[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21897-21907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10114]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ06
Authority of Health Care Providers To Practice Telehealth
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
medical regulations by standardizing the delivery of care by VA health
care providers through telehealth. This rule ensures that VA health
care providers can offer the same level of care to all beneficiaries,
irrespective of the State or location in a State of the VA health care
provider or the beneficiary. This final rule achieves important Federal
interests by increasing the availability of mental health, specialty,
and general clinical care for all beneficiaries.
DATES: This final rule is effective June 11, 2018.
FOR FURTHER INFORMATION CONTACT: Kevin Galpin, MD, Executive Director
Telehealth Services, Veterans Health Administration Office of Connected
Care, 810 Vermont Avenue NW, Washington, DC 20420, (404) 771-8794,
(this is not a toll-free number), [email protected].
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on October 2, 2017, VA proposed to amend its medical
regulations by standardizing the delivery of health care by VA health
care providers through telehealth. 82 FR 45756. VA provided a 30-day
comment period, which ended on November 1, 2017. We received 75
comments on the proposed rule.
Section 7301 of title 38, United States Code (U.S.C.), establishes
the general functions of the Veterans Health Administration (VHA)
within VA, and establishes that its primary function is to ``provide a
complete medical and hospital service for the medical care and
treatment of veterans, as provided in this title and in regulations
prescribed by the Secretary [of Veterans Affairs (Secretary)] pursuant
to this title.'' See 38 U.S.C. 7301(b). The Secretary is responsible
for the proper execution and administration of all laws administered by
the Department and for the control, direction, and management of the
Department, including agency personnel and management matters. See 38
U.S.C. 303. To this end, Congress authorized the Secretary ``to
prescribe all rules and regulations which are necessary or appropriate
to carry out the laws administered by the Department and are consistent
with those laws.'' See 38 U.S.C. 501(a). The Under Secretary for Health
is directly responsible to the Secretary for the operation of VHA. See
38 U.S.C. 305(b). Unless specifically otherwise provided, the Under
Secretary for Health, as the head of VHA, is authorized to ``prescribe
all regulations necessary to the administration of the Veterans Health
Administration,'' subject to the approval of the Secretary. See 38
U.S.C. 7304.
To allow VA to carry out its medical care mission, Congress also
established a comprehensive personnel system for certain VA health care
providers, independent of the civil service rules.
[[Page 21898]]
See 38 U.S.C. chapters 73-74. Congress granted the Secretary express
statutory authority to establish the qualifications for VA's health
care providers, determine the hours and conditions of employment, take
disciplinary action against employees, and otherwise regulate the
professional activities of those individuals. See 38 U.S.C. 7401-7464.
To be eligible for appointment as a VA employee in a health care
position covered by 38 U.S.C. 7402(b) (other than a medical facility
Director appointed under section 7402(b)(4)), a person must, among
other requirements, be licensed, registered, or certified to practice
his or her profession in a State. The standards prescribed in section
7402(b) establish only the basic qualifications necessary ``[t]o be
eligible for appointment'' and do not limit the Secretary or Under
Secretary for Health from establishing other qualifications for
appointment, or additional rules governing such personnel. In
particular, section 7403(a)(1) provides that appointments under chapter
74 ``may be made only after qualifications have been established in
accordance with regulations prescribed by the Secretary, without regard
to civil-service requirements.'' Such authority is necessary to ensure
the viability of our national health care system, which is designed to
ensure the well-being of those who have ``borne the battle.''
Just as it is critical to ensure there are qualified health care
providers on-site at all VA medical facilities, VA must ensure that all
beneficiaries, specifically including beneficiaries in remote, rural,
or medically underserved areas, have the greatest possible access to
mental health care, specialty care, and general clinical care. Thus, VA
developed a telehealth program as a modern, beneficiary- and family-
centered health care delivery model that leverages electronic
information or telecommunication technologies to support clinical
health care, patient and professional health-related education, public
health, and health administration, irrespective of the State or
location within a State where the health care provider or the
beneficiary is physically located at the time the health care is
provided. Telehealth enhances VA's capacity to deliver essential and
critical health care services to beneficiaries located in areas where
certain health care providers may be unavailable or to beneficiaries
who may be unable to travel to the nearest VA medical facility for care
because of their medical conditions. By providing health care services
by telehealth from one State to a beneficiary located in another State
or within the same State, whether that beneficiary is located at a VA
medical facility or in his or her own home, VA can use its limited
health care resources most efficiently.
Congress has required other Departments and agencies to conduct
telehealth programs. See, e.g., Public Law 114-328, sec. 718(a)(1)
(``the Secretary of Defense shall incorporate, throughout the direct
care and purchased care components of the military health system, the
use of telehealth services''). While VA does not have an analogous
mandate, several statutes confirm that Congress intends for VA to
operate a national health care system for beneficiaries that includes
telehealth. Congress has required the Secretary ``to carry out an
initiative of teleconsultation for the provision of remote mental
health and traumatic brain injury assessments in facilities of the
Department that are not otherwise able to provide such assessments
without contracting with third-party providers or reimbursing providers
through a fee basis system.'' See 38 U.S.C. 1709A(a)(1). Congress has
authorized the Secretary to ``waive the imposition or collection of
copayments for telehealth and telemedicine visits of veterans under the
laws administered by the Secretary.'' See 38 U.S.C. 1722B. And, as
recently as December 2016, Congress required VA to initiate a pilot
program to provide veterans a self-scheduling, online appointment
system; this pilot program must ``support appointments for the
provision of health care regardless of whether such care is provided in
person or through telehealth services.'' See Public Law 114-286, sec.
3(a)(2).
In an effort to furnish care to all beneficiaries and use its
resources most efficiently, VA needs to operate its telehealth program
with health care providers who will provide services via telehealth to
beneficiaries in States in which they are not located, licensed,
registered, certified, or otherwise authorized by the State. Without
this rulemaking, doing so may jeopardize these providers' credentials,
including fines and imprisonment for unauthorized practice of medicine,
because of conflicts between VA's need to provide telehealth across the
VA system and some States' laws or requirements for licensure,
registration, certification, that restrict the practice of telehealth.
A number of States have already enacted legislation or regulations that
restrict the practice of interstate telehealth.
