[Federal Register Volume 78, Number 241 (Monday, December 16, 2013)]
[Rules and Regulations]
[Pages 76061-76063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29311]



38 CFR Part 17

RIN 2900-AO46

Authorization for Non-VA Medical Services

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: This Department of Veterans Affairs (VA) rulemaking amends 
VA's regulations regarding payment by VA for medical services under 
VA's statutory authority for non-VA medical care. In the Federal 
Register on November 28, 2012, VA proposed to remove an outdated 
regulatory limitation on veterans' eligibility to be referred for non-
VA medical care. On the same date, VA also published a companion direct 
final rule that would have made the same amendments effective on 
January 28, 2013, if no significant adverse comments were received. 
Because VA received adverse comments on the direct final rule, VA is 
withdrawing it in a companion document in this issue of the Federal 
Register. This rulemaking includes VA's responses to comments on the 
proposed and direct final rules.

DATES: Effective Date: This rule is effective January 15, 2014.

FOR FURTHER INFORMATION CONTACT: Lisa Brown, Chief, Policy Management 
Department, Department of Veterans Affairs, Chief Business Office, 
Purchased Care, 3773 Cherry Creek North Drive, Suite 450, Denver, CO 
80209 at (303) 331-7829. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: On November 28, 2012, VA proposed a rule in 
the Federal Register, at 77 FR 70967, to amend its regulations 
authorizing non-VA medical care. Under our non-VA medical care 
authority in 38 U.S.C. 1703, VA may provide certain hospital care 
(inpatient care) and medical services (outpatient care) for eligible 
veterans when VA facilities are not capable of providing economical 
services due to geographical inaccessibility or are not capable of 
providing the services needed. VA proposed to revise its existing 
regulation, at 38 CFR 17.52(a)(2)(ii), to

[[Page 76062]]

