[Federal Register Volume 78, Number 136 (Tuesday, July 16, 2013)]
[Rules and Regulations]
[Pages 42455-42456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16978]



38 CFR Part 17

RIN 2900-AO77

Medications Prescribed by Non-VA Providers

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulation concerning filling prescriptions written by non-VA providers 
for veterans of a period of war who are receiving increased pension 
because they are permanently housebound or in need of aid and 
attendance. This rulemaking revises the regulation to reflect the 
current statutory periods of war to ensure that eligible veterans 
engaged in current and future conflicts receive medications prescribed 
by non-VA physicians when appropriate for their care.

DATES: Effective Date: This final rule is effective July 16, 2013.

FOR FURTHER INFORMATION CONTACT: Kristin Cunningham, Director, Business 
Policy, Chief Business Office (10NB), Veterans Health Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420; (202) 461-1599. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Under 38 U.S.C. 1712(d), VA is required to 
furnish prescription drugs and medicine ordered by a duly licensed 
physician to a veteran as a specific therapy in the treatment of any 
illness or injury suffered by a veteran who is receiving increased 
compensation under 38 U.S.C. chapter 11 or increased pension as a 
veteran of a period of war, by reason of being permanently housebound 
or in need of regular aid and attendance. VA implemented this authority 
in 38 CFR 17.96(a)(1), which authorizes VA pharmacies (or non-VA 
pharmacies in State homes under contract with VA for filling 
prescriptions for patients in State homes) to fill prescriptions 
ordered by duly licensed providers not employed by VA for the cohort of 
veterans described in the statute. In order to assist in identifying 
wartime veterans in receipt of increased pension, the language of Sec.  
17.96(a)(1) listed those periods of war recognized at the time of its 
publication, which were the Mexican Border Period, World War I, World 
War II, the Korean Conflict, or the Vietnam Era. In contrast, the 
statutory authority for this regulation, 38 U.S.C. 1712(d), refers only 
to ``a veteran of a period of war,'' without setting forth specific 
periods by name. Since this regulation was published, the United States 
has become engaged in additional conflicts. Because VA does not intend 
to deny these prescription services to veterans of later periods of war 
and has not done so, we are revising this regulation.
    ``Period of war'' is defined in 38 U.S.C. 101(11) to mean ``the 
Spanish-American War, the Mexican border period, World War I, World War 
II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the 
period beginning on the date of any future declaration of war by the 
Congress and ending on the date prescribed by Presidential proclamation 
or concurrent resolution of the Congress.'' In order to ensure that our 
regulation comports with the statutory mandate that VA fill 
prescriptions for all increased pension recipients who are veterans of 
a period of war, including current and future periods of war, we are 
revising Sec.  17.96(a)(1) to cross-reference the statute, rather than 
list each period of war. We are also revising the authority citation at 
the end of Sec.  17.96. We are not making any other changes to the text 
in Sec.  17.96.

Administrative Procedure Act

    The Secretary of Veterans Affairs (Secretary) finds good cause 
under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without 
prior opportunity for public comment. This amendment merely revises 
VA's regulation to comply with a statutory mandate that VA provide 
medications prescribed by non-VA providers to increased pension 
recipients who are veterans who served in wars after Vietnam under the 
same conditions as those who served in earlier periods of war. 
Therefore, a prior opportunity for notice and comment is unnecessary. 
Additionally, for the reason previously stated, the Secretary finds 
good cause to dispense with the delayed-effective-date requirement of 5 
U.S.C. 553(d).

[[Page 42456]]

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 on this subject 
are authorized. All 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-

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will directly affect only VA pharmacies and non-VA 
pharmacies in State homes under contract with VA for filling 
prescriptions for their patients. The State homes that are subject to 
this rulemaking are State government entities under the control of 
State governments. All State homes are owned, operated and managed by 
State governments except for a small number that are operated by 
entities under contract with State governments. These contractors are 
not small entities. Moreover, the impact of this rulemaking on these 
entities will be minimal because the rulemaking affects only certain 
wartime veterans in receipt of pension and merely authorizes VA to 
provide prescriptions for such veterans. 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 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) unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This final rule will have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this final rule are 64.007, Blind 
Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, 
Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 
64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 
64.013, Veterans Prosthetic Appliances; 64.014, Veterans State 
Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, 
Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation 
Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary 

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Jose D. 
Riojas, Interim Chief of Staff, approved this document on July 9, 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, Grant programs--veterans, Health care, Health 
facilities, Health professions, Health records, Homeless, Medical and 
dental schools, Medical devices, Medical research, Mental health 
programs, Nursing homes, Philippines, Veterans.

    Dated: July 11, 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, VA amends 38 CFR part 17 as 


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. Revise Sec.  17.96(a)(1) and the authority citation at the end of 
the section to read as follows:

Sec.  17.96  Medication prescribed by non-VA physicians.

* * * * *
    (a) * * *
    (1) A veteran who by reason of being permanently housebound or in 
need of regular aid and attendance is in receipt of increased 
compensation under 38 U.S.C. chapter 11, or increased pension under 
Sec.  3.1(u) (Section 306 Pension) or Sec.  3.1(w) (Improved Pension), 
of this chapter, as a veteran of a period of war as defined by 38 
U.S.C. 101(11) (or, although eligible for such pension, is in receipt 
of compensation as the greater benefit), or
* * * * *

(Authority 38 U.S.C. 101(11), 1706, 1710, 1712(d))

[FR Doc. 2013-16978 Filed 7-15-13; 8:45 am]