[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Rules and Regulations]
[Pages 72576-72579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28858]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-A021
Criteria for a Catastrophically Disabled Determination for
Purposes of Enrollment
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending 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. As amended by this rulemaking, the
regulation articulates the clinical criteria that identify an
individual as catastrophically disabled, instead of using the
corresponding International Classification of Diseases, Ninth Revision,
Clinical Modification (ICD-9-CM) and Current Procedural Terminology
(CPT[supreg]) codes. The revisions ensure that the regulation is not
out of date when new versions of those codes are published. The
revisions also broaden some of the descriptions for a finding of
catastrophic disability. Additionally, the final rule does not rely
[[Page 72577]]
on 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: Effective Date: This rule is effective July 1, 2014.
FOR FURTHER INFORMATION CONTACT: Rajiv Jain, MD, Assistant Deputy Under
Secretary for Health for Patient Care Services (10P4), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420, (202) 461-7800. (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
enrollment purposes, Sec. 17.36(e) defines ``catastrophically
disabled'' and, prior to this final rulemaking, Sec. 17.36(e)(1)
identified the covered conditions for catastrophically disabled 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[supreg] will no longer be used for disease and
inpatient procedure coding after October 1, 2014, when they will be
replaced by updated 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). For this reason, and because these codes are subject to
regular update and revision in the future, we published on February 22,
2013 (78 FR 12264), a proposed rule to rely on the clinical and
diagnostic information that formed the basis for the codes listed in
the regulation, rather than relying on the codes by number. We also
proposed to eliminate the MMSE as a criterion for determining whether a
veteran meets the definition of catastrophically disabled. The use of
the MMSE is redundant of the Katz scale, the Global Assessment of
Functioning, and the Functional Independence Measure, which are
referred to in the current regulation as tools to measure an
individual's ability to carry out the Activities of Daily Living. We
provided a 60-day comment period, which ended on April 23, 2013. We
received 2 comments from members of the general public.
One commenter was generally in support of the rulemaking. The
commenter had one concern regarding the ``criteria by which an amputee
may be able to attain Priority Group 4 benefits.'' Specifically, the
commenter was concerned with amputation, detachment, or reamputation of
the forearm at or through the radius and ulna. The commenter stated
that this amendment narrows the definition of catastrophically disabled
instead of the intended purpose of the proposed rulemaking, which was
to broaden the criteria. The commenter further stated: ``Specificity of
injury narrows the range of those that can claim benefits, but the
differen[ce] between a veteran having a catastrophic injury because
some part of his forearm has been amputated versus an amputation that
occurred between the radius and ulna seems to impose an arbitrary
restriction.'' Also, the commenter stated that ``[i]f a veteran's hand
were crushed, for example, it is disabled in the same way an amputated
hand would be. However, under these precise definitions, he would be
denied coverage under Priority Group 4.''
VA considers a veteran to be catastrophically disabled if the
veteran has a condition resulting from two of the procedures listed in
Sec. 17.36(e)(1)(i) through (e)(1)(xvi). The amputation, detachment,
or reamputation of the veteran's forearm at or through the radius and
the ulna does not by itself render a veteran catastrophically disabled.
However, if a veteran's forearm was amputated, detached, or reamputated
at any point, VA would consider this condition as one of the veteran's
qualifying conditions for a determination of catastrophically disabled.
VA does not limit this definition to one specific point in the forearm
as the commenter suggests. The commenter also stated that if the
veteran had a crushed hand this would be the same as amputation.
Depending on the severity of the crushed hand a clinician would
determine whether the injury would meet a criterion under paragraph
(e)(1). Only a clinician may determine if a veteran is catastrophically
disabled based on the veteran's disabilities. We are not making any
changes based on this commenter's concerns.
