[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Rules and Regulations]
[Pages 72576-72579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28858]



38 CFR Part 17

RIN 2900-A021

Criteria for a Catastrophically Disabled Determination for 
Purposes of Enrollment

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulation concerning the manner in which VA determines that a veteran 
is catastrophically disabled for purposes of enrollment in priority 
group 4 for VA health care. As amended by this rulemaking, the 
regulation articulates the clinical criteria that identify an 
individual as catastrophically disabled, instead of using the 
corresponding International Classification of Diseases, Ninth Revision, 
Clinical Modification (ICD-9-CM) and Current Procedural Terminology 
(CPT[supreg]) codes. The revisions ensure that the regulation is not 
out of date when new versions of those codes are published. The 
revisions also broaden some of the descriptions for a finding of 
catastrophic disability. Additionally, the final rule does not rely

[[Page 72577]]

on the Folstein Mini Mental State Examination (MMSE) as a criterion for 
determining whether a veteran meets the definition of catastrophically 
disabled, because we have determined that the MMSE is no longer a 
necessary clinical assessment tool.

DATES: Effective Date: This rule is effective July 1, 2014.

FOR FURTHER INFORMATION CONTACT: Rajiv Jain, MD, Assistant Deputy Under 
Secretary for Health for Patient Care Services (10P4), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-7800. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1705, VA established 
eight enrollment categories (in order of priority) for veterans 
eligible to enroll in VA's health care system. Under 38 CFR 
17.36(b)(4), ``veterans who are determined to be catastrophically 
disabled'' are to be enrolled in enrollment priority group 4. For 
enrollment purposes, Sec.  17.36(e) defines ``catastrophically 
disabled'' and, prior to this final rulemaking, Sec.  17.36(e)(1) 
identified the covered conditions for catastrophically disabled in part 
by assignment of particular tabular diagnosis codes from Volume 1 of 
the ICD-9-CM, associated supplementary codes (V Codes), tabular 
procedure codes from Volume 3 of ICD-9-CM, and procedure codes from the 
CPT[supreg]. (CPT is a trademark of the American Medical Association. 
CPT codes and descriptions are copyrighted by the American Medical 
Association. All rights reserved.) This approach will soon be outdated; 
the ICD-9-CM and CPT[supreg] will no longer be used for disease and 
inpatient procedure coding after October 1, 2014, when they will be 
replaced by updated tabular diagnosis and supplementary codes from the 
International Classification of Diseases, Tenth Revision, Clinical 
Modification (ICD-10-CM) and by procedure codes from the International 
Classification of Diseases, Tenth Revision, Procedure Coding System 
(ICD-10-PCS). For this reason, and because these codes are subject to 
regular update and revision in the future, we published on February 22, 
2013 (78 FR 12264), a proposed rule to rely on the clinical and 
diagnostic information that formed the basis for the codes listed in 
the regulation, rather than relying on the codes by number. We also 
proposed to eliminate the MMSE as a criterion for determining whether a 
veteran meets the definition of catastrophically disabled. The use of 
the MMSE is redundant of the Katz scale, the Global Assessment of 
Functioning, and the Functional Independence Measure, which are 
referred to in the current regulation as tools to measure an 
individual's ability to carry out the Activities of Daily Living. We 
provided a 60-day comment period, which ended on April 23, 2013. We 
received 2 comments from members of the general public.
    One commenter was generally in support of the rulemaking. The 
commenter had one concern regarding the ``criteria by which an amputee 
may be able to attain Priority Group 4 benefits.'' Specifically, the 
commenter was concerned with amputation, detachment, or reamputation of 
the forearm at or through the radius and ulna. The commenter stated 
that this amendment narrows the definition of catastrophically disabled 
instead of the intended purpose of the proposed rulemaking, which was 
to broaden the criteria. The commenter further stated: ``Specificity of 
injury narrows the range of those that can claim benefits, but the 
differen[ce] between a veteran having a catastrophic injury because 
some part of his forearm has been amputated versus an amputation that 
occurred between the radius and ulna seems to impose an arbitrary 
restriction.'' Also, the commenter stated that ``[i]f a veteran's hand 
were crushed, for example, it is disabled in the same way an amputated 
hand would be. However, under these precise definitions, he would be 
denied coverage under Priority Group 4.''
    VA considers a veteran to be catastrophically disabled if the 
veteran has a condition resulting from two of the procedures listed in 
Sec.  17.36(e)(1)(i) through (e)(1)(xvi). The amputation, detachment, 
or reamputation of the veteran's forearm at or through the radius and 
the ulna does not by itself render a veteran catastrophically disabled. 
However, if a veteran's forearm was amputated, detached, or reamputated 
at any point, VA would consider this condition as one of the veteran's 
qualifying conditions for a determination of catastrophically disabled. 
VA does not limit this definition to one specific point in the forearm 
as the commenter suggests. The commenter also stated that if the 
veteran had a crushed hand this would be the same as amputation. 
Depending on the severity of the crushed hand a clinician would 
determine whether the injury would meet a criterion under paragraph 
(e)(1). Only a clinician may determine if a veteran is catastrophically 
disabled based on the veteran's disabilities. We are not making any 
changes based on this commenter's concerns.
    Another commenter was also partially in agreement with the proposed 
rule. The commenter was concerned, however, that by eliminating the 
need to update ICD codes VA would not have a mechanism in place to 
update the way VA determines that a veteran is catastrophically 
disabled. The elimination of the ICD-9-CM and CPT[supreg] codes does 
not mean that if the classification of conditions that render a veteran 
catastrophically disabled were to change in the future, VA would not 
amend its regulations to conform with this change. On the contrary, VA 
will continue to comply with the national and international standards 
of care and provide veterans with the most up-to-date health care.
    The commenter further stated that not relying on the numbered codes 
will cause physicians to use a greater level of discretion when 
determining who is considered to be catastrophically disabled. The 
commenter indicated that while there are terminological clarifications 
for blindness, such clarifications do not exist for persistent 
vegetative state, ``which seems like it would be equally open to a 
variety of understandings by different physicians across the country.'' 
Although the proposed rule did not provide ``terminological 
clarifications'' for persistent vegetative state, this condition has a 
medical definition. A vegetative state is present when the body 
preserves the ability to maintain blood pressure, respiration, and 
cardiac function, but not cognitive function. Kenneth Maiese, MD, 
``Vegetative State and Minimally Conscious State,'' http://www.merckmanuals.com/professional/neurologic_disorders/coma_and_impaired_consciousness/vegetative_state_and_minimally_conscious_state.html?qt=persistent%20vegitative%20state&alt=sh (last updated Nov. 
2012). A vegetative state is considered persistent if it lasts more 
than 1 month. Id. Persistent vegetative state is a term of art that is 
recognized in the medical community and requires no further clarifiers. 
Also, clinicians must always exercise clinical judgment in the context 
of a shared vocabulary, and, even when assigning a particular code, 
there will be discretion and occasional deviation within expected and 
accepted medical limits.
    The commenter was also concerned that the proposed rule stated that 
there were no costs or savings associated with the rulemaking. The 
commenter indicated that the number of veterans who would be considered 
catastrophically disabled would increase in the coming years as 
veterans return from the war in Iraq and Afghanistan. VA acknowledges 
that the number of catastrophically disabled