This final rulemaking clarifies that VA health care providers may
exercise their authority to provide health care through the use of
telehealth, notwithstanding any State laws, rules, licensure,
registration, or certification requirements to the contrary. In so
doing, VA is exercising Federal preemption of conflicting State laws
relating to the practice of health care providers; laws, rules,
regulations, or other requirements are preempted to the extent such
State laws conflict with the ability of VA health care providers to
engage in the practice of telehealth while acting within the scope of
their VA employment. Preemption is the minimum necessary action for VA
to furnish effective telehealth services because it would be
impractical for VA to lobby each State to remove any restrictions that
impair VA's ability to furnish telehealth services to beneficiaries and
then wait for the State to implement appropriate changes. That process
would delay the growth of telehealth services in VA, thereby delaying
delivery of health care to beneficiaries. It would be costly and time-
consuming for VA and would not guarantee a successful result. We note
that, apart from the limited action of authorizing telehealth across
and within jurisdictions in furtherance of important Federal interests,
this rulemaking does not expand the scope of practice for VA health
care providers beyond what is required or authorized by Federal law and
regulations or as statutorily defined in the laws and practice acts of
the health care provider's State of licensure. Additionally, this
rulemaking does not affect VA's existing requirement that all VA health
care providers adhere to restrictions imposed by their State license,
registration, or certification regarding the professional's authority
to prescribe and administer controlled substances. To further clarify
this point, we have changed subsection (b) to clearly state that this
section does not otherwise grant health care providers additional
authorities that go beyond what is required or authorized by Federal
law and regulations or as defined in the laws and practice acts of the
health care providers' State license, registration, or certification.
This is simply a clearer statement of the policy articulated in the
proposed rule, but is being added because of the public comments we
received expressing differing views on this matter.
For these reasons, VA is establishing a new regulation, 38 CFR
17.417, that authorizes VA health care providers to treat beneficiaries
through telehealth irrespective of the State, or of the location in a
State, of the VA health care provider or the beneficiary.
Most of the comments that were received on the proposed rule
support
[[Page 21899]]
the rule and are summarized as follows. We received several comments
supporting the rule saying that it would increase access to health
care, specifically for those beneficiaries who live in rural and
medically underserved areas who are not able to go to a VA medical
facility either because of their location or their medical conditions.
We also received many comments in support of the rule stating that
telehealth has been shown to improve clinical outcomes and would
improve the quality of care at VA. The commenters stated that the
telehealth program would be successful in treating beneficiaries with a
variety of conditions, including respiratory conditions, cardiovascular
conditions, psychotherapy, post-traumatic stress disorder, traumatic
brain injuries, Parkinson's disease, multiple sclerosis, vision loss,
sleep disorders, and audiological conditions. One commenter summarized
key clinical studies demonstrating the benefits of telehealth
technologies. Similarly, commenters stated that more convenient access
to health care would result in more personalized care, more engagement
by beneficiaries and their caregivers, better health outcomes, and an
improved quality of life. Several commenters stated that the proposed
rule would help streamline health care for veterans and would
facilitate modern, beneficiary and family centered health care.
In addition to the benefits for VA beneficiaries, many commenters
supported the rule because it would benefit VA more generally and VA's
health care providers. A commenter supported the rule, saying that it
would protect health care providers while they are practicing within
the scope of their VA employment. Multiple commenters supported the
rule citing its cost effectiveness. In addition, a commenter said that
it would result in shorter appointments for patients and physicians and
would also decrease appointment no-show rates. Other commenters said
that the rule would reduce the use and cost of transportation, save
beneficiaries and their caregivers hours of their time and lost wages,
result in hospital cost savings through decreased emergency room and
hospital visits, and increase local revenues for laboratories and
pharmacies. In addition, multiple commenters supported the rule stating
that State licensing barriers hindered telehealth and that it was
necessary to remove artificial and geographic State barriers. A
commenter also stated that they supported the proposed rule because it
would provide opportunities for the medical students and residents who
train at VA to become familiar with telehealth and be exposed to its
optimal uses.
Several commenters supported the rule because it did not include
contract physicians. In particular, one commenter stated that contract
physicians are not subject to the same accountability, oversight,
training, and quality control as those employed directly by VA. We are
not making any edits based on these positive comments.
In addition to the previously discussed comments supporting the
rule, the Federal Trade Commission (FTC) also submitted a supportive
comment. Specifically, the FTC said that the rule would likely increase
access to telehealth services, increase the supply of telehealth
providers, increase the range of choices available to patients, improve
health care outcomes, reduce long-term costs by reducing
hospitalizations and treatment of advanced disease, and reduce travel
costs incurred by VA. The rule would also enhance price and non-price
competition and improve the ability of VA to compete more effectively
by hiring qualified providers and reducing VA's health care costs. FTC
also stated that the rule would provide an important example to non-VA
health care providers, state legislatures, employers, patients, and
others of telehealth's potential benefits and may spur innovation among
other health care providers and, thereby, promote competition and
improve access to care. In addition, FTC stated that the rule may
afford a valuable opportunity to gather data and provide additional
evidence for VA and outside policymakers to assess the effects of
telehealth expansion, thereby benefitting VA beneficiaries and health
care consumers generally. We are not making any edits based on these
comments.
We received multiple comments that favored VA's proposed rule and
that focused on how VA could utilize specific commercially available
software and company products. The commenters believed that these
products could improve the telehealth services described in the
proposed rule. We appreciate the commenters' suggestions and innovative
solutions, but these comments are beyond the scope of the proposed
rule, which does not address the specific technology or platforms VA
uses in furnishing telehealth. We are not making any edits based on
these comments.
A commenter was in support of the proposed rule but added that the
rule should extend to all VA-funded health services. The proposed rule
only addressed the protection of VA health care providers while
providing telehealth services within the scope of their VA employment.
We do not believe it is prudent or necessary at this time to include
contract providers within the scope of this rule. We are not making any
edits based on this comment.
A commenter supported the rule, but indicated that VA should have a
mechanism in place to monitor the overall satisfaction and health of
the beneficiaries who receive care via telehealth. VA is committed to
ensuring that beneficiaries receive high quality health care. VA has
controls in place to continuously monitor the health care provided by
all VA health care providers, including telehealth providers. This rule
will not affect the quality of the health care provided or the internal
controls currently in place. We are not making any edits based on this
comment.
Several commenters indicated that the rule should be extended to
cover health care providers who participate in the Veterans Choice
Program, authorized by section 101 of the Veterans Access, Choice, and
Accountability Act of 2014 or other health care furnished by non-
Department providers. Similarly, another commenter said that the rule
restricts VA ``regarding contracting with an outside entity that may be
able to fill a need through Choice or any other community care
program.'' The commenter stated that VA can ensure that a contractor
meets the full standard of VA appointees by requiring that the
contractor be a VA appointee and requiring that the contractor meet the
licensure and credentialing requirements of 38 U.S.C. 7402(b).
