[Federal Register Volume 69, Number 4 (Wednesday, January 7, 2004)]
[Rules and Regulations]
[Pages 1060-1061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-319]



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Part VI





Office of Management and Budget

Department of Veterans Affairs





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38 CFR Part 17



Cost-Based and Interagency Billing Rates for Medical Care or Services 
Provided by the Department of Veterans Affairs; Charges Used for 
Recovery From Tortiously Liable Third Parties for Medical Care or 
Services Provided by the Department of Veterans Affairs; Final Rule and 
Notices

  Federal Register / Vol. 69 , No. 4 / Wednesday, January 7, 2004 / 
Rules and Regulations  

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AL48


Charges Used for Recovery From Tortiously Liable Third Parties 
for Medical Care or Services Provided by the Department of Veterans 
Affairs

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
medical regulations with respect to charges used for the purpose of 
recovering from tortiously liable third parties the reasonable value of 
medical care and services provided by VA. The effect of this action is 
to amend VA's medical regulations to conform with the decision of the 
Director of the Office of Management and Budget regarding the charges 
that are to be used for this purpose.

DATES: Effective Date: These amendments are effective January 7, 2004.

FOR FURTHER INFORMATION CONTACT: David Cleaver, Chief Business Office 
(168), Veterans Health Administration, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420, (202) 254-0361. (This is 
not a toll free number.)

SUPPLEMENTARY INFORMATION: This document amends VA's medical 
regulations that are set forth at 38 CFR part 17. More specifically, we 
are amending the regulations with respect to charges used for the 
purpose of recovering from tortiously liable third parties the 
reasonable value of medical care and services provided by VA.
    We are amending these regulations to reflect the decision of the 
Director of the Office of Management and Budget (OMB) to adopt the 
charges determined in accordance with the provisions of 38 CFR 17.101 
for the purpose of recovering from tortiously liable third parties the 
reasonable value of medical care and services provided by VA under 
circumstances subject to the Federal Medical Care Recovery Act (FMCRA), 
42 U.S.C. 2651-2653. Previously, the regulations stated that the rates 
generated by the methodology at 38 CFR 17.102(h) would be used for this 
purpose. Consistent with the OMB Director's decision, we are deleting 
that statement from Sec.  17.102(h), and adding a note at the end of 
Sec.  17.101 to indicate that OMB is prescribing the charges determined 
in accordance with that section for use for this purpose. Finally, we 
are adding a statement to Sec.  17.102(h) indicating that either VA or 
OMB will publish in the Federal Register the rates generated by the 
methodology of that section for the purposes described therein.
    There are two basic reasons for this change. First, VA's community-
based ``reasonable charges'' more accurately reflect the reasonable 
value of the medical care and treatment furnished by VA to the injured 
person, consistent with 42 U.S.C. 2651 and 2652, than do VA's cost-
based per-diem tort rates.
    Second, VA's present dual-rate billing system (tort feasor and 
health plan), using significantly different charges, is confusing and 
difficult to justify. VA claims, for example, may be made both against 
the tort feasor who caused the injury, using the current FMCRA per-diem 
rates, and against the veteran's health plan, using the significantly 
higher reasonable charges, for the same VA medical care. This not only 
is confusing to VA billing officials and makes settling claims more 
difficult, but such dual billing also may disadvantage veterans by 
providing a per-diem rate bill to assert against the tort feasor while 
exposing veterans to subrogation claims from their health plans who 
paid at the higher reasonable charges rates. Making the charges billed 
to all liable parties in FMCRA cases uniform will eliminate confusion 
and remove an impediment to allowing injured veterans to assert the 
higher reasonable charges rates for their causally related health care 
as a necessary and proper element of damages in their cases against the 
responsible tort feasors.
    This change has been agreed to by (1) the Department of Justice, 
which has jurisdiction over VA tort cases under the Federal Medical 
Care Recovery Act; (2) the Office of Management and Budget, which has 
the authority to prescribe the charges used for this purpose; and (3) 
the Department of Veterans Affairs.

Administrative Procedure Act

    Since the changes made in this regulatory amendment are 
informational or technical revisions conforming to the OMB decision 
described above, we have concluded that good cause exists for 
dispensing with the prior notice and comment and delayed effective date 
provisions of 5 U.S.C. 553. Under these circumstances, such procedures 
would be impracticable, unnecessary, and contrary to the public 
interest.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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 such 
effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866

    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 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, 5 
U.S.C. 601-612. This amendment would directly affect only individual 
tort feasors. Accordingly, 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 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: September 17, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR part 17 is amended as 
set forth below:

PART 17--MEDICAL

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


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


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2. Section 17.101 is amended by adding a Note immediately preceding the 
information collection parenthetical to read as follows:


Sec.  17.101  Collection or recovery by VA for medical care or services 
provided or furnished to a veteran for a nonservice-connected 
disability.

* * * * *

    Note to Sec.  17.101: The charges generated by the methodology 
set forth in this section are the same charges prescribed by the 
Office of Management and Budget for use under the Federal Medical 
Care Recovery Act, 42 U.S.C. 2651-2653.

* * * * *


Sec.  17.102  [Amended]

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3. In Sec.  17.102, paragraph (h), the last sentence is amended by 
removing ``are the same rates prescribed by the Office of Management 
and Budget and published in the Federal Register for use under the 
Federal Medical Care Recovery Act, 42 U.S.C. sections 2651-2653'' and 
adding, in its place, ``will be published by either VA or OMB in the 
`Notices' section of the Federal Register.''
[FR Doc. 04-319 Filed 1-6-04; 8:45 am]
BILLING CODE 8320-01-P