[Federal Register Volume 66, Number 193 (Thursday, October 4, 2001)]
[Proposed Rules]
[Pages 50594-50601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24762]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AK32


Medical Benefits Package; Copayments for Extended Care Services

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: We propose to amend VA's medical regulations by adding the 
following extended care services to the medical benefits package: 
noninstitutional adult day health care, noninstitutional geriatric 
evaluation, and noninstitutional respite care. Also, we propose to 
amend VA's medical regulations to establish provisions regarding 
copayments for extended care services. These actions would implement 
provisions of the Veterans Millennium Health Care and Benefits Act.

DATES: Comments must be received on or before December 3, 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-AK32.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Marsha Goodwin, Geriatrics and 
Extended Care (114), at (202) 273-8540 for issues regarding the medical 
benefits package, and Nancy Howard, Revenue Office (174), at (202) 273-
8198 for issues regarding copayments for extended care services. Both 
are officials in the Veterans Health Administration, 810 Vermont Avenue 
NW., Washington, DC 20420.

SUPPLEMENTARY INFORMATION:

Medical Benefits Package

    We propose to amend VA's medical regulations at 38 CFR 17.38 
concerning VA's medical benefits package which sets forth what care is 
provided to veterans enrolled in the VA healthcare system. More 
specifically, we propose to add the following extended care services to 
the medical benefits package: noninstitutional adult day health care, 
noninstitutional geriatric evaluation, and noninstitutional respite 
care. This implements amendments to 38 U.S.C. 1701(10) and 1710B(a)(5) 
added by the Veterans Millennium Health Care and Benefits Act (section 
101(b) and (c) of Public Law 106-117).
    The medical benefits package already specifically includes respite 
care that is provided as hospital or outpatient care. To avoid 
confusion, we note that with the adoption of the proposed changes, the 
medical benefits package would include both institutional (hospital and 
outpatient) and noninstitutional respite care.

Copayments for Extended Care Services

    The Veterans Millennium Health Care and Benefits Act (Pub. L. 106-
117) also established provisions regarding copayments for extended care 
services provided to veterans by VA. These provisions are set forth at 
38 U.S.C. 1710B. This document proposes to establish requirements at 38 
CFR 17.111 regarding copayments for such extended care services 
provided either directly by VA or obtained by contract.
    The proposed rule states that, with certain exceptions, as a 
condition of receiving extended care services, a veteran must agree to 
pay VA a copayment. This restates statutory provisions at 38 U.S.C. 
1710B.
    The proposed rule sets forth a mechanism for calculating the 
copayment amount. This is intended to implement the following statutory 
criteria set forth at 38 U.S.C. 1710B(d)(2) that states:

    The Secretary shall develop a methodology for establishing the 
amount of the copayment for which a veteran [receiving extended care 
services] is liable. That methodology shall provide for:
    (A) Establishing a maximum monthly copayment (based on all 
income and assets of the veteran and the spouse of such veteran);
    (B) Protecting the spouse of a veteran from financial hardship 
by not counting all of the income and assets of the veteran and 
spouse (in the case of a spouse who resides in the community) as 
available for determining the copayment obligation; and
    (C) Allowing the veteran to retain a monthly personal allowance.

    The proposed rule states that a veteran has no copayment obligation 
for the first 21 days of extended care services in any 12-month period 
from the date extended care services began. It further states that for 
each day that extended care services are provided beyond the first 21 
days, unless an exemption applies, a veteran is obligated to pay VA a 
copayment amount for each day that extended care services are provided 
to the extent the veteran has available resources. This reflects 
statutory provisions at 38 U.S.C. 1710B.
    The proposed rule provides that the following extended care 
services are subject to the corresponding copayment amount per day:

(i) Adult day health care--$15.
(ii) Domiciliary care--$5.
(iii) Institutional respite care--$97.
(iv) Institutional geriatric evaluation--$97.
(v) Non-institutional geriatric evaluation--$15.
(vi) Non-institutional respite care--$15.
(vii) Nursing home care--$97.

