[Federal Register Volume 66, Number 134 (Thursday, July 12, 2001)]
[Rules and Regulations]
[Pages 36467-36472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17102]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AK08


Payment or Reimbursement for Emergency Treatment Furnished at 
Non-VA Facilities

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: This document amends VA's medical regulations by establishing 
provisions for payment or reimbursement for certain non-VA emergency 
services furnished to veterans for nonservice-connected conditions. 
This is necessary to implement provisions of ``The Veterans Millennium 
Health Care and Benefits Act.''

DATES: Effective Date: This interim final rule is effective on May 29, 
2000; except for 38 CFR 17.1004 which is effective July 19, 2001.
    Comments Dates: Comments on the rule, including comments on the 
information collection provisions, must be received on or before 
September 10, 2001; except that comments on the request for emergency 
approval of the collection of information provisions must be received 
on or before July 19, 2001.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AK08.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except 
holidays). In addition, see the Paperwork Reduction Act heading under 
the SUPPLEMENTARY INFORMATION section of this preamble regarding 
submission of comments on the information collection provisions.

FOR FURTHER INFORMATION CONTACT: Roscoe Butler, Chief, Policy & 
Operations, Health Administration Service (10C3), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, 
Washington, DC 20420, (202) 273-8302. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This document amends VA's medical 
regulations at 38 CFR part 17. The amendments implement provisions of 
section 111 of Public Law 106-117, The Veterans Millennium Health Care 
and Benefits Act. These statutory provisions, which are set forth at 38 
U.S.C. 1725, authorize VA to establish provisions regarding payment of 
or reimbursement for the reasonable value of non-VA emergency services 
provided for nonservice-connected conditions of certain veterans who 
have no medical insurance and no other recourse for payment.

Conditions for Reimbursement or Payment for Emergency Services

    Sections 17.1002 and 17.1003 set forth substantive conditions that 
must be met for payment or reimbursement for emergency services under 
38 U.S.C. 1725. In general, these conditions consist of restatements 
and interpretations of 38 U.S.C. 1725.
    For emergency services other than emergency transportation, we will 
make payment or reimbursement only for emergency services provided in a 
hospital emergency department or a similar facility held out as 
providing emergency care to the public. These are the places that have 
the capabilities for providing emergency care.

48-Hour Notice

    For informational purposes, we have added a note explaining that 
health care providers furnishing emergency treatment who believe they 
may have a basis for filing a claim with VA for payment under 38 U.S.C. 
1725 should contact VA within 48 hours after the veteran begins 
receiving emergency treatment. Such contact is not a condition of VA 
payment. However, the contact will assist the provider in understanding 
the conditions for payment. The contact may also assist the provider in 
planning for transfer of the veteran after stabilization.

Claims

    Section 17.1004 sets forth procedures for filing claims. To 
initiate a claim for emergency treatment a claimant would be required 
to submit to the VA medical facility of jurisdiction (defined as the 
nearest VA medical facility to where the emergency service was 
provided) a completed standard billing form (such as a UB92 or a HCFA 
1500). The completed form must also be accompanied by a signed, written 
statement by the individual or entity claiming the benefit declaring 
that ``I hereby certify that this claim meets all of the conditions for 
payment by VA for emergency medical services under 38 CFR 17.1002 and 
17.1003. I am aware that 38 U.S.C. 6102(b) provides that one

[[Page 36468]]

who obtains payment without being entitled to it and with intent to 
defraud the United States shall be fined in accordance with title 18, 
United States Code, or imprisoned not more than one year, or both.''
    We believe that this (along with the right to obtain additional 
information under 17.1004(e)) will be sufficient to make determinations 
regarding whether the claimant meets the requirements for reimbursement 
or payment. Claims for payment or reimbursement for ambulance services, 
including air ambulance services, will not be required to be on a 
specific form but will be required to include the bill and contain 
information to establish entitlement to payment or reimbursement for 
such services.
    Consistent with statutory authority in 38 U.S.C. 1725, a claimant 
must be the entity that furnished the treatment, the veteran who paid 
for the treatment, or the person or organization that paid for such 
treatment on behalf of the veteran.
    The rule establishes time limits for filing claims and establishes 
procedures and time limits for the submission of additional information 
needed by VA to make determinations regarding the claim. This is 
designed to help ensure that claims are decided in reasonable periods 
of time.
    Also, we note that a claim that is submitted to a VA entity other 
than the VA medical facility of jurisdiction will be forwarded by the 
receiving VA entity to the VA medical facility of jurisdiction.

