[Federal Register Volume 78, Number 241 (Monday, December 16, 2013)]
[Rules and Regulations]
[Pages 76061-76063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29311]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO46
Authorization for Non-VA Medical Services
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This Department of Veterans Affairs (VA) rulemaking amends
VA's regulations regarding payment by VA for medical services under
VA's statutory authority for non-VA medical care. In the Federal
Register on November 28, 2012, VA proposed to remove an outdated
regulatory limitation on veterans' eligibility to be referred for non-
VA medical care. On the same date, VA also published a companion direct
final rule that would have made the same amendments effective on
January 28, 2013, if no significant adverse comments were received.
Because VA received adverse comments on the direct final rule, VA is
withdrawing it in a companion document in this issue of the Federal
Register. This rulemaking includes VA's responses to comments on the
proposed and direct final rules.
DATES: Effective Date: This rule is effective January 15, 2014.
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: On November 28, 2012, VA proposed a rule in
the Federal Register, at 77 FR 70967, to amend its regulations
authorizing non-VA medical care. Under our non-VA medical care
authority in 38 U.S.C. 1703, VA may provide certain hospital care
(inpatient care) and medical services (outpatient care) for eligible
veterans when VA facilities are not capable of providing economical
services due to geographical inaccessibility or are not capable of
providing the services needed. VA proposed to revise its existing
regulation, at 38 CFR 17.52(a)(2)(ii), to
[[Page 76062]]
remove a limitation that barred VA from authorizing non-VA medical
services for certain veterans who had not previously been furnished VA
hospital care. Without this revision, these veterans were eligible for
non-VA medical services under Sec. 17.52(a)(2)(ii) to complete
treatment of a nonservice-connected disability only if they had
received VA hospital care for that disability.
On the same date, VA published a companion direct final rule at 77
FR 70893 that would have made the same amendments as those in the
proposed rule effective on January 28, 2013, if no adverse public
comments were received. The direct final rule and proposed rule each
provided a 30-day comment period that ended on December 28, 2012. VA
received comments on the proposed rule and direct final rule, including
some adverse comments. VA is, therefore, withdrawing the direct final
rule in a companion document in this issue of the Federal Register. VA
addresses comments received on both the direct final and proposed rules
in this action.
This final rule adopts the proposed rule without changes.
We received several comments urging VA to expand eligibility for
non-VA medical care to allow all veterans the option of using the
program for any needed treatment. VA lacks statutory authority to make
this change. VA may provide non-VA medical care under 38 U.S.C. 1703
only in limited circumstances: When VA cannot provide economical
hospital care or medical services because of geographic
inaccessibility, or when VA facilities are not capable of providing the
hospital care or medical services that a veteran needs. See 38 U.S.C.
1703(a). Further, if those conditions are met, VA has authority to
provide non-VA medical care to a veteran only if the veteran meets the
eligibility requirements set forth in section 1703. Thus, VA cannot
make the changes these commenters request because to do so would be
contrary to VA's statutory authority under 38 U.S.C. 1703.
One commenter who recommended that VA allow veterans to choose to
receive care from private providers also stated that ``VA hospitals
should be for emergency care and for those who are having operations
and need weeks or months to recover, such as multi-trauma cases,''
suggesting that all other care should be referred to non-VA providers.
We emphasize that the VA health care system does provide emergency
medical services and hospital care to eligible veterans, including
surgical services and acute inpatient polytrauma rehabilitation, as
recommended by the commenter. By statute, the VA health care system
must also provide ``a complete medical and hospital service for the
medical care and treatment of veterans'' (38 U.S.C. 7301(b)) and
therefore cannot reduce the availability of VA care in the manner
suggested by the commenter. VA makes no changes based on this comment.
One commenter expressed support for this regulation and stated that
veterans receiving non-VA emergency treatment would not need to be
transferred from a non-VA hospital to a VA hospital to complete
treatment. This comment does not accurately characterize the effect of
this rulemaking. To clarify, this action only applies to the provision
of non-VA medical services after the veteran has received VA care and
the non-VA medical services are needed to complete the VA care.