    The proposed copayment amount for institutional extended care is 
comparable to the copayment amount for nursing home services under the 
Medicare program and copayments at State homes that provide similar 
services. The proposed copayment amount for outpatient care is 
comparable to industry standards.
    The proposed copayment amount for domiciliary care is lower, in 
part, because of the lower level of care provided. Further, although 
Public Law 106-117 included domiciliary care in the extended care 
service package, the eligibility criteria for this level of medical 
care did not change. To be eligible for domiciliary care, veterans must 
have a very low income, usually an amount that does not exceed the 
maximum annual rate of VA pension that would be applicable to the 
veteran if the veteran were eligible for VA pension based on the need 
for regular aid and attendance. Accordingly, we believe it is 
appropriate for the copayment amount to be low.
    Under the proposal, a veteran would be obligated to pay the 
copayment only to the extent the veteran and the veteran's spouse have 
available resources. Available resources would mean the sum of the 
value of the liquid assets, fixed assets, and income of the veteran and 
the veteran's spouse minus the sum of the veteran allowance and

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the spousal allowance. Liquid assets and fixed assets are included in 
the calculations only if the veteran has been receiving extended care 
services for 181 days or more. Expenses are included in the veterans 
allowance calculations only if the veteran has been receiving extended 
care services for 180 days or less, the veteran is receiving only adult 
day health care or other noninstitutional care, or the veteran has a 
spouse or dependents residing in the community (not institutionalized). 
This formula is designed to allow the veteran and the veteran's spouse 
and dependents to have minimum amenities while allowing the retention 
of some of their possessions to help them maintain, to a degree, a 
similar standard of living as they had in the past. Also, this formula 
is intended to help ensure that veterans institutionalized for 180 days 
or less would have the means to return home.
    The proposed rule states that, for purposes of counting the number 
of days for which a veteran is obligated to make a copayment, VA would 
count each day that outpatient services are provided and would count 
each full day and partial day for each inpatient stay except for the 
day of discharge. This formula is not only administratively feasible, 
but it appears to be a fair and reasonable method for counting days for 
charging copayments.
    The proposed rule sets forth definitions of adult day health care, 
domiciliary care, extended care services, geriatric evaluation, 
institutional, noninstitutional, nursing home care, and respite care. 
These definitions reflect the common meaning of their terms in the 
context of extended care services.
    The proposed rule provides that, unless exempted, a veteran must 
submit to a VA medical facility a completed VA Form 10-10EC and 
documentation requested by the form at the following times:
    (i) At the time of initial request for an episode of extended care 
services.
    (ii) At the time of request for extended care services after having 
a break in provision of extended care services for more than 30 days.
    (iii) Each year at the time of submission to VA of VA Form 10-10EZ.
    The proposed rule also states that when there are changes to the 
veteran's or spouse's situation that would change the copayment 
obligation (i.e., changes regarding fixed assets, liquid assets, 
expenses, income, or whether the veteran has a spouse or dependents 
residing in the community), the veteran must report those changes to a 
VA medical facility within 10 days of the change. Further, the proposed 
rule sets forth in full VA Form 10-10EC. These provisions appear to be 
adequate to allow VA to make the determinations required to be made 
under the proposed rule.
    The proposed rule sets forth the following categories of veterans 
and care that would not be subject to the copayment requirements:
    (1) A veteran with a compensable service-connected disability,
    (2) A veteran whose annual income (determined under 38 U.S.C. 1503) 
is less than the amount in effect under 38 U.S.C. 1521(b),
    (3) Care for a veteran's noncompensable zero percent service-
connected disability,
    (4) An episode of extended care services that began on or before 
November 30, 1999,
    (5) Care authorized under 38 U.S.C. 1710(e) for Vietnam-era 
herbicide-exposed veterans, radiation-exposed veterans, Persian Gulf 
War veterans, or post-Persian Gulf War combat-exposed veterans,
    (6) Care for treatment of sexual trauma as authorized under 38 
U.S.C. 1720D, or
    (7) Care or services authorized under 38 U.S.C. 1720E for certain 
veterans regarding cancer of the head or neck.
    The first four categories are specifically excluded from the 
copayment provisions by statute (38 U.S.C. 1710B). Also, VA can charge 
a copayment for extended care services only for care provided to 
nonservice-connected veterans (38 U.S.C. 1710B). Categories (5) through 
(7) reflect circumstances in which the extended cares services would be 
for other than a ``nonservice-connected disability.''
    This regulation will use a means test income threshold equal to the 
amount of basic pension VA provides to a single veteran eligible for 
pension benefits. The threshold differs from other means-test income 
thresholds established by other statutory provisions that VA uses to 
determine whether a veteran must pay copayments for inpatient and 
outpatient care and for medications because this threshold is 
specifically established by law at 38 U.S.C. 1710B(c)(2)(A) as added by 
the Millennium Act. Additionally, the copayment amounts established 
under this rule differ from other copayment amounts that VA must charge 
for inpatient and outpatient care and for medications. The copayment 
amounts are different due to the statutory requirements set forth at 38 
U.S.C. 1710B(d)(2).