VA acknowledges that the rule does not provide the same protection
for community health care providers furnishing care for VA, including
health care providers who participate in the Choice Program, as it does
for VA health care providers. The proposed rule stated that a health
care provider must be appointed by VA and cannot be a VA-contracted
health care provider. Community health care providers may practice
telehealth; however, they would be required to adhere to their
individual State license, registration, or certification requirements
and would not be otherwise covered by this rule. We do not believe it
is prudent or necessary at this time to include contract providers
within the scope of this rule. Additionally, contractors are not given
an appointment to VA; only employees are given appointments. To
[[Page 21900]]
further clarify this point, we have changed subsection (a)(2)(iv) to
clearly state that this section does not apply to VA-contracted health
care providers. This is simply a clearer statement of the policy
articulated in the proposed rule, but is being added because of the
public comments in which there is confusion as to whether a contractor
is a VA employee. Finally, community providers may be unable or
unwilling to furnish telehealth across State lines. The Federal Tort
Claims Act (FTCA) would cover VA providers in the event of a
malpractice claim, but FTCA does not cover community providers. It is
unclear whether or not the insurers or State level tort claims acts
would cover community providers in the case of malpractice. We are not
making any other edits based on these comments.
A commenter stated that VA should pay physicians under the Veterans
Choice Program at or above the Medicare rate, and that VA should
include rural health clinics in the Veterans Choice Program. These
issues are related to administration of the Veterans Choice Program and
not to this rule, which governs VA employees' authority to practice
telehealth. This comment is, therefore, beyond the scope of the
proposed rule. We are not making any edits based on this comment.
Several commenters indicated that VA should take further efforts to
combat States' laws restricting telehealth. We stated in the proposed
rule that it would be ``impractical for VA to lobby each State to
remove its restrictions that impair VA's ability to furnish telehealth
services to beneficiaries and then wait for the State to implement
appropriate changes.'' We understand the commenters' concerns and agree
that having equitable State laws relating to telehealth would be ideal.
However, such action is beyond the scope of this rulemaking. We are not
making any edits based on these comments.
Several commenters were in favor of the rule but stated that
registered nurses, nurse practitioners, physician assistants, and
advanced practice registered nurses should be allowed to practice to
the full extent of their clinical education, training, and national
certificates. Several commenters also indicated that VA should prohibit
the supervision of certified registered nurse anesthetist services from
being included as part of the expansion of telehealth services in VA.
The granting of full practice authority to certain advanced practice
registered nurses has already been addressed via rulemaking. See 38 CFR
17.415 and 81 FR 90198. Moreover, the proposed rule only addressed the
types of settings where VA health care providers could provide
telehealth services and established that all VA health care providers
may be allowed to practice telehealth. As previously said in this
rulemaking, the proposed rule does not expand VA health care providers'
authority beyond what is required or authorized by Federal law and
regulations or as defined in the laws and practice acts of the health
care provider's State of licensure. Any changes except preempting State
laws, rules, regulations and requirements that restrict VA's telehealth
authority are beyond the scope of the proposed rule. We are not making
any edits based on these comments.
One commenter was concerned that health care providers would not be
protected under their medical malpractice insurance plans. This
rulemaking will allow VA to better protect its health care providers
who practice telehealth within the scope of their VA employment,
regardless of conflicting State laws or regulations. The FTCA is the
exclusive remedy ``for damages for personal injury, including death,
allegedly arising from malpractice or negligence of a health care
employee of the [Veterans Health] Administration in furnishing health
care or treatment while in the exercise of that employee's duties in or
for the Administration.'' See 38 U.S.C. 7316. Subsection (c) of the
statute provides in part: ``Upon a certification by the Attorney
General that the defendant was acting in the scope of such person's
employment in or for the Administration at the time of the incident out
of which the suit arose, any such civil action or proceeding commenced
in a State court shall be . . . deemed a tort action brought against
the United States under the provisions of title 28 and all references
thereto.'' VA health care providers would, therefore, be protected from
personal liability while providing care within the scope of their VA
employment, including the provision of telehealth services. We are not
making any edits based on this comment.
Several commenters were concerned that a health care provider would
not be protected from all individual actions by the State against the
provider's license, registration, or certification by the proposed
rule. Another commenter indicated that a health care provider would be
engaged in unauthorized health care practice unless the provider was
licensed, registered, or certified in the State where they practice. As
we said in the proposed rule, ``VA would exercise Federal preemption of
State licensure, registration, and certification laws, rules,
regulations, or requirements to the extent such State laws conflict
with the ability of VA health care providers to engage in the practice
of telehealth while acting within the scope of their VA employment.''
We also said that ``in circumstances where there is a conflict between
Federal and State law, Federal law would prevail in accordance with
Article VI, clause 2, of the U.S. Constitution (Supremacy Clause).''
Therefore, VA health care providers are protected by this final rule
from any actions by individual States or State licensing boards to
enforce a State law, rule, regulation or requirement while VA health
care providers are practicing telehealth within the scope of their VA
employment. We are not making any edits based on these comments.
A commenter strongly supported States' ability to regulate the
practice of telehealth within their State, saying that ``only
physicians and surgeons licensed in [a State] should be allowed to
practice medicine in [in that State], in order to ensure the highest
quality medical care is being provided to health care consumers.'' The
commenter further said that the proposed rule ``would undermine [the
State's] ability to protect health care consumers, as the Board will
have no ability to discipline VA providers that are licensed in another
state and providing telehealth outside of a VA facility in [that
State], as they do not hold a license to practice medicine in [their
State].'' VA disagrees that this rulemaking will undermine the States'
abilities to protect their health care consumers. VA has robust
requirements for disciplining providers who fail to provide adequate
health care, which includes reporting that provider to his or her
licensing board, if applicable. We are not making any edits based on
this comment.
One commenter recommended that VA work to improve the system for
investigating, removing, and reporting bad providers to State licensing
boards and also recommended that this be part of the policy that would
implement this rulemaking. Another commenter also expressed concern
that if a State cannot discipline a physician practicing medicine
within its borders, it undermines the medical licensure system. VA
currently has a system in place for reporting health care providers to
State licensing boards whose behavior or clinical practice so
substantially failed to meet generally-accepted standards of clinical
practice as to raise reasonable concern for the safety of patients. VA
continues to work closely with State licensing boards to further
improve the reporting of VA
[[Page 21901]]
health care providers who have failed in VA's mission of providing safe
care to its beneficiaries. Patients would still have the ability to
file a tort claim and States would still have ability to prosecute for
criminal offenses. However, this rulemaking only focuses on the
expansion of VA telehealth services and only prohibits States from
taking actions to enforce a State law, rule, regulation or requirement
against VA health care providers while practicing telehealth. We are
not making any edits based on these comments.
