[Federal Register Volume 69, Number 117 (Friday, June 18, 2004)]
[Rules and Regulations]
[Pages 34074-34076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13764]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AL39


Priorities for Outpatient Medical Services and Inpatient Hospital 
Care

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule affirms without change an interim final rule 
that amended VA's medical regulations. The rule established that in 
scheduling appointments for non-emergency outpatient medical services 
and admissions for inpatient hospital care, VA will give priority to 
veterans with service-connected disabilities rated 50 percent or 
greater and veterans needing care for a service-connected disability. 
The Veterans' Health Care Eligibility Reform Act of 1996 authorizes VA 
to ensure that these two categories of veterans receive priority access 
to this type of care. The intended effect of this final rule is to 
carry out that authority.

DATES: Effective Date: June 18, 2004.

FOR FURTHER INFORMATION CONTACT: Ruth Hoffman, Office of the Assistant 
Deputy Under Secretary for Health (10A5A), Department of Veterans 
Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, at (202) 273-
8934.

SUPPLEMENTARY INFORMATION: We published in the Federal Register on 
September 17, 2002 (67 FR 58528), an interim final rule amending VA's 
medical regulations at 38 CFR 17.49 to include a new provision 
establishing for certain veterans a priority for outpatient medical 
services and inpatient hospital care. The priority was for two groups 
of veterans: Veterans needing care for service-connected conditions, 
and veterans with service-connected disability rated at 50 percent or 
more. We provided a 60-day comment period that ended on November 18, 
2002. We received comments from thirteen commenters, and three of them 
expressed support for the rule. The issues raised by the commenters are 
discussed below.
    One commenter stated that 38 U.S.C. 1705 and 1706 prohibit the 
Secretary from promulgating the interim final rule. The commenter 
stated that the plain language of 38 U.S.C. 1705 and 1706 prohibits VA 
from establishing criteria to determine when health care will be 
accorded a veteran, and what type of health care is provided, that are 
unrelated to the medical needs of enrolled veterans. The commenter 
stated that VA has no authority to insert barriers based solely upon 
status and not upon medical judgment. The commenter noted that some 
veterans are exempted from the requirement of enrollment as a 
precondition for receiving VA health care, but stated that this 
exemption does not lead to an absolute priority in scheduling 
appointments for outpatient medical services and admissions for 
inpatient hospital care. The commenter stated that Congress intended 
the priority system in section 1705 to control access to VA when 
resources are scarce, and that the ability to enroll or disenroll 
veterans based on priority categories is VA's tool to ensure that care 
to enrollees is timely and of acceptable quality. The commenter stated 
that once enrolled, veterans are to be accorded health care based on 
medical need, and not on legal status. The commenter also stated that 
veterans who are unemployable are not exempted from the necessity of 
enrollment, and are outside the authority VA claims for the interim 
rule.
    No changes are made based on this comment. The Veterans' Health 
Care Eligibility Reform Act of 1996, Public Law 104-262 (Eligibility 
Reform Act), supports the rule's provisions in 38 CFR 17.49 granting 
priority access to veterans with service-connected disabilities rated 
at 50 percent or greater based on one or more disabilities or 
unemployability and veterans needing care for a service-connected 
disability. Under the Eligibility Reform Act, these veterans are to be 
provided hospital care and medical services regardless of whether they 
enroll for care. The statute specifically directs the Secretary, in 
designing the enrollment system, to give highest priority to their 
needs when granting access to VA health care. The commenter asserts 
that veterans who are unemployable are not exempted from enrollment, 
but the commenter fails to note that there is a distinction between 
veterans determined to be unemployable for compensation purposes and 
veterans determined to be unemployable for pension purposes. Veterans 
determined to be unemployable for compensation purposes (see, e.g., 38 
CFR 3.341 and 4.16) are awarded a total disability rating based on 
service-connected disabilities and thus would be exempted

