[Federal Register Volume 78, Number 36 (Friday, February 22, 2013)]
[Proposed Rules]
[Pages 12264-12266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04134]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AO21


Criteria for a Catastrophically Disabled Determination for 
Purposes of Enrollment

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulation concerning the manner in which VA determines that a veteran 
is catastrophically disabled for purposes of enrollment in priority 
group 4 for VA health care. The current regulation relies on specific 
codes from the International Classification of Diseases, Ninth 
Revision, Clinical Modification (ICD-9-CM) and Current Procedural 
Terminology (CPT[supreg]). We propose to state the descriptions that 
would identify an individual as catastrophically disabled, instead of 
using the corresponding ICD-9-CM and CPT[supreg] codes. The revisions 
would ensure that our regulation is not out of date when new versions 
of those codes are published. The revisions would also broaden some of 
the descriptions for a finding of catastrophic disability. 
Additionally, we would eliminate the Folstein Mini Mental State 
Examination (MMSE) as a criterion for determining whether a veteran 
meets the definition of catastrophically disabled, because we have 
determined that the MMSE is no longer a necessary clinical assessment 
tool.

DATES: Comments on the proposed rule must be received by VA on or 
before April 23, 2013.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to the 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-AO21, Criteria for a Catastrophically Disabled 
Determination for Purposes of Enrollment.'' 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 (this is not a toll-free number) 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: Margaret C. Hammond, M.D., Acting 
Chief Patient Care Services Officer (10P4), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-7590 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1705, VA established 
eight enrollment categories (in order of priority) for veterans 
eligible to enroll in VA's health care system. Under 38 CFR 
17.36(b)(4), ``veterans who are determined to be catastrophically 
disabled'' are to be enrolled in enrollment priority group 4. For the 
purposes of enrollment, Sec.  17.36(e) defines ``catastrophically 
disabled'' as having ``a permanent severely disabling injury, disorder, 
or disease that compromises the ability to carry out the activities of 
daily living to such a degree that the individual requires personal or 
mechanical assistance to leave home or bed or requires constant 
supervision to avoid physical harm to self or others.'' The regulation 
states that the definition is met if the veteran is found ``to have a 
permanent condition specified in [38 CFR 17.36(e)(1)]'' or ``to meet 
permanently one of the conditions specified in [38 CFR 17.36(e)(2)].'' 
Current paragraph (e)(1) identifies the covered conditions in part by 
assignment of particular tabular diagnosis codes from Volume 1 of the 
ICD-9-CM, associated supplementary codes (V Codes), tabular procedure 
codes from Volume 3 of ICD-9-CM, and procedure codes from the 
CPT[supreg]. (CPT is a trademark of the American Medical Association. 
CPT codes and descriptions are copyrighted by the American Medical 
Association. All rights reserved.) This approach will soon be outdated; 
the ICD-9-CM and CPT will no longer be used for disease and inpatient 
procedure coding after October 1, 2014, when they will be replaced by 
tabular diagnosis and supplementary codes from the International 
Classification of Diseases, Tenth Revision, Clinical Modification (ICD-
10-CM) and by procedure codes from the International Classification of 
Diseases, Tenth Revision, Procedure Coding System (ICD-10-PCS).
    Fortunately, the current regulation also lists the descriptions 
that classify an individual as catastrophically disabled under 
paragraph (e)(1). Those descriptions are the actual basis for the 
various assigned diagnosis codes in the regulation. We believe those 
descriptions listed under current paragraph (e)(1) are sufficient to 
classify an individual as catastrophically disabled and that it is not 
necessary to require the assignment of the particular listed codes. The 
ICD-9-CM diagnostic codes and the ICD-9-CM or CPT[supreg] procedure 
codes are used to represent an actual clinical finding. An examining 
clinician, in practice, examines the veteran and determines the 
veteran's level of disability based on medical criteria or performs 
surgical procedures that are not dependent on the assignment of a 
particular code number. Once the medical criteria are met, the 
physician can match them to an appropriate code. In other words, the 
description of the veteran's medical condition--and not a particular 
code number--forms the basis for a determination of catastrophic 
disability.
    It is fair to say that the new tabular diagnosis and supplementary 
codes from the ICD-10-CM and procedure codes from ICD-10-PCS will 
continue to be updated in future years to ensure accuracy of the codes. 
As a result, VA would need to update this regulation solely to reflect 
changes in those references. This is administratively burdensome, 
particularly when inclusion of such information is not necessary as we 
explained above. We therefore propose to eliminate the references to 
the ICD-9-CM and to the CPT[supreg] in current Sec.  17.36(e)(1). 
Current Sec.  17.36(e)(1) states that a veteran is catastrophically 
disabled if she or he has: ``Quadriplegia and quadriparesis (ICD-9-CM 
Code 344.0x: 344.00, 344.01, 344.02, 344.03, 344.04, 3.44.09), 
paraplegia (ICD-9-CM Code 344.1), blindness (ICD-9-CM Code 369.4), 
persistent vegetative state (ICD-9-CM Code 780.03), or a condition 
resulting from two of the following procedures (ICD-9-CM Code 84.x or 
associated V Codes when available or Current Procedural Terminology 
(CPT) Codes) provided the two procedures were not on the same limb.'' 
As already discussed, we would revise paragraph (e)(1) to eliminate 
references to specific codes. The descriptions of quadriplegia