One commenter indicated that telehealth may not be the appropriate
means of delivering health care to beneficiaries with some mental
health conditions. Another commenter said that telehealth would not
benefit homeless beneficiaries who suffer from mental conditions. We
agree with the commenters that telehealth may not be the most
appropriate means for the delivery of health care for all
beneficiaries. However, health care providers and beneficiaries will
have the opportunity to determine the best treatment option for the
delivery of health care in each individual situation. We also agree
that the delivery of health care via telehealth in a beneficiary's home
may not be a viable means of health care for a homeless beneficiary.
However, homeless beneficiaries may still benefit from telehealth
visits from their local VA medical facility. A homeless beneficiary can
be seen in a VA medical facility and be treated for his or her health
condition from a health care specialist who is remotely performing the
health care visit from another VA medical facility. We are not making
any edits based on these comments.
Several commenters were concerned that the health care provider
would rely on verbal communication and not be able to observe symptoms
such as manic behaviors, tremors, cuts, bruises, or other possible
signs of self-imposed injuries that would have otherwise been visible
in an in person exam. A commenter said that health care providers would
get a limited medical history by examining a beneficiary via
telehealth, especially if the beneficiary has comorbidities and
addictions that may not be obvious via telehealth. The commenter
further said that beneficiaries could be misdiagnosed and some health
care conditions missed if the beneficiary was only seen via telehealth.
Another commenter said that a face to face interview helps a health
care provider gain a better rapport with a patient. Another commenter
was also concerned that the continuity of health care would be affected
because the primary care provider would not have access to the
telehealth records and thus be presented with an incomplete medical
history of the patient. This would especially be detrimental if the
beneficiary had been prescribed medications during the telehealth
visit. The commenter indicated that the beneficiary would receive a
lower quality of care via telehealth than what they would have received
in an in-person health care visit. Another commenter said that the use
of telehealth for eye care services should not substitute the benefits
of an in-person eye examination. This rulemaking authorizes VA
providers to offer telehealth services as an option for beneficiaries
irrespective of the location of the health care provider or the
beneficiary. The rule enhances the accessibility of VA health care by
providing beneficiaries an additional option through which they can
engage in the health care system. The rule does not create a
requirement for service delivery through telehealth; instead, it
empowers health care providers and beneficiaries to choose when
telehealth is appropriate. VA believes that the health care provider
and the beneficiary are in the best position to make decisions about
the risks and benefits of any health care decision and will ultimately
decide the best option for the delivery of such care. Also, VA health
care providers will have access to a beneficiary's health record during
a telehealth visit and the telehealth visit will become part of the
health record. We are not making any edits based on these comments.
Several commenters questioned the privacy of the beneficiary when
video-conferencing was used. The commenters were concerned that the
telehealth visit would be intercepted by a third party, which would
violate the beneficiary's privacy. A commenter was also concerned that
putting the beneficiary's information on an online database would give
rise to Health Insurance Portability and Accountability Act (HIPAA) and
security concerns. Another commenter said that the proposed rule did
not ``identify security standards or other requirements VA health care
providers are expected to abide by when providing services via
telehealth.'' Information security and privacy are critical priorities
for VA. The Veterans Health Administration, and its telehealth program,
work hand in hand with the VA Office of Information Technology and
Information Security when implementing telehealth programs. Equipment,
software, and process choices are made to mitigate security risks and
ensure adherence to the Federal Government's stringent information
security and privacy requirements, including standards defined by the
Federal Information Security Management Act, the National Institute of
Standards and Technology, the Privacy Act, and HIPAA. As an example of
one measure to protect privacy, clinical video data is encrypted to
mitigate the risk of third party interception during video visits.
Beneficiary data will not be stored outside VA, nor will it persist on
the beneficiary's device following the telehealth session. All VA
employees, including health care providers, have to adhere to the
privacy and security standards implemented by VA. We are not making any
edits based on these comments.
Another commenter strongly felt that beneficiaries should be seen
in-person at least once before being prescribed medication, including
controlled substances. Several commenters encouraged VA to establish an
interagency working group between VA, the Food and Drug Administration,
and the Drug Enforcement Administration (DEA) to ensure that
beneficiaries have safe access to care by modernizing rules regarding
advanced practice registered nurses prescriptive authority. The
proposed rule said that the rule ``does not affect VA's existing
requirement that all VA health care providers adhere to restrictions
imposed by their State license, registration, or certification
regarding the professional's authority to prescribe and administer
controlled substances.'' We also said in the proposed rule that health
care providers will continue to be subject to the limitations ``imposed
by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the
authority to prescribe or administer controlled substances, as well as
any other limitations on the provision of VA care set forth in
applicable Federal law and policy.'' Any change to the Controlled
Substances Act or the creation of a working group is outside the scope
of the proposed rule. We are not making any edits based on these
comments.
One commenter was concerned that there might be insurance fraud on
the part of health care providers who practice in one State and deliver
health care services via telehealth in another State. VA health care
providers would not directly engage in third party insurance claims.
Moreover, billing is beyond the scope of this rulemaking. We are not
making any edits based on this comment.
Another commenter said that VA does not allow for ``potential and
applicable
[[Page 21902]]
copayments and deductibles to be collected at the time of service for
eligible veterans receiving care or services.'' The commenter finds
that not allowing this type of copayment collection is ``unworkable and
contrary to medical office billing practices.'' We stated in the
Supplementary Information paragraph of the proposed rule that
``Congress has authorized the Secretary to ``waive the imposition or
collection of copayments for telehealth and telemedicine visits of
veterans under the laws administered by the Secretary.'' See 38 U.S.C.
1722B.'' Also, under 38 CFR 17.108(e)(16), in-home video telehealth
care is not subject to the collection of copayments. We are not making
any edits based on these comments.
Several commenters expressed concern that beneficiaries may not
have access to a computer or the internet. The commenters were
concerned that these beneficiaries would not be able to access health
care via telehealth because of the lack of technology in the
beneficiary's home. Another commenter was concerned that there might be
potential connectivity issues in rural areas due to limited access to
broadband internet. A commenter questioned whether VA would assist a
beneficiary in setting up the telehealth services or provide financial
assistance for the equipment or internet access. A commenter requested
that VA clarify whether electronic information or telecommunications
technologies includes video conferencing and telephone. VA continues to
look into solutions to resolve technical difficulties in its expansion
of telehealth services. This rulemaking addresses one critical barrier
to standardizing service availability via telehealth, inclusive of
video conferencing, telephone, and other telecommunication
technologies, but does not address all barriers, including the access
to technology. We are not making any edits based on these comments.
