[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38179-38181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15624]



38 CFR Part 17

RIN 2900-AO03

Autopsies at VA Expense

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulation that governs the performance of autopsies on veterans. This 
final rule updates outdated cross-references to a statute that 
previously authorized certain outpatient and ambulatory care, which 
included post-hospitalization autopsies, and its implementing 
regulation. This final rule clarifies that consent for an autopsy is 
implied if a known surviving spouse or next of kin has either not 
responded to a VA request for permission or has not inquired as to the 
decedent for 6 months before the decedent's death. This final rule 
modifies the current regulation to make the laws of the jurisdiction in 
which the autopsy will be performed the controlling laws for purposes 
of determining who has authority to grant permission for the autopsy. 
This final rule also clarifies the authorized purposes of a VA autopsy. 
Lastly, this final rule clarifies that the authority to order an 
autopsy includes transporting the body at VA's expense to the place 
where the autopsy will be performed.

DATES: This final rule is effective July 27, 2012.

FOR FURTHER INFORMATION CONTACT: Kristin J. Cunningham, Director, 
Business Policy, Chief Business Office, Department of Veterans Affairs, 
810 Vermont Ave. NW., Washington, DC 20420; (202) 461-1599. (This is 
not a toll-free number.)

SUPPLEMENTARY INFORMATION: Prior to this final rulemaking, 38 CFR 
17.170 stated that under certain specified circumstances, ``[t]he 
Director of a [VA] facility is authorized to cause an autopsy to be 
performed on a veteran who dies outside of a [VA] facility while 
undergoing post-hospital care under the provisions of 38 U.S.C. 1712 
and 38 CFR 17.93.'' These cross-references are outdated and incomplete. 

[[Page 38180]]

care is now governed by section 1710, not section 1712, and the 
implementing regulation is now at 38 CFR 17.38. In addition, VA is 
authorized, under Sec.  17.52, to contract with non-VA facilities to 
furnish hospital care and medical services to certain veterans in non-
VA facilities. This final rule updates the cross-references in Sec.  
17.170 to allow VA to order an autopsy of an individual who dies while 
receiving fee-basis care under Sec.  17.52 and to pay the expense of 
transporting the body for purposes of performing the autopsy.
    This final rule also amends Sec.  17.170 by reorganizing and 
clarifying the provisions governing whether an autopsy should be 
performed, including clarifying the applicability of local laws and the 
determination of the individual authorized to consent to autopsy. This 
clarifying language allows for ease of interpretation of the methods 
used to obtain consent for autopsy.
    In a document published in the Federal Register on December 2, 2011 
(76 FR 75509), VA proposed the above-described amendments to Sec.  
17.170. We provided a 60 day comment period, which ended on January 31, 
2012. We received one comment from a member of the general public.
    The commenter agreed with all of the proposals. Therefore, VA will 
make no changes based on this comment. The commenter stated that 
``[w]hen an autopsy is required for this purpose it is necessary to 
complete it in a timely fashion. Simplifying the language will help to 
achieve this goal by clarifying which laws to consult, addressing the 
requirements needed to achieve consent, and stating clearly the 
limitations on time.'' We thank the commenter for taking the time to 
review this rulemaking.
    Based on the rationale set forth in the preamble to the proposed 
rule and in this final rule, VA is adopting the proposed rule as a 
final rule without any substantive changes. We made a couple of 
nonsubstantive edits to proposed Sec.  17.170(a)(1).

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
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.

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.

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-

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), as ``any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

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 not cause a significant economic impact on 
health care providers, suppliers, or entities since only a small 
portion of the business of such entities concerns VA beneficiaries. 
Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this final rule are as follows: 64.005, Grants to States for 
Construction of State Home Facilities; 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.014, 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 

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on June 21, 2012, 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; Grant programs--veterans; Health care; Health 
facilities; Health professions; Health records; Homeless; Mental health 
programs; Nursing homes; Philippines; Reporting and recordkeeping 
requirements; Veterans.

[[Page 38181]]

    Dated: June 21, 2012.
Robert C. McFetridge,
Director, Office of 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:


1. The authority citation for part 17 continues to read as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.

2. Amend Sec.  17.170 by:
a. Revising paragraph (a).
b. Removing paragraph (b).
c. Redesignating paragraph (c) as new paragraph (b) and adding a 
paragraph heading.
d. Redesignating paragraph (d) as new paragraph (c) and adding a 
paragraph heading.
e. In newly redesignated paragraph (c), removing ``paragraph (c)'' each 
time it appears and adding, in its place, ``paragraph (b)''.
f. Redesignating paragraph (e) as new paragraph (d) and revising newly 
redesignated paragraph (d).
g. Redesignating paragraph (f) as new paragraph (e) and revising newly 
redesignated paragraph (e).
h. Adding an authority citation at the end of the section.
    The revisions and additions read as follows:

Sec.  17.170  Autopsies.

    (a) General. (1) Except as otherwise provided in this section, the 
Director of a VA facility may order an autopsy on a decedent who died 
while undergoing VA care authorized by Sec.  17.38 or Sec.  17.52, if 
the Director determines that an autopsy is required for VA purposes for 
the following reasons:
    (i) Completion of official records; or
    (ii) Advancement of medical knowledge.
    (2) VA may order an autopsy to be performed only if consent is 
first obtained under one of the following circumstances:
    (i) Consent is granted by the surviving spouse or next of kin of 
the decedent;
    (ii) Consent is implied where a known surviving spouse or next of 
kin does not respond within a specified period of time to VA's request 
for permission to conduct an autopsy;
    (iii) Consent is implied where a known surviving spouse or next of 
kin does not inquire after the well-being of the deceased veteran for a 
period of at least 6 months before the date of the veteran's death; or
    (iv) Consent is implied where there is no known surviving spouse or 
next of kin of the deceased veteran.
    (b) Death resulting from crime. * * *
    (c) Jurisdiction. * * *
    (d) Applicable law. (1) The laws of the state where the autopsy 
will be performed are to be used to identify the person who is 
authorized to grant VA permission to perform the autopsy and, if more 
than one person is identified, the order of precedence among such 
    (2) When the next of kin, as defined by the laws of the state where 
the autopsy will be performed, consists of a number of persons such as 
children, parents, brothers and sisters, etc., permission to perform an 
autopsy may be accepted when granted by the person in the appropriate 
class who assumes the right and duty of burial.
    (e) Death outside a VA facility. The Director of a VA facility may 
order an autopsy on a veteran who was undergoing VA care authorized by 
Sec. Sec.  17.38 or 17.52, and whose death did not occur in a VA 
facility. Such authority also includes transporting the body at VA's 
expense to the facility where the autopsy will be performed, and the 
return of the body. Consent for the autopsy will be obtained as stated 
in paragraph (d) of this section. The Director must determine that such 
autopsy is reasonably required for VA purposes for the following 
    (1) The completion of official records; or
    (2) Advancement of medical knowledge.

    Authority:  38 U.S.C. 501, 1703, 1710.

[FR Doc. 2012-15624 Filed 6-26-12; 8:45 am]