Paperwork Reduction Act

    Proposed 38 CFR 17.111(f) contains 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.
    OMB assigns a control number for each collection of information it 
approves. 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 proposed collections of information 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-AK32.''
    Title: Application for extended care services.
    Summary of collection of information: In proposed Sec. 17.111(f), 
VA requests information from veterans so that VA can determine the 
financial circumstances of veterans receiving extended care services.
    Description of the need for information and proposed use of 
information: The information is necessary to determine the amount of 
copayment owed to VA by veterans receiving extended care services.
    Description of likely respondents: Estimated number of respondents: 
8,600.
    Estimated frequency of responses: 1.
    Estimated total annual reporting and record keeping burden: 12,900 
hours.
    Estimated annual burden per collection: 90 minutes.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed 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 proposed 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

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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.
    OMB is required to make a decision concerning the collections of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule.

Unfunded Mandates

    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.

OMB Review

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866. VA has not yet completed a cost 
estimate for this rule but expects it to be significantly less than 
$100 million per year. VA will present a cost estimate in the final 
rule.

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-612. This amendment would not directly affect any small 
entities. Only individuals could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this amendment 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 numbers for the programs 
affected by this document 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 record-keeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

    Approved: May 1, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 17 is proposed 
to be 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.


Sec. 17.36  [Amended]

    2. Section 17.36 is amended by:
    A. In paragraph (a)(1), removing ``VA hospital and outpatient 
care'' and adding, in its place, ``the ``medical benefits package'' set 
forth in Sec. 17.38''.
    B. In paragraphs (a)(2) and (a)(3), removing ``hospital and 
outpatient''.
    C. In paragraph (b)(3), removing ``hospital and outpatient'' and 
adding, in its place, ``that''.


Sec. 17.37  [Amended]

    3. Section 17.37 is amended by:
    A. In paragraphs (a), (b), (c), (e), (g), (h), and (i), removing 
``hospital and outpatient''.
    B. In paragraph (f), removing ``VA hospital and outpatient care'' 
and adding, in its place, ``care provided for in the ``medical benefits 
package' ''.
    4. Section 17.38 is amended by:
    A. Revising paragraph (a) introductory text.
    B. Revising paragraph (a)(1)(xi).
    C. Revising the authority citation at the end of the section.
    The revisions read as follows:


Sec. 17.38  Medical benefits package.

    (a) Subject to paragraphs (b) and (c) of this section, the 
following hospital, outpatient, and extended care services constitute 
the ``medical benefits package'' (basic care and preventive care):
    (1) * * *
    (xi)(A) Hospice care, palliative care, and institutional respite 
care; and
    (B) Noninstitutional geriatric evaluation, noninstitutional adult 
day health care, and noninstitutional respite care.
* * * * *
(Authority: 38 U.S.C. 101, 501, 1701, 1705, 1710, 1710A, 1721, 1722)


Secs. 17.112 through 17.115 including undesignated center 
heading  [Redesignated as Secs. 17.113 through 17.116]

    5.-6. Sections 17.112 through 17.115 including the undesignated 
center heading ``REIMBURSEMENT FOR LOSS BY NATURAL DISASTER OF PERSONAL 
EFFECTS OF HOSPITALIZED OR NURSING HOME PATIENTS'' are redesignated as 
Secs. 17.113 through 17.116, respectively.

Sec. 17.111  [Redesigned as Sec. 17.112]

    7. Section 17.111 is redesignated as Sec. 17.112
    8. A new Sec. 17.111 is added preceding the undesignated center 
heading ``CEREMONIES'' to read as follows:


Sec. 17.111  Copayments for Extended care services.

