[Federal Register Volume 72, Number 140 (Monday, July 23, 2007)]
[Proposed Rules]
[Pages 40096-40105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14069]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 70

RIN 2900-AM02


Beneficiary Travel Under 38 U.S.C. 111 Within the United States

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the beneficiary travel 
regulations of the Department of Veterans Affairs (VA) that provide a 
mechanism for payment of travel expenses within the United States under 
38 U.S.C. 111 to help veterans and other persons obtain care and 
services from VA's Veterans Health Administration (VHA). We propose to 
revise the regulations to more fully implement the statutory provisions 
governing such payments.

DATES: Comments must be received by VA on or before September 21, 2007.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420 or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AM02--Beneficiary Travel Under 38 U.S.C. 111 Within the 
United States.'' Copies of comments received will be available for 
public inspection in the Office of Regulation Policy and Management, 
Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through 
Friday (except holidays). Please call (202) 273-9515 for an 
appointment. (This is not a toll-free number.) In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at http://www.regulations.gov. 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: Tony Guagliardo, Chief Business 
Office, Veterans Health Administration, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420; (202) 254-0406. (This is 
not a toll-free number.)

SUPPLEMENTARY INFORMATION: We propose to revise the beneficiary travel

[[Page 40097]]

regulations captioned ``Transportation of Claimants and 
Beneficiaries.'' These regulations provide a mechanism for payment of 
travel expenses within the United States under 38 U.S.C. 111 to help 
veterans and other persons obtain care and services from VHA. The 
current regulations are set forth at 38 CFR 17.143 through 17.145. We 
propose to transfer the current regulations to a new 38 CFR part 70 and 
to make changes as discussed below.
    The current regulations at Sec.  17.143(b) through (e) contain 
provisions listing the eligibility criteria for paying beneficiary 
travel expenses under 38 U.S.C. 111, for charging a statutory 
deductible, and for paying beneficiary travel expenses based upon a 
finding that an individual is unable to defray the expenses of travel. 
Except for changes discussed below, the substance of these provisions 
is included in proposed Sec. Sec.  70.4, 70.10, 70.20, and 70.31.
    The current regulations at Sec.  17.143(f), (g), (h), and (k) refer 
to types of activities for which beneficiary travel may be paid. We 
propose to remove these provisions for reasons set forth below in the 
discussion regarding the Medical Benefits Package under the heading 
``Sec.  70.10--Eligible persons.''
    The current regulations at Sec.  17.143(i), (j), (l), and (m) 
concern special requirements for payment. Except for changes discussed 
below, the substance of these provisions is included in proposed Sec.  
70.30.
    The current regulation at Sec.  17.143(n) concerns the provision of 
VA beneficiary travel to beneficiaries of other Federal agencies and 
allied beneficiaries as defined by 38 U.S.C.109. Proposed Sec.  70.10 
provides eligibility for such beneficiaries subject to reimbursement 
agreement with the appropriate agency or government and is essentially 
unchanged from the previous regulation.
    Current Sec.  17.144 concerns the application of the deductible 
requirement, which we propose to amend and move to new Sec.  70.31. 
Current Sec.  17.144 also sets forth payment principles concerning 
travel costs, which we propose to amend and move to new Sec.  70.30.
    Current Sec.  17.145 contains provisions regarding general prior 
approval for beneficiary travel. In a document published in the Federal 
Register on October 21, 1991 (56 FR 52,426), we deleted the main 
provisions requiring a general prior approval for beneficiary travel. 
We intended to remove all of the provisions concerning general prior 
approval for beneficiary travel, but inadvertently failed to remove 
Sec.  17.145. Accordingly, we propose to remove this section.

Purpose and Scope--Sec.  70.1

    Section 70.1 would explain the purpose and scope of the VA's 
beneficiary travel regulations consistent with the current regulations. 
The provisions of this section would not constitute a substantive 
change.