A commenter questioned how the proposed rule would be affected by
another proposed rule on Prosthetic and Rehabilitative Items and
Services and how this other rule would impact telehealth service
provision of certain equipment and services. The proposed rule does not
address how VA would provide equipment used in telehealth visits. The
provision of telehealth equipment is beyond the scope of the proposed
rule. We are not making any edits based on this comment.
A commenter asked whether VA would offer ``cyber-clinical rooms''
in VA medical facilities to provide telehealth services. Where
beneficial, VA will equip space for telehealth assessments. We are not
making any edits based on this comment.
One commenter questioned how the beneficiary will know if
telehealth is available to them for their health care needs. As
previously said in this final rule, telehealth enhances the
accessibility of VA health care by providing beneficiaries an
additional option through which they can engage in the VA health care
system. The rulemaking leaves the discussion about the health care
modality chosen to the health care provider and the beneficiary. Also
neither this final rule nor the proposed rule prescribe the details of
how the telehealth program will be further implemented. We are not
making any edits based on this comment.
One commenter was concerned that the proposed rule did not address
how a ``potential emergent situation would be addressed in situations
where neither party is located at a VA medical center or other clinical
site especially if the telehealth encounter occurs across state
lines.'' The commenter stressed that VA should evaluate its protocols
on telehealth to ensure continued patient safety, including having a
back-up plan in case of an emergent situation, identifying a family
member or other individual as a point of contact if the beneficiary
experiences a crisis, and other types of local assistance for the
beneficiary. VA has standard guidance to address emergent situations
when providers and beneficiaries are not located at a VA medical
facility or other clinical site, including when the telehealth visit
occurs across State lines. A specific example of emergency management
guidance is that health care providers are trained to have emergency
contact information at the onset of video appointments for use in the
event of an emergency. We are not making any edits based on this
comment.
One commenter expressed multiple concerns with the proposed rule.
The commenter expressed concern that technology is necessary to utilize
telehealth and that some beneficiaries may not want to use the
technology while others may not be able to. The commenter felt that it
was not fair to give beneficiaries the opportunity to have more access
to health care by a means that they do not know how to use or do not
want to use. We reiterate that the health care provider and the
beneficiary will determine whether telehealth is appropriate in each
individual situation; VA will not require telehealth. While we
acknowledge the commenter's concern, VA believes that the health care
provider and the beneficiary are in the best position to make decisions
about the risks and benefits of any health care decision and will
ultimately decide the best option for the delivery of such care.
Moreover, allowing willing beneficiaries to participate in telehealth
should increase the availability of in-person visits for those
beneficiaries who prefer that option.
Second, the commenter questioned authority VA has to override the
State laws. The commenter said that in the absence of a specific
mandate by Congress, this rule is an arbitrary agency action. The
commenter explained that the Non-Delegation Doctrine prohibits Congress
from delegating legislative powers to Federal agencies and that the
Federal agency can only use those powers that Congress has chosen to
give them in an enabling act. The commenter cited Executive Order 13132
and quoted portions from Section 4(a) and 4(c). Specifically, the
commenter said, ``[t]here has to be a federal statute that: `contains
an express preemption provision or . . . some other clear evidence that
Congress intended preemption of State law'. It follows: `Any regulatory
preemption of State law shall be restricted to the minimal level
necessary . . .' ''
VA disagrees that we lack authority for this action. As explained
in the proposed rule, Section 4(b) of Executive Order 13132 allows
agencies to preempt State law so long as the exercise of State
authority conflicts with the exercise of Federal authority under the
Federal statute.
Here, the exercise of a State's authority directly conflicts with
the exercise of Federal authority under the Federal statue.
Specifically, a State rule limiting telehealth directly conflicts with
VA's authority under 38 U.S.C. 7401-7464 to establish the
qualifications for VA's health care providers and otherwise regulate
the professional activities of those individuals (i.e., allow its
health care providers to practice telehealth anywhere). As previously
mentioned in this rulemaking, Congress has required the Secretary ``to
carry out an initiative of teleconsultation for the provision of remote
mental health and traumatic brain injury assessments in facilities of
the Department'' and has otherwise required or authorized the use of
telehealth by VA. See, e.g., 38 U.S.C. 1709A(a)(1).
As to the commenter's citation to Section 4(c) of Executive Order
13132, which limits pre-emption to the minimum level needed to achieve
the objectives of the statutes, VA believes
[[Page 21903]]
that this final rule is restricted to the minimum level necessary to
support its telehealth program. In particular, VA explicitly limited
the scope of the rule to only allow its health care providers to
practice telehealth anywhere. VA did not expand the scope of the rule
to more generally allow its health care providers to practice beyond
what is required or authorized by Federal law and regulations or as
defined in the laws and practice acts of the health care provider's
State of licensure, registration or certification.
Finally, the commenter said that the Veterans E-Health and
Telemedicine Support (VETS) Act of 2017 was introduced into the United
States Senate in April 2017 and that it had not been approved by
Congress or signed by the President. The commenter did not request that
any changes be made to the regulation in light of the proposed
legislation, nor did the commenter say that the final rule should not
be published as a result of the proposed legislation. While legislative
action would resolve any ambiguity as to VA's authority in this matter,
the introduction of a piece of legislation is not evidence that VA does
not already have authority in this area. VA has adequate authority for
this rulemaking as described above and in the proposed rule. We make no
edits to the rule based on this comment.
Another commenter expressed concern that this rule was being
implemented without clear direction from Congress and with an
abbreviated comment period. As previously explained, an express mandate
from Congress is not necessary for VA to regulate on this topic. In
addition, although the period for public comment for this rule was 30
days instead of 60 days, VA determined that it was against public
interest and the health and safety of VA beneficiaries to have the 60
day comment period, for the reasons specified in the proposed rule.
Moreover, in compliance with Executive Order 13132 (Federalism), VA
officially started consulting with State officials on July 12, 2017,
well over 60 days prior to the publication of the rule. Therefore, the
stakeholders most invested in the rule had more than 3 months to
provide feedback to VA, and the majority of their comments supported
the rule.
