
Income Security Act.
(Authority: 38 U.S.C. 501, 1720; 42 U.S.C. 1395cc)
[FR Doc. 2013-02993 Filed 2-12-13; 8:45 am]
BILLING CODE 8320-01-P