Payment Limitations

    The provisions of 38 U.S.C. 1725 state that VA may not pay more 
than the amount for which the veteran is personally liable. Within this 
framework, the rule establishes reimbursement or payment rates as the 
lesser of the amount for which the veteran is personally liable or 70 
percent of the amount prescribed under Medicare fee schedules.
    Under 38 U.S.C. 1725, VA is authorized for the first time to 
establish for non-VA providers of emergency treatment a mechanism for 
obtaining payment for care furnished to veterans who have no health 
care insurance or other source of payment in whole or in part. Prior to 
the enactment of this new law, these providers frequently were forced 
to absorb the costs of this care and pass those costs on to all other 
paying users of their facilities. With respect to the Congressional 
intent in authorizing VA to pay or reimburse for emergency treatment, 
House Report No. 106-237, at pages 39-40, states:

    It is the Committee's view that in setting such payment 
regulations VA should avoid a policy which gives providers of 
emergency care a windfall. In that connection, the Committee takes 
notice of the frequency with which providers of emergency care 
``write off'' such debts in cases where the debt is deemed 
uncollectible or the costs of collection exceed the likely recovery. 
VA serves a population which is substantially elderly, indigent, and 
chronically ill. Given that this bill covers a subset of this 
population which has no private or public medical insurance or 
coverage, it stands to reason that in most instances under current 
law providers would write off the debts arising from the provision 
of emergency care to these veterans. The Committee thus envisions 
that VA would establish regulations that are significantly below 
those paid under the Medicare or Medicaid system (or under 38 United 
States Code, section 1728). Such lower rates should also provide a 
significant incentive to the providers of care to actively try and 
obtain reimbursement from those other benefit programs before 
seeking reimbursement from VA. As a further incentive to the 
providers of care, the bill also provides that they must accept VA's 
payment as payment in full.

    In accordance with the declared intent of Congress, we will pay or 
reimburse at a rate discounted from the amounts Medicare pays. Bearing 
in mind the words in the House report suggesting that VA establish 
rates ``significantly below'' Medicare or Medicaid rates, VA has 
established the rate at 70 percent.
    Consistent with the provisions of 38 U.S.C. 1725, the rule also 
states that payment or reimbursement for medical treatment may be made 
only for the period from the beginning of the treatment until such time 
as the veteran has ``stabilized'' and could be transferred safely to a 
VA facility or other Federal facility.
    The rule restates statutory provisions that a provider who accepts 
VA payment for emergency treatment agrees thereby to extinguish all 
liability on the part of the veteran for that treatment.

Delegations of Authority

    Decisions under this rule regarding benefit determinations will be 
made by Chief of the Health Administration Service or an equivalent 
official at the VA medical facility of jurisdiction, except that the 
Fee Service Review Physician or equivalent officer at the VA medical 
facility of jurisdiction would make determinations regarding 
Sec. 17.1002(b), (c), and (d). We believe that these are the 
appropriate individuals to make the determinations assigned. Further, 
under the rule any decision denying a benefit must be in writing and 
inform the claimant of VA reconsideration rights and rights of appeal 
to the Board of Veterans' Appeals.