Definitions--Sec.  70.2

    Proposed Sec.  70.2 would establish definitions of ``attendant,'' 
``beneficiary,'' ``claimant,'' ``clinician,'' ``emergency treatment,'' 
``irregular discharge,'' ``special mode of transportation,'' ``United 
States,'' ``VHA,'' ``VA,'' ``VA authorized health care facility,'' and 
``VA facility.'' While used in prior regulations the terms 
``attendant,'' ``beneficiary,'' and ``irregular discharge'' have not 
been previously defined. This led to occasional confusion by veterans, 
the public, and VA field stations when processing claims for 
beneficiary travel payments. Therefore, for purposes of clarification, 
we propose to define these terms in the new part 70.
    Currently, 38 CFR 17.143(c)(2)(i) requires a ``physician'' to make 
medical determinations regarding the need for a special mode of 
transportation. We deleted the requirement that a physician make the 
determination. We would expect a clinician to be the decisionmaker. 
However, by not specifying in the regulation that a physician will be 
the decisionmaker will ensure that the claimant has a meaningful right 
of appeal via the VA clinical appeals process should he or she disagree 
with the decision of the clinician.
    The definition of ``United States'' is consistent with the 
definition of ``State'' in 38 U.S.C. 101(20). The term ``claimant'' is 
the same as that established in 38 CFR 17.123.
    We propose to define ``VA authorized health care facility'' and 
``VA facility'' for clarification purposes due to occasional confusion 
on the part of veterans, the public, and VA staff.
    The definition of ``special mode of transportation'' has been 
changed in the proposed rule to clarify the status of privately-owned 
vehicles (POV) that have been modified to transport wheelchairs or 
disabled individuals. The intent of ``special mode of transportation'' 
within the context of 38 U.S.C. 111 is to provide payment for 
beneficiary travel in commercially operated vehicles. Therefore, we 
propose that for the purposes of this rule that a POV is not to be 
considered a ``special mode of transportation.''
    Existing regulations do not define the term ``emergency 
treatment.'' However, the proposed rule would define that term because 
it is one of the factors that VHA considers when authorizing and 
providing payment for travel by special mode of transportation. We 
propose to define ``emergency treatment'' to mean ``treatment 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).'' This definition provides a 
workable, common-sense standard for determining when emergency 
treatment would occur for purposes of determinations under proposed 
Sec. Sec.  70.4 (Criteria for approvals), 70.20 (Application), and 
70.32 (Reimbursement or prior payment). Also, this definition is 
consistent with the standard in 38 CFR 17.1002 for determining when 
emergency treatment would occur under the regulations concerning 
payment for emergency transportation of veterans for non-service-
connected conditions in non-VA facilities.

Determination of Secretary--Sec.  70.3

    Proposed Sec.  70.3 is new. It would implement 38 U.S.C. 111, which 
authorizes the Secretary to make beneficiary travel payments in any 
fiscal year if he determines that VA has available funding.

Criteria for Approvals--Sec.  70.4

    Although it is apparent from the current regulations at 38 CFR 
17.143 and 17.144 that a beneficiary must meet certain requirements to 
obtain payment for beneficiary travel (e.g., must be within an eligible 
category, and must obtain prior approval for a special mode of 
transportation in non-emergency situations), the current regulations do 
not set forth all of the applicable criteria for approving or 
disapproving payments under current VA practice. Proposed Sec.  70.4 
provides a full list of the approval criteria that VA would apply to 
claims for beneficiary travel, including the individuals who would be 
eligible for benefits, application procedures, payment criteria for 
travel without prior

[[Page 40098]]

VA authorization, and criteria for approval of travel in a special mode 
of transportation. VA has determined that these criteria would permit 
VA to distribute available travel funds to beneficiaries under the 
discretionary authority in 38 U.S.C. 111 while maintaining high 
standards for delivery of VA's health care benefits. Also, for purposes 
of fairness, the proposed rule would allow payment for travel when the 
failure to obtain scheduled care or services was due to actions such as 
a last minute clinic cancellation by VA officials or persons acting on 
behalf of VA. Applicants would be required to satisfy all of the 
criteria to receive payments.
    Proposed Sec.  70.4(b) provides that when payment for beneficiary 
travel is requested after the provision of care or services and the 
travel did not include a special mode of transportation, VA would 
approve round-trip payment under this part only if the travel was in 
connection with care or services that were scheduled with VHA prior to 
arrival at the facility where the care or services were to be obtained, 
or for emergency treatment. Also, proposed Sec.  70.4(c) provides that 
when payment for beneficiary travel is requested for travel for care or 
services that were not scheduled with VHA prior to arrival at the 
facility and the travel did not include a special mode of 
transportation, VA would not approve round-trip payment. However, if 
care or services actually are provided during such unscheduled visits, 
VA would approve payment for the return trip.
    Proposed Sec.  70.4(b) and (c) would help ensure that beneficiary 
travel is covered only when necessary for the provision of care or 
services and not merely to obtain cash for other reasons. It would also 
help ensure that beneficiaries have the means to return home after 
receiving nonscheduled care or services.
    Proposed Sec.  70.4(d) restates a requirement in current 38 CFR 
17.143(c)(2)(iii) for prior approval of travel by a special mode of 
transportation. Proposed paragraph (d) also restates a provision in 
current Sec.  17.143(c)(2)(i).