    (a) General. This section sets forth requirements regarding 
copayments for extended care services provided to veterans by VA 
(either directly by VA or paid for by VA).
    (b) Copayments. (1) Unless exempted under paragraph (f) of this 
section, as a condition of receiving extended care services from VA, a 
veteran must agree to pay VA and is obligated to pay VA a copayment as 
specified by this section. A veteran has no obligation to pay a 
copayment for the first 21 days of extended care services that VA 
provided the veteran in any 12-month period (the 12-month period begins 
on the date that VA first provided extended care services to the 
veteran). However, for each day that extended care services are 
provided beyond the first 21 days, a veteran is obligated to pay VA the 
copayment amount set forth below to the extent the veteran has 
available resources as determined under paragraph (d) of this section. 
The following sets forth the extended care services provided by VA and 
the corresponding copayment amount per day:

(i) Adult day health care--$15.
(ii) Domiciliary care--$5.
(iii) Institutional respite care--$97.
(iv) Institutional geriatric evaluation--$97.
(v) Non-institutional geriatric evaluation--$15.
(vi) Non-institutional respite care--$15.
(vii) Nursing home care--$97.

    (2) For purposes of counting the number of days for which a veteran 
is obligated to make a copayment under this section, VA will count each 
day that outpatient services are provided

[[Page 50597]]