Independent Right of Recovery

    The rule also restates statutory provisions that give the 
Government an independent right of recovery when any payment is made 
for the same emergency treatment for which VA had already reimbursed or 
made payment (this includes statutory liens). The statutory provisions 
require the veteran or claimant to notify VA and submit documentation 
regarding the duplicate payment. The rule states that the notification 
and submission of documentation must be provided by the veteran or 
claimant to the VA medical facility of jurisdiction within three 
working days of receipt of notice of the duplicate payment. This will 
help VA take timely action to recover the amount owed the Government.
    Consistent with statutory authority, the rule states that the Chief 
Financial Officer or equivalent official at the VA medical facility of 
jurisdiction may waive recovery of a VA payment made to a veteran upon 
determining that actions to recover the payment would not be cost-
effective or would conflict with other litigative interests of the 
United States.

Retroactive Payments

    Because May 29, 2000, is the effective date of 38 U.S.C. 1725, we 
would make retroactive payments or reimbursements, as appropriate, for 
qualifying emergency care furnished on or after that date.

Paperwork Reduction Act

    The provisions of 38 CFR 17.1004 contain collections of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). 
Accordingly, under section 3507(d) of the Act, VA has submitted a copy 
of this rulemaking action to OMB for its review of the collections of 
information. We have requested OMB to approve the collection of 
information on an emergency basis by July 19, 2001. If OMB does not 
approve the collections of information as requested, we will 
immediately remove Sec. 17.1004 or take such other action as is 
directed by OMB.
    The provisions of 38 CFR 17.1007 and 17.1008 contain collections of 
information concerning prompt notification of duplicate payments and 
rejection of VA payments. We expect that fewer than 10 collections of 
information will occur under any of these provisions in any given year. 
If VA expects to receive 10 or more collections under any of these 
provisions in any year, we will seek approval under the

[[Page 36469]]

Paperwork Reduction Act for such collections of information.
    We are also seeking an approval of the information collection on a 
non-emergency basis. Accordingly, we are requesting comments on the 
collection of information provisions contained in Sec. 17.1004. 
Comments must be submitted by September 10, 2001.
    OMB assigns a control number for each collection of information it 
approves. Except for emergency approvals under 44 U.S.C. 3507(j), VA 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.
    Comments on the collections of information in Sec. 17.1004 should 
be submitted to the Office of Management and Budget, Attention: Desk 
Officer for the Department of Veterans Affairs, Office of Information 
and Regulatory Affairs, Washington, DC 20503, with copies mailed or 
hand-delivered to: Director, Office of Regulations Management (02D), 
Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1154, 
Washington, DC 20420. Comments should indicate that they are submitted 
in response to ``RIN 2900-AK08.''
    Title: Application for Reimbursement/Payment for Emergency 
Treatment in Non-VA Facilities.
    Summary of collection of information: Under the provisions of 38 
CFR 17.1004, to obtain payment or reimbursement for emergency treatment 
under 38 U.S.C. 1725, a claimant must submit to the VA medical facility 
of jurisdiction a completed standard billing form (such as a UB92 or a 
HCFA 1500). The completed form must also be accompanied by a signed, 
written statement declaring that ``I hereby certify that this claim 
meets all of the conditions for payment by VA for emergency medical 
services under 38 CFR 17.1002 and 17.1003. I am aware that 38 U.S.C. 
6102(b) provides that one who obtains payment without being entitled to 
it and with intent to defraud the United States shall be fined in 
accordance with title 18, United States Code, or imprisoned not more 
than one year, or both.''
    In addition, Sec. 17.1004 provides that aclaim for payment or 
reimbursement for emergency transportation does not have to be on a 
form. The claimant need only submit a signed and dated request for such 
payment or reimbursement to the VA medical facility of jurisdiction, 
together with a bill showing the services provided and charges for 
which the veteran is personally liable and a signed statement 
explaining who requested such transportation services and why they were 
necessary.
    Description of the need for information and proposed use of 
information: This information would be needed for VA to decide claims 
for reimbursement or payment from a veteran, a hospital or other entity 
that furnished non-VA emergency treatment or transportation to the 
veteran, or a person or organization that paid for such treatment or 
transportation on behalf of the veteran. VA would use the information 
and certifications submitted to process claims for such reimbursement 
or payment.
    Description of likely respondents: Hospital or other entities that 
furnished the treatment or transportation, the veteran who paid for the 
treatment or transportation, or the person or organization that paid 
for such treatment or transportation on behalf of the veteran.
    Estimated number of respondents: 241,457.
    Estimated frequency of responses: 1.
    Estimated total annual reporting and recordkeeping burden: 120,729 
hours.
    Estimated annual burden per collection: 30 minutes.
    The Department considers comments by the public on collections of 
information in--
     Evaluating whether the collections of information are 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the collections of information, including the validity of 
the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including responses through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.