The commenter also said that specific clarifications and additions
are necessary to the rule. The commenter listed five criteria: (1) The
standard of care must remain the same regardless of whether the
services are provided via telehealth or in person; (2) eye and vision
telehealth services cannot replace an in-person comprehensive eye
examination; (3) the use of eye and vision telehealth may be
appropriate for only certain uses that may be extended as new
technologies are made available; (4) the use of eye and vision
telehealth is not appropriate for establishing the doctor-patient
relationship, for initial diagnosis, as a replacement for recommended
face-to-face interactions, or as a replacement for partial or entire
categories of care; and (5) screening for specific or groups of eye
health issues using telehealth for direct-to-patient eye and vision-
related applications should not be used to diagnose eye health
conditions or as a replacement or replication for a comprehensive
dilated eye examination. VA appreciates the commenter's specific
suggestions for when telehealth is most appropriate for vision and eye
care; however, the commenter's request for clarification is beyond the
scope of this rulemaking. This rulemaking does not establish
requirements for when telehealth will be used nor does it establish
criteria that must be met for a beneficiary to seek health care via
telehealth. Instead, this rulemaking allows VA health care providers to
practice telehealth regardless of their location or the location of the
beneficiary. VA will make determinations on when the use of telehealth
(i.e., vision/eye care and the like) will be appropriate outside of
this rule. As such, the commenter's requested suggestions are beyond
the scope of the rulemaking.
Similarly, the commenter expressed concern regarding the standard
of care and how to best ensure patient safety when telehealth is used.
The commenter provided examples of how various jurisdictions addressed
this concern. The commenter also said that a ``one-size-fits-all
approach'' would be a step backwards and that at any point in the
diagnosis and care continuum the patient should have the right to
choose in-person care. The commenter recommended that VA ensure that
all beneficiaries are aware that they can choose between telehealth or
in-person care at any point. To ensure beneficiaries are apprised of
their rights, the commenter recommended that VA require beneficiaries
to sign an informed consent form. VA reiterates that this rulemaking is
narrowly tailored to clarify the authority of VA health care providers
to practice telehealth within the scope of their VA employment. The
rulemaking does not establish the criteria for beneficiaries to
participate in the telehealth program nor does it authorize a lower
standard of care for patients who choose to receive service via
telehealth. Accordingly, the commenter's suggestions are beyond the
scope of the rule.
The commenter also said that, in the absence of a true mandate by
Congress, it is critical that VA consider the most recent statutory
actions from Congress related to telehealth. The commenter then
suggested that VA incorporate additional language from the 21st Century
Cures Act (Pub. L. 114-255) into VA's definition of telehealth. The
commenter quoted the following language from the Act (section 4012(c),
130 Stat 1033, 1187-8).
(c) Sense of Congress.--It is the sense of Congress that--. . .
(2) any expansion of telehealth services under the Medicare program
under title XVIII of such Act should--(A) recognize that
telemedicine is the delivery of safe, effective, quality health care
services, by a health care provider, using technology as the mode of
care delivery; (B) meet or exceed the conditions of coverage and
payment with respect to the Medicare program if the service was
furnished in person, including standards of care, unless
specifically addressed in subsequent legislation; and (C) involve
clinically appropriate means to furnish such services.
VA has considered the language in the Act, but finds that it is beyond
the scope of this rulemaking. We make no edits to the rule based on
this comment.
We are making several minor revisions from the proposed rule. We
said in the proposed rule that we would revise the undesignated center
heading immediately after Sec. 17.412 to read Authority of Health Care
Providers to Practice in the Department. However, in order to maintain
consistency in terminology we are amending the undesignated center
heading by removing the term ``Department'' and adding in its place
``VA.'' We are not making any edits to the meaning of the language in
the proposed rule.
We said in the proposed rule that the title of new Sec. 17.417
would be ``Health care providers.'' However, because this rule
addresses health care providers practicing telehealth, we are revising
the title of Sec. 17.417 to now read ``Health care providers
practicing via telehealth.'' We are similarly revising the title of
paragraph (b) from ``Health care provider's practice'' to now read
``Health care provider's practice via telehealth.'' We are not making
any edits to the meaning of the language in the proposed rule.
We said in proposed paragraph (a)(2)(iii) that a health care
provider was an individual who ``Maintains credentials (e.g., a
license, registration, or certification) in accordance with the
requirements of his or her medical specialty as identified under 38
U.S.C. 7402(b).'' In order to maintain
[[Page 21904]]
consistency in terminology within this section, we are amending
paragraph (a)(2)(iii) by removing the term ``medical specialty'' and
adding in its place health care specialty. We are making a similar
amendment to paragraph (c) by removing the term ``medical and hospital
care'' and adding in its place ``health care and hospital services.''
We are not making any edits to the meaning of the language in the
proposed rule.
Proposed paragraph (b)(1) said, in part, ``telehealth services,
within their scope of practice and in accordance with privileges
granted to them by the Department . . .''. However, in order to
maintain consistency in terminology within this section, we are
amending paragraph (b)(1) by removing the term ``Department'' and
adding in its place ``VA.'' We are also adding the term ``functional
statement'' and replacing ``and'' with ``and/or'' when describing when
health care providers can provide telehealth services. Health care
providers practice in accordance with their functional statement or
scope of practice (for those not granted privileges) or privileges
granted to them by VA; as such, we consider these clarifying revisions.
We are not making any edits to the meaning of the language in the
proposed rule.
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 with the edits discussed in this final rule.
Executive Order 13132, Federalism
Section 4 of Executive Order 13132 (Federalism) requires an agency
that is publishing a regulation that preempts State law to follow
certain procedures. Section 4(b) requires agencies to ``construe any
authorization in the statute for the issuance of regulations as
authorizing preemption of State law by rulemaking only when the
exercise of State authority directly conflicts with the exercise of
Federal authority under the Federal statute or there is clear evidence
to conclude that the Congress intended the agency to have the authority
to preempt State law.'' Section 4(c) states ``Any regulatory preemption
of State law shall be restricted to the minimum level necessary to
achieve the objectives of the statute pursuant to which the regulations
are promulgated.'' Section 4(d) requires that when an agency ``foresees
the possibility of a conflict between State law and Federally protected
interests within its area of regulatory responsibility, the agency
shall consult, to the extent practicable, with appropriate State and
local officials in an effort to avoid such a conflict.'' Section 4(e)
requires that when an agency ``proposes to act through adjudication or
rulemaking to preempt State law, the agency shall provide all affected
State and local officials notice and an opportunity for appropriate
participation in the proceedings.'' Section 6(c) states that ``To the
extent practicable and permitted by law, no agency shall promulgate any
regulation that has federalism implications and that preempts State
law, unless the agency, prior to the formal promulgation of the
regulation, (1) consulted with State and local officials early in the
process of developing the proposed regulation; (2) in a separately
identified portion of the preamble to the regulation as it is to be
issued in the Federal Register, provides to the Director of the Office
of Management and Budget a federalism summary impact statement, which
consists of a description of the extent of the agency's prior
consultation with State and local officials, a summary of the nature of
their concerns and the agency's position supporting the need to issue
the regulation, and a statement of the extent to which the concerns of
State and local officials have been met; and (3) makes available to the
Director of the Office of Management and Budget any written
communications submitted to the agency by State and local officials.''