and will count each full day and partial day for each inpatient stay 
except for the day of discharge.
    (c) Definitions. For purposes of this section:
    (1) Adult day health care is a therapeutic outpatient care program 
that provides medical services, rehabilitation, therapeutic activities, 
socialization, nutrition and transportation services to disabled 
veterans in a congregate setting.
    (2) Domiciliary care is defined in Sec. 17.30(b).
    (3) Extended care services means adult day health care, domiciliary 
care, institutional geriatric evaluation, noninstitutional geriatric 
evaluation, nursing home care, institutional respite care, and 
noninstitutional respite care.
    (4) Geriatric evaluation is a specialized, diagnostic/consultative 
service provided by an interdisciplinary team that is for the purpose 
of providing a comprehensive assessment, care plan, and extended care 
service recommendations.
    (5) Institutional means a setting in a hospital, domiciliary, or 
nursing home of overnight stays of one or more days.
    (6) Noninstitutional means a service that does not include an 
overnight stay.
    (7) Nursing home care means the accommodation of convalescents or 
other persons who are not acutely ill and not in need of hospital care, 
but who require nursing care and related medical services, if such 
nursing care and medical services are prescribed by, or are performed 
under the general direction of, persons duly licensed to provide such 
care (nursing services must be provided 24 hours a day). Such term 
includes services furnished in skilled nursing care facilities. Such 
term excludes hospice care.
    (8) Respite care means care which is of limited duration, is 
furnished on an intermittent basis to a veteran who is suffering from a 
chronic illness and who resides primarily at home, and is furnished for 
the purpose of helping the veteran to continue residing primarily at 
home. (Respite providers temporarily replace the caregivers to provide 
services ranging from supervision to skilled care needs.)
    (d) Effect of the veteran's financial resources on obligation to 
pay copayment. (1) A veteran is obligated to pay the copayment to the 
extent the veteran and the veteran's spouse have available resources. 
For purposes of this section, available resources means the sum of the 
value of the liquid assets, the fixed assets, and the income of the 
veteran and the veteran's spouse, minus the sum of the veteran 
allowance, and the spousal allowance. Liquid assets and fixed assets 
are included in the calculations only if the veteran has been receiving 
extended care services for 181 days or more. Expenses are included in 
the veterans allowance calculations only if the veteran has been 
receiving extended care services for 180 days or less, the veteran is 
receiving only adult day health care or other noninstitutional care, or 
the veteran has a spouse or dependents residing in the community (not 
institutionalized).
    (2) For purposes of determining available resources under this 
section:
    (i) Income means current income, e.g., gross income (including, but 
not limited to, wages and income from a business, bonuses, tips, 
severance pay, accrued benefits, cash gifts, inheritance amounts, 
interest income, standard dividend income from non tax deferred 
annuities, retirement income, pension income, unemployment payments, 
worker's compensation payments, black lung payments, tort settlement 
payments, social security payments, court mandated payments, payments 
from VA or any other Federal programs, and any other income). The 
amount of current income will be stated in frequency of receipt, e.g., 
per week, per month.
    (ii) Expenses means basic subsistence expenses, including current 
expenses for the following: Rent/mortgage for primary residence; 
vehicle payment for one vehicle; food for veteran, veteran's spouse, 
and veteran's dependents; education for veteran, veteran's spouse, and 
veteran's dependents; court-ordered payments of veteran or veteran's 
spouse (e.g., alimony, child-support); and including the average 
monthly expenses during the past year for the following: Utilities and 
insurance for the primary residence; out-of-pocket medical care costs 
not otherwise covered by insurance and medical insurance for the 
veteran, veteran's spouse, and veteran's dependents; and taxes paid on 
income.
    (iii) Fixed Assets means:
    (A) Real property and other non-liquid assets; except that this 
does not include--
    (1) Burial plots,
    (2) A residence if the residence is:
    (i) The primary residence of the veteran and the veteran is 
receiving only noninstitutional extended care service, or
    (ii) The primary residence of the veteran's spouse or the veteran's 
dependents (if the veteran does not have a spouse) if the veteran is 
receiving institutional extended care service.
    (3) A vehicle if the vehicle is:
    (i) The vehicle of the veteran and the veteran is receiving only 
noninstitutional extended care service, or
    (ii) The vehicle of the veteran's spouse or the veteran's 
dependents (if the veteran does not have a spouse) if the veteran is 
receiving institutional extended care service.
    (iv) Liquid assets means cash, stocks, dividends received from IRA, 
401K's and other tax deferred annuities, bonds, mutual funds, and 
retirement accounts (e.g., IRA, 401Ks, annuities), household furniture, 
household goods, clothing, jewelry, personal items.
    (v) Spousal allowance is an allowance of $20 per day that is 
included only if the spouse resides in a community (not 
institutionalized)).
    (vi) Veterans allowance is an allowance of $20 per day and 
expenses.
    (3) The maximum amount of a copayment for any month equals the 
copayment amount specified in paragraph (b)(1) of this section 
multiplied by the number of days in the month. The copayment for any 
month may be less than the amount specified in paragraph (b)(1) of this 
section only if the veteran provides information in accordance with 
this section to establish that the copayment should be reduced or 
eliminated.
    (e) Requirement to submit information. (1) Unless exempted under 
paragraph (f) of this section, a veteran must submit to a VA medical 
facility a completed VA Form 10-10EC and documentation requested by the 
Form at the following times:
    (i) At the time of initial request for an episode of extended care 
services.
    (ii) At the time of request for extended care services after a 
break in provision of extended care services for more than 30 days, and
    (iii) Each year at the time of submission to VA of VA Form 10-10EZ.
    (2) When there are changes that might change the copayment 
obligation (i.e., changes regarding fixed assets, liquid assets, 
expenses, income, or whether the veteran has a spouse or dependents 
residing in the community), the veteran must report those changes to a 
VA medical facility within 10 days of the change.
    (f) Veterans and care that are not subject to the copayment 
requirements. The following veterans and care are not subject to the 
copayment requirements of this section:
    (1) A veteran with a compensable service-connected disability,
    (2) A veteran whose annual income (determined under 38 U.S.C. 1503) 
is less than the amount in effect under 38 U.S.C. 1521(b),

[[Page 50598]]

    (3) Care for a veteran's noncompensable zero percent service-
connected disability,
    (4) An episode of extended care services that began on or before 
November 30, 1999,
    (5) Care authorized under 38 U.S.C. 1710(e) for Vietnam-era 
herbicide-exposed veterans, radiation-exposed veterans, Persian Gulf 
War veterans, or post-Persian Gulf War combat-exposed veterans,
    (6) Care for treatment of sexual trauma as authorized under 38 
U.S.C. 1720D, or
    (7) Care or services authorized under 38 U.S.C. 1720E for certain 
veterans regarding cancer of the head or neck.

(Authority: 38 U.S.C. 101(28), 501, 1701(7), 1710, 1720B, 1720D, 
1722A)

    (g) VA Form 10-10EC

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(Authority: 38 U.S.C. 501, 1710B)

[FR Doc. 01-24762 Filed 10-3-01; 8:45 am]
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