Another commenter was also partially in agreement with the proposed
rule. The commenter was concerned, however, that by eliminating the
need to update ICD codes VA would not have a mechanism in place to
update the way VA determines that a veteran is catastrophically
disabled. The elimination of the ICD-9-CM and CPT[supreg] codes does
not mean that if the classification of conditions that render a veteran
catastrophically disabled were to change in the future, VA would not
amend its regulations to conform with this change. On the contrary, VA
will continue to comply with the national and international standards
of care and provide veterans with the most up-to-date health care.
The commenter further stated that not relying on the numbered codes
will cause physicians to use a greater level of discretion when
determining who is considered to be catastrophically disabled. The
commenter indicated that while there are terminological clarifications
for blindness, such clarifications do not exist for persistent
vegetative state, ``which seems like it would be equally open to a
variety of understandings by different physicians across the country.''
Although the proposed rule did not provide ``terminological
clarifications'' for persistent vegetative state, this condition has a
medical definition. A vegetative state is present when the body
preserves the ability to maintain blood pressure, respiration, and
cardiac function, but not cognitive function. Kenneth Maiese, MD,
``Vegetative State and Minimally Conscious State,'' http://www.merckmanuals.com/professional/neurologic_disorders/coma_and_impaired_consciousness/vegetative_state_and_minimally_conscious_state.html?qt=persistent%20vegitative%20state&alt=sh (last updated Nov.
2012). A vegetative state is considered persistent if it lasts more
than 1 month. Id. Persistent vegetative state is a term of art that is
recognized in the medical community and requires no further clarifiers.
Also, clinicians must always exercise clinical judgment in the context
of a shared vocabulary, and, even when assigning a particular code,
there will be discretion and occasional deviation within expected and
accepted medical limits.
The commenter was also concerned that the proposed rule stated that
there were no costs or savings associated with the rulemaking. The
commenter indicated that the number of veterans who would be considered
catastrophically disabled would increase in the coming years as
veterans return from the war in Iraq and Afghanistan. VA acknowledges
that the number of catastrophically disabled
[[Page 72578]]
veterans may increase as veterans and servicemembers return from combat
areas. By stating in the proposed rulemaking that there would be no
costs or savings associated with the rulemaking, we meant that by
amending Sec. 17.36(e) VA would not incur additional costs in the
diagnosis of a catastrophic disability by eliminating the ICD-9-CM and
CPT[supreg] codes. We are not making any changes based on any of this
commenter's concerns.
In order for the clinicians to properly codify a veteran as
catastrophically disabled under the provisions of this rulemaking and
for VA to properly codify a veteran in the correct enrollment category,
VA must update its computer system. Because this computer update will
not be in place until next year, we are delaying the applicability date
of this rulemaking until July 1, 2014.
We are making a technical edit to Sec. 17.36(e)(1)(vi) to remove
an inadvertent duplication of the phrase ``of the''.
Based on the rationale set forth in the Supplementary Information
to the proposed rule and in this final rule, VA is adopting the
proposed rule as a final rule with one editorial change.
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).
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 directly affect only individuals and will not
directly affect 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.
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) unless OMB waives such review, 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. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's Web
site at http://www1.va.gov/orpm/ by following the link for ``VA
Regulations Published.''
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 the 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.
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. Jose D.
Riojas, Chief of Staff, Department of Veterans Affairs, approved this
document on October 31, 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: November 27, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set forth 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. Amend Sec. 17.36 as follows:
0
a. Revise paragraph (e)(1).
0
b. Remove paragraph (e)(2)(ii).
[[Page 72579]]
0
c. Redesignate paragraphs (e)(2)(iii) and (iv) as new paragraphs
(e)(2)(ii) and (iii), respectively.
The revisions read 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 reamputation of or through the hand;
(ii) Disarticulation, detachment, or reamputation of or through the
wrist;
(iii) Amputation, detachment, or reamputation 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 reamputation of the arm at or
through the humerus;
(vi) Disarticulation or detachment of the arm at or through the
shoulder;
(vii) Interthoracoscapular (forequarter) amputation or detachment;
(viii) Amputation, detachment, or reamputation 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 reamputation 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. 2013-28858 Filed 12-2-13; 8:45 am]
BILLING CODE 8320-01-P