Administrative Procedure Act and Congressional Review Act

    We have found good cause to dispense with the notice-and-comment 
and delayed effective date provisions of the Administrative Procedure 
Act (5 U.S.C. 553) and the notice and public procedure provisions of 
the Congressional Review Act (5 U.S.C. 801-808) because compliance with 
such provisions would be contrary to the public interest. Under the 
provisions of section 111 of Public Law 106-117, VA was mandated to 
establish regulations to provide a mechanism for payment or 
reimbursement for certain non-VA emergency services furnished to 
veterans for non-service connected conditions. These regulations were 
to be effective by May 29, 2000. We are aware that because implementing 
regulations have not become effective, in a number of instances bills 
for veterans' emergency care that would be covered by this rule have 
been turned over to collection agencies. This has unnecessarily placed 
veterans' possessions in jeopardy. Even though we are making 
Sec. 17.1004 effective immediately, we are soliciting comments for 60 
days after publication of the document. We will publish a final 
document after the comment period ends and we may modify this rule in 
response to comments.

Compliance With the Congressional Review Act and Executive Order 
12866--Cost-Benefit Analysis

    This rule is necessary to implement the provisions of section 111 
of Public Law 106-117, The Veterans Millennium Health Care and Benefits 
Act. These provisions, which are set forth at 38 U.S.C. 1725, authorize 
VA to establish a mechanism for payment of or reimbursement for the 
reasonable value of non-VA emergency services provided for nonservice-
connected conditions of certain veterans who have no medical insurance 
and no other recourse for payment. This rule would directly impact 
these veterans positively by avoiding full recourse or payment 
responsibility for medical care and resulting potential debt collection 
repercussions. This rule implements a detailed statutory mandate, and 
we found no potentially effective and reasonably feasible alternatives.
    We estimate that the five-year cost of this rule from appropriated 
funds would be $2.1 billion in benefits costs and $21 million in 
government operating expenses. Since it is likely that the adoption of 
the rule may have an annual effect on the economy of $100 million or 
more, the Office of Management and Budget has designated this rule as a 
major rule under the Congressional Review Act, 5 U.S.C. 802, and a 
significant regulatory action under Executive Order 12866, Regulatory 
Planning and Review. The following information is provided pursuant to 
the Congressional Review Act and Executive Order 12866.

I. Benefits Costs

    The estimated cost for implementation of the emergency care

[[Page 36470]]

provisions of the Millennium Act are based on enrollment projections 
developed by a private actuarial firm and contained in the FY 2001 
Enrollment Level Decision Analysis. This baseline population was 
adjusted, using a survey of enrollees and existing enrollment 
databases, to calculate the projected number of veterans who had no 
private or public insurance and who had used VA care within the 
previous 24 months. These adjustments reflect the criteria contained in 
the Millennium Act.
    Private sector ER-related health care utilization was adjusted to 
reflect veteran enrollee demographics and relative morbidity, as well 
as uninsured enrollee reliance on the VA health care system. These 
utilization estimates, along with Medicare allowable charge levels, 
were applied to the estimated 990,000 veteran enrollees affected by the 
emergency care provisions. This resulted in projected estimates for 
emergency room visits ($93,480,145), ambulance use ($34,108,803), and 
ER-related inpatient care ($468,221,072). The total of $595,810,019 was 
then multiplied by the 70 percent reimbursement rate VA will use to pay 
emergency care providers. This comes to $417,067,014.
    This total, however, reflects full implementation of the emergency 
care provisions. VA believes that it will take time before both 
providers and eligible veterans are aware of these new benefits and 
begin to submit acceptable bills to VA for reimbursement. Current 
experience shows that without widespread dissemination of information, 
there is limited use of these benefits. VA believes that with the 
publication of final regulations the submission of claims will increase 
significantly and could reach 50 percent of the full implementation 
costs in the first full year after the rule is in effect. Only 
experience will demonstrate the real demand for this new benefit.