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from enrollment. Other veterans, lacking sufficient service-connected 
disability to establish unemployability for compensation purposes, are 
found unemployable for pension purposes (see, e.g., 38 CFR 3.342 and 
4.17), which would not provide a basis for exemption from enrollment. 
The reference to unemployability in Sec.  17.49 pertains only to 
veterans ``with service-connected disabilities rated 50 percent or 
greater based on * * * unemployability.'' Thus, all of the veterans to 
whom Sec.  17.49 applies would be exempted from enrollment.
    One commenter agreed that service-connected veterans should receive 
timely access to care, but stated that any such change should not 
create further delays for the veterans currently waiting for care. The 
commenter discussed the Eligibility Reform Act, noting that under this 
law, VA offers a full range of medical benefits for eligible and 
enrolled veterans, and that once enrolled, veterans have access to all 
of the health care services offered in VA's medical benefits package. 
The commenter expressed a concern that the interim final rule will 
compound waiting times. The commenter stated that all enrolled veterans 
deserve timely access to health care, and stated that inadequate 
discretionary funding causes waiting lists. The commenter described 
various proposals made to Congress to strengthen the annual VA medical 
care budget, and suggested that waiting times can be shortened by 
improving third-party collections, allowing Medicare reimbursement, and 
making VA medical care funding a mandatory account. The commenter 
stated that improved funding would ensure that all veterans receive 
quality healthcare in a timely manner. A number of additional 
commenters, including one who supported the rule, described current 
difficulties in obtaining timely VA care. One commenter stated that all 
veterans should be treated equally, regardless of their service-
connected condition. No changes are made based on these comments. The 
Secretary has authority, under the Eligibility Reform Act, to provide 
priority access to the veterans identified in this final rule. While 
our goal is to decrease or eliminate all wait periods, the final rule 
provides that those veterans with the highest claim to VA care, as 
identified by Congress, will have priority access to that care.
    One commenter stated that there should be priority access for 
service-connected veterans with no percentage limit. One commenter 
indicated general support for the regulation, but suggested that 
priority should be given first to combat veterans with service-
connected disabilities; then to all other combat veterans; and finally, 
to all other veterans. One commenter stated that top priority should be 
given to any veteran who served in a war, as well as veterans awarded 
the Purple Heart. As noted above, Congress has granted VA authority to 
provide priority access to the veterans identified in this final rule. 
Statutory authority does not allow VA to accord veterans priority 
access on the alternative bases described by the commenters.
    One commenter suggested that documentation of service connection is 
focused on physical ailments, and that VA records do not adequately 
track outpatient care such as psychology. The rule does not distinguish 
between service-connected conditions on the basis of physical or 
psychological conditions. In implementing the rule, all service-
connected conditions must be considered.
    One commenter expressed concern that veterans who already have 
appointments may lose their appointment times. Under VA policy 
implementing this rule, cancellation of a current appointment for 
another veteran is not permitted to be used as a mechanism to 
accommodate the priority scheduling described in the final rule.
    One commenter stated that the local VA facility is not following 
the interim final rule, and suggested that the regulation be amended to 
mandate immediate and punitive action against any clinic or hospital 
director that refuses to service all veterans for their medical 
conditions. The change suggested concerns agency management of its 
personnel, which is beyond the scope of this rulemaking.
    One commenter stated that veterans should not be required to pay 
any copayments for medications or medical services at VA facilities. 
Congress requires VA to charge copayments for certain hospital care and 
medical services. The issue of whether copayments should be charged is 
not within the scope of this rulemaking.
    For the reasons stated above, no changes are made based on these 
comments.
    Based on the rationale set forth in the preamble to the interim 
final rule and in this preamble, we are adopting the provisions of the 
interim final rule as a final rule without change.

Administrative Procedure Act

    This document affirms without any changes an interim final rule 
that is already in effect. Accordingly, we have determined under 5 
U.S.C. 553 that there is good cause for dispensing with a delayed 
effective date based on the conclusion that such procedure is 
impracticable and unnecessary.

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 final 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).

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment 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 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

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

    Approved: June 9, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
Accordingly, the interim final rule amending 38 CFR part 17 which was 
published at 67 FR 58528 on September

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17, 2002, is adopted as a final rule without change.

[FR Doc. 04-13764 Filed 6-17-04; 8:45 am]
BILLING CODE 8320-01-P