Because this final rule preempts certain State laws, VA consulted
with State officials in compliance with sections 4(d) and (e), as well
as section 6(c) of Executive Order 13132. VA sent a letter to the
National Governor's Association, Association of State and Provincial
Psychology, National Council of State Boards of Nursing, Federation of
State Medical Boards, Association of Social Work Boards, and National
Association of State Directors of Veterans Affairs on July 12, 2017, to
notify them of VA's intent to allow VA health care providers to
practice telehealth irrespective of the location of the health care
provider or beneficiary in any State and regardless of State telehealth
restrictions. In addition, the Director of the Federation of State
Medical Boards solicited comments and input from the nation's State
Medical Boards. The Wisconsin Medical Examining Board unanimously
passed a motion in support of the rule. The Rhode Island Board of
Medical Licensure & Discipline (BMLD) responded to our letter by saying
that BMLD considers physicians employed by VA to be exempt from license
requirements as long as such physician maintains a valid license in
another U.S. jurisdiction. BMLD also indicated that the exemption does
not necessarily extend to prescribing controlled substances without an
appropriate DEA registration. In response to that issue, we said in the
proposed rule that, if finalized, VA health care providers would be
subject to ``the limitations imposed by the Controlled Substances Act,
21 U.S.C. 801, et seq., on the authority to prescribe or administer
controlled substances, as well as any other limitations on the
provision of VA care set forth in applicable Federal law and policy.''
The State of Utah Department of Commerce also said that the Utah
Occupations and Professions Licensing Act exempts from licensure
requirements in Utah physicians, physician assistants, advanced
practice nurses, psychologists or other health care providers who
provide telehealth services as part of their VA employment as long as
such health care provider is licensed in any State. Utah supports VA's
efforts to enhance telehealth services to all veterans. The Florida
Board of Medicine said that Florida does not prohibit the practice of
telehealth except in certain circumstances and provided as an example
that an in-person examination is required each time a physician issues
a certification for medical marijuana. This final rule supersedes any
State requirement regarding the practice of telehealth, such as the in-
person examination requirement in Florida, and would maintain the
restrictions imposed by Federal law and policy regarding the
prescription of controlled substances. The North Carolina Medical Board
recognizes the shortage of psychiatric care in rural and medically
underserved communities and supports VA's initiative.
The President of the National Association of State Directors of
Veterans Affairs (NASDVA) sent an email to all of its State directors
informing the directors of the association's intent to fully support
VA's initiative. NASDVA also formally responded to our letter, and
supports VA's plans to amend its regulations and enhance access to
health care via telehealth services. The National Council of State
Boards of Nursing (NCSBN) supports VA's initiative for health care
providers to deliver services via telehealth, as long as such providers
maintain a valid State license. However, the NCSBN does not support
expanding VA State licensure exemptions to personal services
contractors who practice telehealth. We said in the proposed rulemaking
that VA contractors would not be permitted to practice telehealth
services beyond what
[[Page 21905]]
is authorized by their State license, certification, or registration,
and that has not changed in this final rule.
The Chief Executive Officer of the Association of State and
Provincial Psychology Boards formally responded to our letter and
indicated that this rule aligns with their current initiatives,
specifically, Psychology Interjurisdictional Compact (PSYPACT)
legislation, which has been adopted in three jurisdictions and is under
active consideration in many more States. The PSYPACT legislation
allows psychologists to provide telepsychology services across State
lines via a compact without obtaining additional licenses. The Chief
Executive Officer further said that these services will assist in
addressing the delivery of telehealth services to veterans.
The Veterans' Rural Health Advisory Committee (VRHAC) formally
submitted a letter in support of the proposed rule. The letter said
that although VA leads the way in being the largest provider of
telehealth in the country, there are barriers that affect many rural
and highly rural areas, which includes limited internet or cellular
access with sufficient bandwidth to support the required applications
and also State legislations that restrict the practice of telehealth
across State lines or into a veteran's home. The commenter supports the
proposed rule and further adds that expanding telehealth to rural and
highly rural veterans across State lines would strengthen the delivery
of care to enrolled veterans who live in rural and highly rural areas
and supports the critical need for access to mental health care.
The West Virginia Board of Osteopathic Medicine responded to VA's
letter and indicated that West Virginia has made legislative changes to
encourage physician participation in the VA system. The commenter said
that W.Va. Code 30-14-12c authorizes the West Virginia licensing boards
to issue a license to a physician licensed in another State via
reciprocity when the applicant presents proof that they are a VA
employee working in a VA medical facility that is located in a county
where a nursing home is operated by the West Virginia Department of
Veteran's Assistance. Also, W.Va. Code 30-14-12d states the
requirements for practicing telemedicine in West Virginia and defines
that the practice of medicine occurs where the patient is located and
defines what constitutes a physician-patient relationship. The
commenter said that the West Virginia Board of Osteopathic Medicine
rarely knows when a VA physician is practicing in West Virginia without
a West Virginia State license. However, the commenter cautioned that if
a VA physician is licensed in West Virginia and does not follow state
law and such action becomes known to the Board, the Board would file a
complaint and investigate such action. The commenter said that their
telehealth law was written to protect patients and indicated that
veterans deserved the same high quality care. As we stated in the
proposed rule, we are preempting State law as it applies to health care
providers who practice telehealth while acting within the scope of
their VA employment, and that has not changed in this final rule.
The Pennsylvania State Board of Medicine responded to VA's letter
and acknowledged the potential value for telehealth to expand access to
health care, especially in rural and underserved areas. The commenter
further stated that Pennsylvania law on the Interstate Medical
Licensure Compact affirms that the practice of medicine occurs where
the patient is located at the time of the health care encounter, which
requires the physician to be under the jurisdiction of the State
medical board where the patient is located. The commenter indicated
that VA has oversight of its health care providers, however, the
foundational principle that the physician should be licensed where the
patient is located helps to assure the safety, quality, and
accountability of the care provided. This rule preempts State law as it
applies to health care providers who practice telehealth while acting
within the scope of their VA employment.