II. Administrative Costs

    The administrative workload caused by this rule is expected to be 
241,457 claims filed in 2001. Administrative workloads assume that not 
all claims would be granted; it is probable that non-VA related claims 
will be received from veterans who are not eligible. Medical Care costs 
are computed on the average cost of a GS4/5 @ $12/hour  x  30 minutes 
x  241,457 claims/60 which equals $1,448,742.00. In addition, the 
clinical review costs are estimated at $46/hour  x  15 minutes  x  
241,457 claims/60 which equals $2,776,755.00 for total Medical Care 
costs of $4,225,497.

OMB Review

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this rule would 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 rule would apply only to an extremely small amount of the 
business of a hospital or health care provider. Otherwise, the rule 
would only apply to individuals. Accordingly, pursuant to 5 U.S.C. 
605(b), this rule is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act requires (in section 202) that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule would have no 
consequential effect on State, local, or tribal governments.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers for the programs 
affected by this rule are 64.005, 64.007.64.008, 64,009, 64.010, 
64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, 
and 64.025.

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, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

    Approved: April 9, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set out in the preamble, 38 CFR part 17 is amended 
as set forth below:

PART 17--MEDICAL

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

    Authority: 38 U.S.C. 501, 1721, unless otherwise noted.

    2. An undesignated center heading and Secs. 17.1000 through 17.1008 
are added to read as follows:

Payment or Reimbursement for Emergency Services for Nonservice-
Connected Conditions in Non-VA Facilities

Sec.
17.1000  Payment or reimbursement for emergency services for 
nonservice-connected conditions in non-VA facilities.
17.1001  Definitions.
17.1002  Substantive conditions for payment or reimbursement.
17.1003  Emergency transportation.
17.1004  Filing claims.
17.1005  Payment limitations.
17.1006  Decisionmakers.
17.1007  Independent right of recovery.
17.1008  Balance billing prohibited.

Payment or Reimbursement for Emergency Services for Nonservice-
Connected Conditions in Non-VA Facilities


Sec. 17.1000  Payment or reimbursement for emergency services for 
nonservice-connected conditions in non-VA facilities.

    Sections 17.1000 through 17.1008 constitute the requirements under 
38 U.S.C. 1725 that govern VA payment or reimbursement for non-VA 
emergency services furnished to a veteran for nonservice-connected 
conditions.

(Authority: 38 U.S.C. 1725)

    Note to Sec. 17.1000: Health care providers furnishing emergency 
treatment who believe they may have a basis for filing a claim with 
VA for payment under 38 U.S.C. 1725 should contact VA within 48-
hours after the veteran begins receiving emergency treatment. Such 
contact is not a condition of VA payment. However, the contact will 
assist the provider in understanding the conditions for payment. The 
contact may also assist the provider in planning for transfer of the 
veteran after stabilization.


Sec. 17.1001  Definitions.

    For purposes of Secs. 17.1000 through 17.1008:
    (a) The term health-plan contract means any of the following:
    (1) An insurance policy or contract, medical or hospital service 
agreement, membership or subscription contract, or similar arrangement 
under which health services for individuals are provided or the 
expenses of such services are paid;
    (2) An insurance program described in section 1811 of the Social 
Security Act (42 U.S.C. 1395c) or established by section 1831 of that 
Act (42 U.S.C. 1395j);
    (3) A State plan for medical assistance approved under title XIX of 
the Social Security Act (42 U.S.C. 1396 et seq.);

[[Page 36471]]