remove a limitation that barred VA from authorizing non-VA medical 
services for certain veterans who had not previously been furnished VA 
hospital care. Without this revision, these veterans were eligible for 
non-VA medical services under Sec.  17.52(a)(2)(ii) to complete 
treatment of a nonservice-connected disability only if they had 
received VA hospital care for that disability.
    On the same date, VA published a companion direct final rule at 77 
FR 70893 that would have made the same amendments as those in the 
proposed rule effective on January 28, 2013, if no adverse public 
comments were received. The direct final rule and proposed rule each 
provided a 30-day comment period that ended on December 28, 2012. VA 
received comments on the proposed rule and direct final rule, including 
some adverse comments. VA is, therefore, withdrawing the direct final 
rule in a companion document in this issue of the Federal Register. VA 
addresses comments received on both the direct final and proposed rules 
in this action.
    This final rule adopts the proposed rule without changes.
    We received several comments urging VA to expand eligibility for 
non-VA medical care to allow all veterans the option of using the 
program for any needed treatment. VA lacks statutory authority to make 
this change. VA may provide non-VA medical care under 38 U.S.C. 1703 
only in limited circumstances: When VA cannot provide economical 
hospital care or medical services because of geographic 
inaccessibility, or when VA facilities are not capable of providing the 
hospital care or medical services that a veteran needs. See 38 U.S.C. 
1703(a). Further, if those conditions are met, VA has authority to 
provide non-VA medical care to a veteran only if the veteran meets the 
eligibility requirements set forth in section 1703. Thus, VA cannot 
make the changes these commenters request because to do so would be 
contrary to VA's statutory authority under 38 U.S.C. 1703.
    One commenter who recommended that VA allow veterans to choose to 
receive care from private providers also stated that ``VA hospitals 
should be for emergency care and for those who are having operations 
and need weeks or months to recover, such as multi-trauma cases,'' 
suggesting that all other care should be referred to non-VA providers. 
We emphasize that the VA health care system does provide emergency 
medical services and hospital care to eligible veterans, including 
surgical services and acute inpatient polytrauma rehabilitation, as 
recommended by the commenter. By statute, the VA health care system 
must also provide ``a complete medical and hospital service for the 
medical care and treatment of veterans'' (38 U.S.C. 7301(b)) and 
therefore cannot reduce the availability of VA care in the manner 
suggested by the commenter. VA makes no changes based on this comment.
    One commenter expressed support for this regulation and stated that 
veterans receiving non-VA emergency treatment would not need to be 
transferred from a non-VA hospital to a VA hospital to complete 
treatment. This comment does not accurately characterize the effect of 
this rulemaking. To clarify, this action only applies to the provision 
of non-VA medical services after the veteran has received VA care and 
the non-VA medical services are needed to complete the VA care.
    One commenter stated that VA should not ``duplicat[e] medical 
services readily available by well qualified providers'' and that 
``[m]any veterans are forced by current VA practices to utilize local 
medical services, even though the services are in theory available from 
the VA at other than a `local' VA facility.'' This comment can be 
interpreted in two ways. One interpretation is that some veterans are 
forced to pay for their own care from community providers in order to 
avoid traveling when their local VA facilities refer them to VA 
facilities located in other geographic areas. Another interpretation is 
that VA refers veterans to community providers when care would be 
better provided at a VA facility. Neither interpretation is within the 
scope of this rulemaking. VA therefore does not make any changes to 
this rulemaking based on these comments.
    The same commenter recommended that veterans' ``expenses in 
utilizing [Medicare] should be offset by VA reimbursement.'' We note 
that the VA health care system and Medicare are separate programs run 
under distinct statutory authorities. VA has no authority to reimburse 
Medicare beneficiaries for expenses they incur to obtain medical care 
under Medicare in the manner suggested by the commenter (see 42 U.S.C. 
1395y(a)(3)). VA does not make any changes based on this comment.
    One commenter asked whether this rulemaking would result in 
additional administrative burdens for veterans to obtain referrals or 
for providers to obtain payments for non-VA medical care. This 
rulemaking only removes a limitation; it does not create any new 
burdens or procedures. VA's regulations and policies pertaining to how 
veterans obtain referrals and how VA processes payments for non-VA 
medical care will remain the same. There will be no additional 
administrative burden on veterans or non-VA providers as a result of 
this rulemaking.
    The majority of the comments that VA received on this rulemaking 
requested that VA allow hearing-aid specialists to perform diagnostic 
hearing evaluations for veterans. We received over one hundred comments 
on this issue. Some of the commenters requested to become recognized VA 
providers. VA allows only audiologists to perform such evaluations. We 
are not aware of any State that licenses hearing-aid specialists to 
perform such evaluations. VA will consider these comments internally as 
appropriate, but the request is outside the scope of this rulemaking, 
so we make no changes based on these comments.
    VA received a comment expressing support for the proposed rule, but 
expressing concern about a draft request for proposals issued by VA for 
the procurement of non-VA medical care surgical services. This 
rulemaking affects only eligibility for non-VA medical services, and 
not VA's means of procuring such services. This comment, therefore, is 
outside of the scope of the regulation, and we make no changes based on 
it. VA will consider this comment in its evaluation of the draft 
request for proposals as appropriate.
    VA received a comment expressing support for the proposed rule, but 
asking VA to remove ``a burdensome regulatory requirement that 
prescriptions for veterans must be written by a VA-affiliated provider 
for the veteran to obtain the prescription at the VA's discounted 
price. Instead, the VA should recognize the validity of a community-
based physician's prescription.'' We do not make changes based on this 
comment because the issue is outside the scope of this regulation. VA 
will consider the recommendation internally as appropriate.
    VA received one comment expressing support for the proposed rule 
and requesting that physicians certified by osteopathic boards of 
medicine be included in all VA activities concerning veterans' 
healthcare. This comment is outside the scope of this regulation, but 
no change is required for VA to fulfill the request because VA 
considers doctors of osteopathic medicine as physicians, and does not 
distinguish between physicians based on their types of degrees.
    VA received one comment stating ``[v]ote no.'' Since the commenter 

[[Page 76063]]

not state a reason for disagreeing with this rulemaking, VA does not 
make any changes based on this comment.
    In addition to the comments described above, VA received several 
comments expressing general support for the proposed rulemaking.
    Based on the rationale set forth in the proposed rule and in this 
document, VA is adopting the provisions of the proposed rule as a final 
rule with no changes.

Effect of Rulemaking

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Executive Orders 12866 and 13563

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

Unfunded Mandates

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans 
Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, 
Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical 
Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 
64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless 
Providers Grant and Per Diem Program.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on November 6, 2013 for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Government contracts, 
Grant programs--health, Government programs--veterans, Health care, 
Health facilities, Health professions, Health records, Homeless, Mental 
health programs, Nursing homes, Reporting and recordkeeping 
requirements, Veterans.

    Dated: December 4, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 17 as follows:


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.  17.52(a)(2)(ii) to read as follows:

Sec.  17.52  Hospital care and medical services in non-VA facilities.

    (a) * * *
    (2) * * *
    (ii) A veteran who has been furnished hospital care, nursing home 
care, domiciliary care, or medical services, and requires medical 
services to complete treatment incident to such care or services (each 
authorization for non-VA treatment needed to complete treatment may 
continue for up to 12 months, and new authorizations may be issued by 
VA as needed), and
* * * * *
[FR Doc. 2013-29311 Filed 12-13-13; 8:45 am]