The Michigan Department of Licensing and Regulatory Affairs
responded to VA's letter by stating that Michigan law does not require
a VA health care provider to hold a Michigan State license in the
discharge of official duties in a VA facility. The commenter also
stated that telehealth at a VA medical facility would be permitted.
However, if the health care provider is delivering care to the
beneficiary's home, such provider would need a Michigan State license.
As we indicated in the proposed rule, VA preempts State law as it
applies to health care providers who practice telehealth while acting
within the scope of their VA employment, and that has not changed in
this final rule.
The Virginia Board of Medicine responded to VA's letter by stating
that the Executive Committee of the Board met and supported the
enhancement of access to care for veterans. The commenter stated that
the proposed rule should benefit many beneficiaries that have little or
no access to health care.
The comments provided above were placed on Regulations.gov for
public inspection during the comment period. Stakeholders also had an
opportunity to provide comments during the notice and comment period.
This final rule complies with Executive Order 13132 by (1)
identifying where the exercise of State authority would directly
conflict with the rule; (2) limiting preemption to these areas of
conflict; (3) restricting preemption to the minimum level necessary to
achieve the objectives of the statutes pursuant to which the rule is
promulgated; (4) consulting with the external stakeholders listed in
this rule; and (5) providing opportunity for all affected State and
local officials to comment on this final rulemaking.
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this
final rule, represents VA's implementation of its legal authority on
this subject. Other than future amendments to this rule or governing
statutes, no contrary guidance or procedures are authorized. All
existing or subsequent VA guidance must be read to conform with this
rule if possible. If not possible, such guidance is superseded by this
rule.
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 who are VA
employees 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 5 U.S.C. 603
and 604.
Executive Orders 12866, 13563, and 13771
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)
[[Page 21906]]
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), 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.''
OMB has determined that this is a significant regulatory action
under Executive Order 12866 because of the policy implications. This
final rule is considered an E.O. 13771 deregulatory action. Details on
the estimated cost savings of this final rule can be found in the
rule's economic analysis. 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 website
at http://www.va.gov/orpm/, by following the link for ``VA Regulations
Published from FY 2004 Through Fiscal Year to Date.''
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires
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; 64.018, Sharing Specialized
Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug
Dependence; 64.022, Veterans Home Based Primary Care; 64.039, CHAMPVA;
64.040, VHA Inpatient Medicine; 64.041, VHA Outpatient Specialty Care;
64.042, VHA Inpatient Surgery; 64.043, VHA Mental Health Residential;
64.044, VHA Home Care; 64.045, VHA Outpatient Ancillary Services;
64.046, VHA Inpatient Psychiatry; 64.047, VHA Primary Care; 64.048, VHA
Mental Health Clinics; 64.049, VHA Community Living Center; and 64.050,
VHA Diagnostic Care.
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, Reporting and
recordkeeping requirements, Scholarships and fellowships, Travel and
transportation expenses, Veterans.
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. Gina S.
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs,
approved this document on February 6, 2018, for publication.
Dated: May 8, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble, we are amending 38 CFR
part 17 as follows:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended by adding an entry for
Sec. 17.417 in numerical order to read in part as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.417 also issued under 38 U.S.C. 1701 (note), 1709A,
1712A (note), 1722B, 7301, 7330A, 7401-7403, 7406 (note).
* * * * *
0
2. Revise the undesignated center heading immediately after Sec.
17.412 to read as follows:
Authority of Health Care Providers to Practice in VA
0
3. Add Sec. 17.417 to read as follows:
Sec. 17.417 Health care providers practicing via telehealth.
(a) Definitions. The following definitions apply to this section.
(1) Beneficiary. The term beneficiary means a veteran or any other
individual receiving health care under title 38 of the United States
Code.
(2) Health care provider. The term health care provider means an
individual who:
(i) Is licensed, registered, or certified in a State to practice a
health care specialty identified under 38 U.S.C. 7402(b);
(ii) Is appointed to an occupation in the Veterans Health
Administration that is listed in or authorized under 38 U.S.C. 7401(1)
or (3);
(iii) Maintains credentials (e.g., a license, registration, or
certification) in accordance with the requirements of his or her health
care specialty as identified under 38 U.S.C. 7402(b); and
(iv) Is not a VA-contracted health care provider.
(3) State. The term State means a State as defined in 38 U.S.C.
101(20), or a political subdivision of such a State.
(4) Telehealth. The term telehealth means the use of electronic
information or telecommunications technologies to support clinical
health care, patient and professional health-related education, public
health, and health administration.
(b) Health care provider's practice via telehealth. (1) Health care
providers may provide telehealth services, within their scope of
practice, functional statement, and/or in accordance with privileges
granted to them by VA, irrespective of the State or location within a
State where the health care provider or the beneficiary is physically
located. Health care providers' practice is subject to the limitations
imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on
the authority to prescribe or administer controlled substances, as well
as any other limitations on the provision of VA care set forth in
applicable Federal law and policy. This section only grants health care
providers the ability to practice telehealth within the scope of their
VA employment and does not otherwise
[[Page 21907]]
grant health care providers additional authorities that go beyond what
is required or authorized by Federal law and regulations or as defined
in the laws and practice acts of the health care providers' State
license, registration, or certification.
(2) Situations where a health care provider's VA practice of
telehealth may be inconsistent with a State law or State license,
registration, or certification requirements related to telehealth
include when:
(i) The beneficiary and the health care provider are physically
located in different States during the episode of care;
(ii) The beneficiary is receiving services in a State other than
the health care provider's State of licensure, registration, or
certification;
(iii) The health care provider is delivering services in a State
other than the health care provider's State of licensure, registration,
or certification;
(iv) The health care provider is delivering services either on or
outside VA property;
(v) The beneficiary is receiving services while she or he is
located either on or outside VA property;
(vi) The beneficiary has or has not previously been assessed, in
person, by the health care provider; or
(vii) Other State requirements would prevent or impede the practice
of health care providers delivering telehealth to VA beneficiaries.
(c) Preemption of State law. To achieve important Federal
interests, including, but not limited to, the ability to provide the
same complete health care and hospital service to beneficiaries in all
States under 38 U.S.C. 7301, this section preempts conflicting State
laws relating to the practice of health care providers when such health
care providers are practicing telehealth within the scope of their VA
employment. Any State law, rule, regulation or requirement pursuant to
such law, is without any force or effect on, and State governments have
no legal authority to enforce them in relation to, this section or
decisions made by VA under this section.
[FR Doc. 2018-10114 Filed 5-10-18; 8:45 am]
BILLING CODE 8320-01-P