One commenter stated that VA should not ``duplicat[e] medical
services readily available by well qualified providers'' and that
``[m]any veterans are forced by current VA practices to utilize local
medical services, even though the services are in theory available from
the VA at other than a `local' VA facility.'' This comment can be
interpreted in two ways. One interpretation is that some veterans are
forced to pay for their own care from community providers in order to
avoid traveling when their local VA facilities refer them to VA
facilities located in other geographic areas. Another interpretation is
that VA refers veterans to community providers when care would be
better provided at a VA facility. Neither interpretation is within the
scope of this rulemaking. VA therefore does not make any changes to
this rulemaking based on these comments.
The same commenter recommended that veterans' ``expenses in
utilizing [Medicare] should be offset by VA reimbursement.'' We note
that the VA health care system and Medicare are separate programs run
under distinct statutory authorities. VA has no authority to reimburse
Medicare beneficiaries for expenses they incur to obtain medical care
under Medicare in the manner suggested by the commenter (see 42 U.S.C.
1395y(a)(3)). VA does not make any changes based on this comment.
One commenter asked whether this rulemaking would result in
additional administrative burdens for veterans to obtain referrals or
for providers to obtain payments for non-VA medical care. This
rulemaking only removes a limitation; it does not create any new
burdens or procedures. VA's regulations and policies pertaining to how
veterans obtain referrals and how VA processes payments for non-VA
medical care will remain the same. There will be no additional
administrative burden on veterans or non-VA providers as a result of
this rulemaking.
The majority of the comments that VA received on this rulemaking
requested that VA allow hearing-aid specialists to perform diagnostic
hearing evaluations for veterans. We received over one hundred comments
on this issue. Some of the commenters requested to become recognized VA
providers. VA allows only audiologists to perform such evaluations. We
are not aware of any State that licenses hearing-aid specialists to
perform such evaluations. VA will consider these comments internally as
appropriate, but the request is outside the scope of this rulemaking,
so we make no changes based on these comments.
VA received a comment expressing support for the proposed rule, but
expressing concern about a draft request for proposals issued by VA for
the procurement of non-VA medical care surgical services. This
rulemaking affects only eligibility for non-VA medical services, and
not VA's means of procuring such services. This comment, therefore, is
outside of the scope of the regulation, and we make no changes based on
it. VA will consider this comment in its evaluation of the draft
request for proposals as appropriate.
VA received a comment expressing support for the proposed rule, but
asking VA to remove ``a burdensome regulatory requirement that
prescriptions for veterans must be written by a VA-affiliated provider
for the veteran to obtain the prescription at the VA's discounted
price. Instead, the VA should recognize the validity of a community-
based physician's prescription.'' We do not make changes based on this
comment because the issue is outside the scope of this regulation. VA
will consider the recommendation internally as appropriate.
VA received one comment expressing support for the proposed rule
and requesting that physicians certified by osteopathic boards of
medicine be included in all VA activities concerning veterans'
healthcare. This comment is outside the scope of this regulation, but
no change is required for VA to fulfill the request because VA
considers doctors of osteopathic medicine as physicians, and does not
distinguish between physicians based on their types of degrees.
VA received one comment stating ``[v]ote no.'' Since the commenter
did
[[Page 76063]]
not state a reason for disagreeing with this rulemaking, VA does not
make any changes based on this comment.
In addition to the comments described above, VA received several
comments expressing general support for the proposed rulemaking.
Based on the rationale set forth in the proposed rule and in this
document, VA is adopting the provisions of the proposed rule as a final
rule with no changes.
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 directly affects only individuals and will not
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b),
this amendment is exempt from the initial and final regulatory
flexibility analysis requirements of 5 U.S.C. 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. 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 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. Jose D.
Riojas, Chief of Staff, Department of Veterans Affairs, approved this
document on November 6, 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, 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: December 4, 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 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. 2013-29311 Filed 12-13-13; 8:45 am]
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