Eligible Persons--Sec.  70.10

    The proposed rule at Sec.  70.10 designates as eligible persons all 
of those categories of persons specifically mentioned in VA statutes as 
persons for which payment for beneficiary travel may be made by VHA 
under 38 U.S.C. 111. These are the same persons eligible for 
beneficiary travel payments under the current program, with one 
exception. The current regulations include individuals eligible for 
payment of travel under the Civilian Health and Medical Program of the 
Department of Veterans Affairs (CHAMPVA), which provides care or 
services for certain spouses or children of veterans or persons who 
died in the line of duty. We propose to remove CHAMPVA beneficiaries 
getting their care through VA facilities from the list of persons 
eligible for beneficiary travel payments because there exists no 
statutory authority to provide them these benefits. Although 38 U.S.C. 
1781 provides that these beneficiaries shall be eligible for the same 
medical services as a veteran, a veteran must still meet the additional 
eligibility criteria set forth in section 111 to receive beneficiary 
travel benefits. That is, not all veterans are eligible for beneficiary 
travel benefits under section 111. Thus a CHAMPVA beneficiary receiving 
care through VA facilities would similarly have to meet the additional 
eligibility criteria of section 111, which they do not. VA is 
requesting comments on this change.
    Under 38 U.S.C. 111, certain veterans are eligible for beneficiary 
travel payments for ``examination, treatment, or care.'' The proposed 
rule at Sec.  70.10(b), provides that ``examination, treatment, or 
care'' means all of the care provided under the Medical Benefits 
Package in 38 CFR 17.38. This definition would replace current 38 CFR 
17.143, which limits beneficiary travel payments to certain types of 
activities (hospital admissions, hospital readmissions, preparatory and 
post hospital care, hospital discharges, and outpatient services). We 
propose to clearly state in broader language that beneficiary travel 
payments are available for all of the care services provided under the 
Medical Benefits Package. The current regulations and the proposed rule 
both allow for payment related to the use of a special mode of 
transportation if an individual is unable to defray the expense. 
Therefore, the definition of ``unable to defray'' in proposed Sec.  
70.10(c) is the same as in current 38 CFR 17.143(e). This definition is 
for the purposes of this proposed rule only and does not apply to any 
other regulations promulgated by VA.
    We note that the provisions of current Sec.  17.143(d) refer to 38 
U.S.C. 1701(6)(B) and 38 U.S.C. 1713. These statutes are not included 
as authorities in the proposed rule because Public Law 107-135 
redesignated the authorities as 38 U.S.C. 1782 and 1783. These 
provisions concern limited eligibility for beneficiary travel payments 
for individuals with specified relationships to certain veterans.

Application--Sec.  70.20

    The provisions of proposed Sec.  70.20 are new, except as discussed 
below. The new provisions are consistent with current VA policy and 
practice at VA health care facilities.
    Current Sec.  17.144(d) provides, ``Transportation will not be 
authorized for the cost of the travel in excess of the actual expense 
incurred by any person as certified by that person in writing.'' In 
contrast, the proposed rule at Sec.  70.20(a) generally provides that a 
claimant may apply for beneficiary travel payments orally or in writing 
but must provide to VA the receipt for each expense other than for 
mileage. The proposed rule will reduce the burden on claimants while 
ensuring that VA obtains the necessary information for making 
beneficiary travel determinations. Veterans usually request payment of 
beneficiary travel before they leave the VA facility. There is no need 
to obtain a certification or written request since VA can independently 
determine the length of travel and the receipts would establish travel 
expenditures other than mileage.
    For beneficiary travel that does not include a special mode of 
transportation, proposed Sec.  70.20(b) provides that a claimant must 
apply for payment of beneficiary travel within 30 days after the travel 
is completed. In the usual case, it is not administratively feasible 
for VA to grant approval prior to travel. Further, the proposed 
provisions requiring that a claimant must apply for payment of 
beneficiary travel within 30 days after the travel is completed would 
provide sufficient time for applicants to apply and would assist VA in 
monitoring the expenditure of beneficiary travel funds.
    For beneficiary travel that includes a special mode of 
transportation, proposed Sec.  70.20(c), with one exception, provides 
that a claimant must apply for payment of beneficiary travel and obtain 
approval from VA prior to the travel. Under the exception, if the 
travel included a special mode of transportation and the claimant 
without prior approval applied for payment of the beneficiary travel 
within 30 days after the travel is completed, the application would be 
considered timely submitted if the travel by special mode of 
transportation was for emergency treatment. This is consistent with the 
time period for submitting applications discussed above, limits VA's 
payments to actual reimbursements, and otherwise implements specific 
requirements of 38 U.S.C. 111(b)(3)(A) regarding prior approval.

