[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Rules and Regulations]
[Pages 30767-30768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12252]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO58
Copayments for Medications in 2013
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document adopts as a final rule, without change, an
interim final rule amending the Department of Veterans Affairs (VA)
medical regulations to freeze the copayments required for certain
medications provided by VA until December 31, 2013. Under that rule,
the copayment amounts for all enrolled veterans were maintained at the
same rates as they were in 2012, which were $8 for veterans in priority
groups 2-6 and $9 for veterans in priority groups 7 and 8. On January
1, 2014, the copayment amounts may increase based on the prescription
drug component of the Medical Consumer Price Index (CPI-P).
DATES: Effective Date: This rule is effective on May 23, 2013.
FOR FURTHER INFORMATION CONTACT: Kristin Cunningham, Director, Business
Policy, Chief Business Office, 810 Vermont Avenue NW., Washington, DC
20420, (202) 461-1599. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On December 31, 2012, VA published in the
Federal Register (77 FR 76865) an interim final rule that froze
copayments required for certain medications provided by VA until
December 31, 2013.
Under 38 U.S.C. 1722A(a), VA must require veterans to pay a $2
copayment for each 30-day supply of medication furnished on an
outpatient basis for the treatment of a non-service-connected
disability or condition unless a veteran has a service-connected
disability rated 50 percent or more, is a former prisoner of war, or
has an annual income at or below the maximum annual rate of VA pension
that would be payable if the veteran were eligible for pension. Under
38 U.S.C. 1722A(b), VA ``may,'' by regulation, increase that copayment
amount and establish a maximum annual copayment amount (a ``cap''). We
have consistently interpreted section 1722A(b) to mean that VA has
discretion to determine the appropriate copayment amount and annual cap
amount for medication furnished on an outpatient basis for covered
treatment, provided that any decision by VA to increase the copayment
amount or annual cap amount is the subject of a rulemaking proceeding.
We have implemented this statute in 38 CFR 17.110.
Under 38 CFR 17.110(b)(1), veterans are obligated to pay VA a
copayment for each 30-day or less supply of medication provided by VA
on an outpatient basis (other than medication administered during
treatment). Under the regulation as amended by the interim final rule
published on December 31, 2012, 77 FR 76865, for the period from July
1, 2010, through December 31, 2013, the copayment amount for veterans
in priority categories 2 through 6 of VA's health care system is $8. 38
CFR 17.110(b)(1)(ii). Thereafter, the copayment amount for all affected
veterans will be established using a formula based on the prescription
drug component of the CPI-P, set forth in 38 CFR 17.110(b)(1)(iv). For
veterans in priority categories 7 and 8, the copayment amount from July
1, 2010, through December 31, 2011, was $9. 38 CFR 17.110(b)(1)(iii).
After December 31, 2011, copayments for veterans in priority categories
7 and 8 were subject to the regulatory formula; however, that formula
did not trigger an increase in the copayment amount, so it remains $9.
Current Sec. 17.110(b)(2) also includes a ``cap'' on the total
amount of copayments in a calendar year for a veteran enrolled in one
of VA's health care enrollment system priority categories 2 through 6.
As a result of the interim final rule, the annual cap is set at $960
through December 31, 2013. Thereafter, the cap is to increase ``by $120
for each $1 increase in the copayment amount'' applicable to veterans
enrolled in one of VA's health care enrollment system priority
categories 2 through 6.
VA invited interested persons to submit comments on the interim
final rule on or before March 1, 2013, and we received one comment. The
commenter suggested that VA should not charge veterans a medication
copayment. No changes are made based on this comment. With certain
statutory exceptions set forth in 38 CFR 17.110(c), the provisions of
38 U.S.C. 1722A require veterans to pay a copayment for each 30-day or
less supply of medication furnished on an outpatient basis for the
treatment of a non-service-connected disability or condition. VA has no
authority to exempt veterans from this statutory requirement.
At the end of calendar year 2013, unless additional rulemaking is
initiated, VA will once again use the CPI-P methodology in Sec.
17.110(b)(1)(iv) to determine whether to increase copayments and
calculate any mandated increase in the copayment amount for veterans in
priority categories 2 through 8. At that time, the CPI-P as of
September 30, 2013, will be divided by the index as of September 30,
2001, which was 304.8. The ratio will then be multiplied by the
original copayment amount of $7. The copayment amount of the new
calendar year will be rounded down to the whole dollar amount. As
mandated by current Sec. 17.110(b)(2), the annual cap will be
calculated by increasing the cap by $120 for each $1 increase in the
copayment amount. Any change in the copayment amount and cap, along
with the associated calculations explaining the basis for the increase,
will be published in a Federal Register notice.
Therefore, based on the rationale set forth here and in the interim
final rule, VA is adopting the provisions of the interim final rule as
a final rule with no changes.
Administrative Procedure Act
In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of
Veterans Affairs concluded that there was good cause to dispense with
the opportunity for advance notice and opportunity for public comment
and good cause to publish this rule with an immediate effective date.
The Secretary found that it was impracticable and contrary to the
public interest to delay this rule for the purpose of soliciting
advance public comment or to have a delayed effective date. Increasing
the copayment amount on January 1, 2013, might have caused a
significant financial hardship for some veterans.
[[Page 30768]]
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this
final 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 under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
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 not to be a significant regulatory action under
Executive Order 12866.
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 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 given year. This final rule will have no such effect
on State, local, and tribal governments, or on the private sector.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will 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 final rule will temporarily freeze the copayments that
certain veterans are required to pay for prescription drugs furnished
by VA. This final rule affects individuals and has no impact on 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
The Catalog of Federal Domestic Assistance program number and title
for this rule are as follows: 64.005, Grants to States for Construction
of State Home Facilities; 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; 64.016, Veterans State Hospital 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. Jose D.
Riojas, Interim Chief of Staff, approved this document on May 14, 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 recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Dated: May 20, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
PART 17--MEDICAL
Based on the rationale set forth in the interim final rule
published in the Federal Register at 77 FR 76865 on December 31, 2012,
and in this document, VA is adopting the provisions of the interim
final rule as a final rule with no changes.
[FR Doc. 2013-12252 Filed 5-22-13; 8:45 am]
BILLING CODE 8320-01-P