    (4) A workers' compensation law or plan described in section 38 
U.S.C. 1729(a)(2)(A); or
    (5) A law of a State or political subdivision described in 38 
U.S.C. 1729(a)(2)(B) (concerning motor vehicle accidents).
    (b) The term third party means any of the following:
    (1) A Federal entity;
    (2) A State or political subdivision of a State;
    (3) An employer or an employer's insurance carrier;
    (4) An automobile accident reparations insurance carrier; or
    (5) A person or entity obligated to provide, or to pay the expenses 
of, health services under a health-plan contract.
    (c) The term duplicate payment means payment made, in whole or in 
part, for the same emergency services for which VA reimbursed or made 
payment.
    (d) The term stabilized means that no material deterioration of the 
emergency medical condition is likely, within reasonable medical 
probability, to occur if the veteran is discharged or transferred to a 
VA or other Federal facility.
    (e) The term VA medical facility of jurisdiction means the nearest 
VA medical facility to where the emergency service was provided.

(Authority: 38 U.S.C. 1725)


Sec. 17.1002  Substantive conditions for payment or reimbursement.

    Payment or reimbursement under 38 U.S.C. 1725 for emergency 
services may be made only if all of the following conditions are met:
    (a) The emergency services were provided in a hospital emergency 
department or a similar facility held out as providing emergency care 
to the public;
    (b) The claim for payment or reimbursement for the initial 
evaluation and treatment is for a condition of such a nature that a 
prudent layperson would have reasonably expected that delay in seeking 
immediate medical attention would have been hazardous to life or health 
(this standard would be met if there were an emergency medical 
condition manifesting itself by acute symptoms of sufficient severity 
(including severe pain) that a prudent layperson who possesses an 
average knowledge of health and medicine could reasonably expect the 
absence of immediate medical attention to result in placing the health 
of the individual in serious jeopardy, serious impairment to bodily 
functions, or serious dysfunction of any bodily organ or part);
    (c) A VA or other Federal facility/provider was not feasibly 
available and an attempt to use them beforehand would not have been 
considered reasonable by a prudent layperson (as an example, these 
conditions would be met by evidence establishing that a veteran was 
brought to a hospital in an ambulance and the ambulance personnel 
determined that the nearest available appropriate level of care was at 
a non-VA medical center);
    (d) The claim for payment or reimbursement for any medical care 
beyond the initial emergency evaluation and treatment is for a 
continued medical emergency of such a nature that the veteran could not 
have been safely transferred to a VA or other Federal facility (the 
medical emergency lasts only until the time the veteran becomes 
stabilized);
    (e) At the time the emergency treatment was furnished, the veteran 
was enrolled in the VA health care system and had received medical 
services under authority of 38 U.S.C. chapter 17 within the 24-month 
period preceding the furnishing of such emergency treatment;
    (f) The veteran is financially liable to the provider of emergency 
treatment for that treatment;
    (g) The veteran has no coverage under a health-plan contract for 
payment or reimbursement, in whole or in part, for the emergency 
treatment (this condition cannot be met if the veteran has coverage 
under a health-plan contract but payment is barred because of a failure 
by the veteran or the provider to comply with the provisions of that 
health-plan contract, e.g., failure to submit a bill or medical records 
within specified time limits, or failure to exhaust appeals of the 
denial of payment);
    (h) If the condition for which the emergency treatment was 
furnished was caused by an accident or work-related injury, the 
claimant has exhausted without success all claims and remedies 
reasonably available to the veteran or provider against a third party 
for payment of such treatment; and the veteran has no contractual or 
legal recourse against a third party that could reasonably be pursued 
for the purpose of extinguishing, in whole or in part, the veteran's 
liability to the provider; and
    (i) The veteran is not eligible for reimbursement under 38 U.S.C. 
1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA 
payment or reimbursement for emergency treatment to a limited group of 
veterans, primarily those who receive emergency treatment for a 
service-connected disability).

(Authority: 38 U.S.C. 1725)

Sec. 17.1003  Emergency transportation.