[[Page 12265]]

and quadriparesis, paraplegia, and persistent vegetative state would be 
unchanged. For this same reason, we would also eliminate the references 
to the ICD-9-CM and to the CPT codes from current Sec.  17.36(e)(1)(i) 
through (e)(1)(xviii).
    In addition, we would replace the word ``blindness'' with ``legal 
blindness defined as visual impairment of 20/200 or less visual acuity 
in the better seeing eye with corrective lenses, or a visual field 
restriction of 20 degrees or less in the better seeing eye with 
corrective lenses.'' The term ``blindness'' in and of itself is 
ambiguous. The regulation associates ``blindness'' with ICD-9-CM Code 
369.4, which applies to ``blindness not otherwise specified according 
to [United States] definition.'' It also ``excludes legal blindness 
with specification of impairment level (369.01-369.08, 369.11-369.14, 
369.21-369.22).'' This is not an accurate description of who we believe 
should be considered catastrophically disabled for purposes of 
enrollment. We believe that the more specific criterion of legal 
blindness in the proposed definition is more consistent with most 
accepted definitions of legal blindness, including the definition used 
by the Social Security Administration (SSA) for determining whether an 
individual is legally blind for purposes of SSA benefits. See 20 CFR 
416.981. We believe that visual acuity greater than 20/200 or greater 
than 20 degrees in visual field restriction does not sufficiently 
compromise a veteran's ``ability to carry out the activities of daily 
living.''
    Current Sec.  17.36(e)(1)(i) lists one of the relevant descriptions 
for a determination of catastrophic disability as: ``Amputation through 
hand (ICD-9-CM Code 84.03 or V Code V49.63 or CPT[supreg] Code 
25927).'' We propose, instead, to refer to: ``Amputation, detachment, 
or re-amputation of or through the hand.'' Similarly, current Sec.  
17.36(e)(1)(ii) lists one of the relevant descriptions for a 
determination of catastrophic disability as: ``Disarticulation of wrist 
(ICD-9-CM Code 84.04 or V Code V49.64 or CPT[supreg] Code 25920).'' We 
propose, instead, to refer to: ``Disarticulation, detachment, or re-
amputation of or through the wrist.'' Again, these descriptions are 
listed under the codes currently listed in the regulation, and 
therefore there will be no substantive change to coverage of these 
descriptions under paragraph (e)(1). We would add detachment and re-
amputation where appropriate in Sec.  17.36(e)(1)(i) through (xvi) 
because we believe that these descriptions have similar clinical 
effects on a veteran's ``ability to carry out the activities of daily 
living,'' as required by the definition of catastrophically disabled in 
current paragraph (e). Again, ``catastrophically disabled means to have 
a permanent severely disabling injury, disorder, or disease that 
compromises the ability to carry out the activities of daily living to 
such a degree that the individual requires personal or mechanical 
assistance to leave home or bed or requires constant supervision to 
avoid physical harm to self or others.'' 38 CFR 17.36(e). Detachment or 
re-amputation of certain limbs or body parts listed under paragraph 
(e)(1) would likewise meet this definition of catastrophically disabled 
and so should be expressly included. It should also be noted that the 
ICD-9-CM or CPT[supreg] codes and the ICD-10-CM or ICD-10-PCS codes 
have different descriptions for the same medical condition. ICD-10-PCS 
also introduces new terminology. For example, the term ``detachment'' 
is not used in the ICD-9-CM codes, however, it is used in the ICD-10-
PCS codes. Likewise, the term ``amputation'' is used in the ICD-9-CM 
codes, but it is not used in the ICD-10-PCS codes. Where applicable, we 
propose to use both terms so that descriptions can be readily 
identified regardless of what code system is used.
    Current Sec.  17.36(e)(1)(iii) lists one of the relevant 
descriptions for a determination of catastrophic disability as: ``(iii) 
Amputation through forearm (ICD-9-CM Code 84.05 or V Code V49.65 or 
CPT[supreg] Codes 25900, 25905).'' We propose, instead, to refer to: 
``(iii) Amputation, detachment, or re-amputation of the forearm at or 
through the radius and ulna.'' We would add ``through the radius and 
ulna'' because this specificity is used in the CPT[supreg] codes 
currently referenced in the regulation and, more importantly, removes 
any uncertainty about the amputation procedure being referred to in the 
proposed regulation. This specificity is currently provided by 
referencing the code number. Similarly, we would add anatomical 
specificity to proposed paragraphs (e)(1)(iv) through (viii) and (xi) 
through (xvi) to eliminate any confusion about the procedures being 
referred to in the proposed regulation once the code numbers are 
removed.
    Current Sec.  17.36(e)(1)(iv) lists one of the relevant 
descriptions for a determination of catastrophic disability as: ``(iv) 
Disarticulation of forearm (ICD-9-CM Code 84.05 or V Code V49.66 or 
CPT[supreg] Codes 25900, 25905).'' We would remove this criterion 
because it is redundant with paragraph (e)(1)(iii).
    We propose to remove current paragraph (e)(2)(ii). Under current 
paragraph (e)(2)(ii), an individual must have a score of 10 or lower 
using the MMSE. However, an individual with a score of 10 or lower on 
the MMSE would always be found permanently dependent in at least 3 
Activities of Daily Living with a rating of 1 using the Katz scale; or 
score 2 or lower on at least 4 of the 13 motor items using the 
Functional Independence Measure; or score 30 or lower using the Global 
Assessment of Functioning, which are covered by current paragraphs 
(e)(2)(i), (e)(2)(iii), and (e)(2)(iv). Use of the MMSE for purposes of 
paragraph (e)(2) is therefore redundant.
    Current Sec.  17.36(e)(1)(xv) lists one of the relevant 
descriptions for a determination of catastrophic disability as: ``(xv) 
Disarticulation of knee (ICD-9-CM Code 84.16 or V Code V49.76 or 
CPT[supreg] Code 27598).'' It should be noted that ICD-9-CM Code 84.16 
refers to disarticulation of knee; V49.76 refers to status of 
amputation above knee; CPT[supreg] Code 27598 refers to disarticulation 
at knee; ICD-10-PCS Codes 0Y6F0ZZ and 0Y6G0ZZ refer to detachment of 
knee. We would combine these codes into one description in proposed 
Sec.  17.36(e)(1)(xiii), amputation or detachment of the lower leg at 
or through the knee. We would, therefore, not list disarticulation of 
the knee as a separate description.

Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this 
proposed rulemaking, would represent the exclusive legal authority on 
this subject. No contrary rules or procedures are authorized. All VA 
guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

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

[[Page 12266]]

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 not to be a significant regulatory action under 
Executive Order 12866.

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).

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 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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

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 they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This proposed rule would directly affect only 
individuals and would not directly affect any small entities. 
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.

Catalog of Federal Domestic Assistance Numbers

    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; 
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 12, 2013, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Day care, Dental health, Drug abuse, Health care, Health facilities, 
Health professions, Health records, Homeless, Medical and dental 
schools, Medical devices, Medical research, Mental health programs, 
Nursing homes, Veterans.

    Dated: February 19, 2013.
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

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.  17.36 as follows:
0
a. Revise paragraph (e)(1).
0
b. Remove paragraph (e)(2)(ii).
0
c. Redesignate paragraphs (e)(2)(iii) and (iv) as new paragraphs 
(e)(2)(ii) and (iii), respectively.
    The revision reads as follows:


Sec.  17.36  Enrollment--provision of hospital and outpatient care to 
veterans.

* * * * *
    (e) * * *
    (1) Quadriplegia and quadriparesis; paraplegia; legal blindness 
defined as visual impairment of 20/200 or less visual acuity in the 
better seeing eye with corrective lenses, or a visual field restriction 
of 20 degrees or less in the better seeing eye with corrective lenses; 
persistent vegetative state; or a condition resulting from two of the 
following procedures, provided the two procedures were not on the same 
limb:
    (i) Amputation, detachment, or re-amputation of or through the 
hand;
    (ii) Disarticulation, detachment, or re-amputation of or through 
the wrist;
    (iii) Amputation, detachment, or re-amputation of the forearm at or 
through the radius and ulna;
    (iv) Amputation, detachment, or disarticulation of the forearm at 
or through the elbow;
    (v) Amputation, detachment, or re-amputation of the arm at or 
through the humerus;
    (vi) Disarticulation or detachment of the of the arm at or through 
the shoulder;
    (vii) Interthoracoscapular (forequarter) amputation or detachment;
    (viii) Amputation, detachment, or re-amputation of the leg at or 
through the tibia and fibula;
    (ix) Amputation or detachment of or through the great toe;
    (x) Amputation or detachment of or through the foot;
    (xi) Disarticulation or detachment of the foot at or through the 
ankle;
    (xii) Amputation or detachment of the foot at or through malleoli 
of the tibia and fibula;
    (xiii) Amputation or detachment of the lower leg at or through the 
knee;
    (xiv) Amputation, detachment, or re-amputation of the leg at or 
through the femur;
    (xv) Disarticulation or detachment of the leg at or through the 
hip; and
    (xvi) Interpelviaabdominal (hindquarter) amputation or detachment.
* * * * *
[FR Doc. 2013-04134 Filed 2-21-13; 8:45 am]
BILLING CODE 8320-01-P