[[Page 72578]]

veterans may increase as veterans and servicemembers return from combat 
areas. By stating in the proposed rulemaking that there would be no 
costs or savings associated with the rulemaking, we meant that by 
amending Sec.  17.36(e) VA would not incur additional costs in the 
diagnosis of a catastrophic disability by eliminating the ICD-9-CM and 
CPT[supreg] codes. We are not making any changes based on any of this 
commenter's concerns.
    In order for the clinicians to properly codify a veteran as 
catastrophically disabled under the provisions of this rulemaking and 
for VA to properly codify a veteran in the correct enrollment category, 
VA must update its computer system. Because this computer update will 
not be in place until next year, we are delaying the applicability date 
of this rulemaking until July 1, 2014.
    We are making a technical edit to Sec.  17.36(e)(1)(vi) to remove 
an inadvertent duplication of the phrase ``of the''.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule and in this final rule, VA is adopting the 
proposed rule as a final rule with one editorial change.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB) unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www1.va.gov/orpm/ by following the link for ``VA 
Regulations Published.''

Unfunded Mandates

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

Catalog of Federal Domestic Assistance Numbers

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

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on October 31, 2013, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Day care, Dental health, Drug abuse, Health care, Health facilities, 
Health professions, Health records, Homeless, Medical and dental 
schools, Medical devices, Medical research, Mental health programs, 
Nursing homes, Veterans.

    Dated: November 27, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons set forth in the preamble, the Department of 
Veterans Affairs amends 38 CFR part 17 as follows:


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.  17.36 as follows:
a. Revise paragraph (e)(1).
b. Remove paragraph (e)(2)(ii).

[[Page 72579]]

c. Redesignate paragraphs (e)(2)(iii) and (iv) as new paragraphs 
(e)(2)(ii) and (iii), respectively.
    The revisions read as follows:

Sec.  17.36  Enrollment--provision of hospital and outpatient care to 

* * * * *
    (e) * * *
    (1) Quadriplegia and quadriparesis; paraplegia; legal blindness 
defined as visual impairment of 20/200 or less visual acuity in the 
better seeing eye with corrective lenses, or a visual field restriction 
of 20 degrees or less in the better seeing eye with corrective lenses; 
persistent vegetative state; or a condition resulting from two of the 
following procedures, provided the two procedures were not on the same 
    (i) Amputation, detachment, or reamputation of or through the hand;
    (ii) Disarticulation, detachment, or reamputation of or through the 
    (iii) Amputation, detachment, or reamputation of the forearm at or 
through the radius and ulna;
    (iv) Amputation, detachment, or disarticulation of the forearm at 
or through the elbow;
    (v) Amputation, detachment, or reamputation of the arm at or 
through the humerus;
    (vi) Disarticulation or detachment of the arm at or through the 
    (vii) Interthoracoscapular (forequarter) amputation or detachment;
    (viii) Amputation, detachment, or reamputation of the leg at or 
through the tibia and fibula;
    (ix) Amputation or detachment of or through the great toe;
    (x) Amputation or detachment of or through the foot;
    (xi) Disarticulation or detachment of the foot at or through the 
    (xii) Amputation or detachment of the foot at or through malleoli 
of the tibia and fibula;
    (xiii) Amputation or detachment of the lower leg at or through the 
    (xiv) Amputation, detachment, or reamputation of the leg at or 
through the femur;
    (xv) Disarticulation or detachment of the leg at or through the 
hip; and
    (xvi) Interpelviaabdominal (hindquarter) amputation or detachment.
* * * * *
[FR Doc. 2013-28858 Filed 12-2-13; 8:45 am]