    Notwithstanding the provisions of Sec. 17.1002, payment or 
reimbursement under 38 U.S.C. 1725 for ambulance services, including 
air ambulance services, may be made for transporting a veteran to a 
facility only if the following conditions are met:
    (a) Payment or reimbursement is authorized under 38 U.S.C. 1725 for 
emergency treatment provided at such facility (or payment or 
reimbursement could have been authorized under 38 U.S.C. 1725 for 
emergency treatment if death had not occurred before emergency 
treatment could be provided);
    (b) The veteran is financially liable to the provider of the 
emergency transportation;
    (c) The veteran has no coverage under a health-plan contract for 
reimbursement or payment, in whole or in part, for the emergency 
transportation or any emergency treatment authorized under 38 U.S.C. 
1728 (this condition is not met if the veteran has coverage under a 
health-plan contract but payment is barred because of a failure by the 
veteran or the provider to comply with the provisions of that health-
plan contract); and
    (d) If the condition for which the emergency transportation was 
furnished was caused by an accident or work-related injury, the 
claimant has exhausted without success all claims and remedies 
reasonably available to the veteran or provider against a third party 
for payment of such transportation; and the veteran has no contractual 
or legal recourse against a third party that could reasonably be 
pursued for the purpose of extinguishing, in whole or in part, the 
veteran's liability to the provider.

(Authority: 38 U.S.C. 1725)

Sec. 17.1004  Filing claims.

    (a) A claimant for payment or reimbursement under 38 U.S.C. 1725 
must be the entity that furnished the treatment, the veteran who paid 
for the treatment, or the person or organization that paid for such 
treatment on behalf of the veteran.
    (b) To obtain payment or reimbursement for emergency treatment 
under 38 U.S.C. 1725, a claimant must submit to the VA medical facility 
of jurisdiction a completed standard billing form (such as a UB92 or a 
HCFA 1500). The completed form must also be accompanied by a signed, 
written statement declaring that ``I hereby certify that this claim 
meets all of the conditions for payment by VA for emergency medical 
services under 38 CFR 17.1002 and 17.1003. I am aware

[[Page 36472]]

that 38 U.S.C. 6102(b) provides that one who obtains payment without 
being entitled to it and with intent to defraud the United States shall 
be fined in accordance with title 18, United States Code, or imprisoned 
not more than one year, or both.''

    Note to Sec. 17.1004(b): These regulations regarding payment or 
reimbursement for emergency services for nonservice-connected 
conditions in non-VA facilities also can be found on the internet at 
http://www.va.gov/health/elig.

    (c) Notwithstanding the provisions of paragraph (b) of this 
section, no specific form is required for a claimant (or duly 
authorized representative) to claim payment or reimbursement for 
emergency transportation charges under 38 U.S.C. 1725. The claimant 
need only submit a signed and dated request for such payment or 
reimbursement to the VA medical facility of jurisdiction, together with 
a bill showing the services provided and charges for which the veteran 
is personally liable and a signed statement explaining who requested 
such transportation services and why they were necessary.
    (d) To receive payment or reimbursement for emergency services, a 
claimant must file a claim within 90 days after the latest of the 
following:
    (1) July 19, 2001.
    (2) The date that the veteran was discharged from the facility that 
furnished the emergency treatment;
    (3) The date of death, but only if the death occurred during 
transportation to a facility for emergency treatment or if the death 
occurred during the stay in the facility that included the provision of 
the emergency treatment; or
    (4) The date the veteran finally exhausted, without success, action 
to obtain payment or reimbursement for the treatment from a third 
party.
    (e) If after reviewing a claim the decisionmaker determines that 
additional information is needed to make a determination regarding the 
claim, such official will contact the claimant in writing and request 
additional information. The additional information must be submitted to 
the decisionmaker within 30 days of receipt of the request or the claim 
will be treated as abandoned, except that if the claimant within the 
30-day period requests in writing additional time, the time period for 
submission of the information may be extended as reasonably necessary 
for the requested information to be obtained.

(Authority: 38 U.S.C. 1725)

Sec. 17.1005  Payment limitations.

    (a) Payment or reimbursement for emergency treatment under 38 
U.S.C. 1725 shall be the lesser of the amount for which the veteran is 
personally liable or 70 percent of the amount under the applicable 
Medicare fee schedule for such treatment.
    (b) Reimbursement or payment for emergency treatment may be made 
only for the period from the beginning of the treatment until such time 
as the veteran could be transferred safely to a VA facility or other 
Federal facility. For purposes of payment or reimbursement under 38 
U.S.C. 1725, VA deems it safe for the veteran to be transferred once 
the veteran has become stabilized.

(Authority: 38 U.S.C. 1725)

Sec. 17.1006  Decisionmakers.

    The Chief of the Health Administration Service or an equivalent 
official at the VA medical facility of jurisdiction will make all 
determinations regarding payment or reimbursement under 38 U.S.C. 1725, 
except that the Fee Service Review Physician or equivalent officer at 
the VA medical facility of jurisdiction will make determinations 
regarding Sec. 17.1002(b), (c), and (d). Any decision denying a benefit 
must be in writing and inform the claimant of VA reconsideration and 
appeal rights.

(Authority: 38 U.S.C. 1725)

Sec. 17.1007  Independent right of recovery.

    (a) VA has the right to recover its payment under this section 
when, and to the extent that, a third party makes payment for all or 
part of the same emergency treatment for which VA reimbursed or made 
payment under this section.
    (1) Under 38 U.S.C. 1725(d)(4), the veteran (or the veteran's 
personal representative, successor, dependents, or survivors) or 
claimant shall ensure that the Secretary is promptly notified of any 
payment received from any third party for emergency treatment furnished 
to the veteran. The veteran (or the veteran's personal representative, 
successor, dependents, or survivors) or claimant shall immediately 
forward all documents relating to such payment, cooperate with the 
Secretary in the investigation of such payment and assist the Secretary 
in enforcing the United States' right to recover any payment made and 
accepted under this section. The required notification and submission 
of documentation must be provided by the veteran or claimant to the VA 
medical facility of jurisdiction within three working days of receipt 
of notice of the duplicate payment.
    (2) If the Chief Financial Officer or equivalent official at the VA 
medical facility of jurisdiction concludes that payment from a third 
party was made for all or part of the same emergency treatment for 
which VA reimbursed or made payment under this section, such VA 
official shall, except as provided in paragraph (c) of this section, 
initiate action to collect or recover the amount of the duplicate 
payment in the same manner as for any other debt owed the United 
States.
    (b)(1) Any amount paid by the United States to the veteran (or the 
veteran's personal representative, successor, dependents, or survivors) 
or to any other person or organization paying for such treatment shall 
constitute a lien in favor of the United States against any recovery 
the payee subsequently receives from a third party for the same 
treatment.
    (2) Any amount paid by the United States, and accepted by the 
provider that furnished the veteran's emergency treatment, shall 
constitute a lien against any subsequent amount the provider receives 
from a third party for the same emergency treatment for which the 
United States made payment.
    (c) If it is determined that a duplicate payment was made, the 
Chief Financial Officer or equivalent official at the VA medical 
facility of jurisdiction may waive recovery of a VA payment made under 
this section to a veteran upon determining that the veteran has 
substantially complied with the provisions of paragraph (a)(1) of this 
section and that actions to recover the payment would not be cost-
effective or would conflict with other litigative interests of the 
United States.

(Authority: 38 U.S.C. 1725)


Sec. 17.1008  Balance billing prohibited.

    Payment by VA under 38 U.S.C. 1725 on behalf of a veteran to a 
provider of emergency treatment shall, unless rejected and refunded by 
the provider within 30 days of receipt, extinguish all liability on the 
part of the veteran for that emergency treatment. Neither the absence 
of a contract or agreement between VA and the provider nor any 
provision of a contract, agreement, or assignment to the contrary shall 
operate to modify, limit, or negate this requirement.

(Authority: 38 U.S.C. 1725)

[FR Doc. 01-17102 Filed 7-11-01; 8:45 am]
BILLING CODE 8320-01-P