[[Page 40099]]

    Proposed Sec.  70.20(d) provides a new requirement that a claimant 
must apply for and receive approval prior to incurring expenses for 
meals and/or lodging. Current 38 CFR 17.143(l) authorizes payments for 
meals and lodging but does not require that the claimant obtain prior 
VA approval. The prior approval provisions would provide VA with the 
opportunity to explore reasonable options and minimize costs.
    The proposed rule at Sec.  70.20(e) provides that if VA determines 
that additional information is needed to make a determination, VA would 
notify the claimant in writing of the deficiency and request the needed 
additional information. Section 70.20(e) further provides that if the 
claimant has not responded to the request within 30 days, VA may decide 
the claim prior to the expiration of the 1-year submission period 
required by 38 U.S.C. 5103(b)(1) based on all the information contained 
in the file, including any information it has obtained on behalf of the 
claimant. If VA does so, however, and the claimant subsequently 
provides the information within 1 year of the date of the request, VA 
must readjudicate the claim. This would help ensure the timely 
resolution of matters while meeting the statutory requirements.
    Proposed Sec.  70.20(f) provides that if a claimant becomes 
eligible for beneficiary travel benefits after the travel takes place, 
the beneficiary may apply for such benefits within 30 days of the date 
when he or she became eligible. This would help ensure that persons 
would not be barred from beneficiary travel in those cases when they 
could not have known they were eligible for such benefit at the time of 
travel.
    To ensure that beneficiaries meet the application deadline, the 
proposed rule at Sec.  70.20(g) provides that the date of an 
application for beneficiary travel is the postmark date, if mailed; or 
the date of submission if hand delivered, provided by electronic means, 
or provided orally.

Where To Apply--Sec.  70.21

    The proposed rule at Sec.  70.21 provides that claimants must apply 
for travel benefits at the Chief Business Office or with the designated 
official at the VA health care facility responsible for the care being 
provided and for which travel is required. While this has been general 
field policy, previous regulations have not designated an office or 
official for receipt of beneficiary travel claims. Designation of an 
office or official to receive claims will help ensure that requests for 
travel benefits are appropriately routed and timely processed.

Payment Principles--Sec.  70.30

    Under proposed Sec.  70.30(a), the Secretary, subject to the 
deductibles required under Sec.  70.31, would pay for beneficiary 
travel as explained below.
    Under 38 U.S.C. 111, VA has discretion to establish payment 
principles based on the number of miles traveled and/or based on actual 
necessary expenses. Pursuant to that discretion, VA currently pays a 
per-mile allowance for travel by POV and pays the actual cost of travel 
by common carrier and for other necessary expenses attendant to travel, 
subject to specified limitations. However, current regulations do not 
specifically state that reimbursement will be based upon mileage 
(except as noted). Therefore, proposed paragraph (a) includes 
provisions stating that the Secretary would establish and pay a per-
mile rate for use of a POV or the actual cost for use of the most 
economical common carrier (bus, train, taxi, airplane, etc.), for 
travel to and from VA authorized health care and for travel by a POV 
for a compensation and pension examination that is solely ``for the 
convenience of the Government'' (e.g., repeat a laboratory test, redo a 
poor quality x-ray). The proposed rule would establish when and how the 
Secretary would determine whether the mileage rate should be changed. 
The payment principles are based on the Secretary's determination under 
Sec.  70.3 to allocate available funds for VA health care programs, and 
are intended to provide a reasonable and uniform amount of 
reimbursement consistent with the administration of VA's overall health 
care program.
    Proposed Sec.  70.30(a)(1)(ii) and (iii) limiting payment for the 
use of a POV and payment for the use of a common carrier are based on 
statutory limitations at 38 U.S.C. 111(g)(2)(B) and replace 38 CFR 
17.144(c).
    Proposed Sec.  70.30(a)(2) includes provisions stating that VA 
would pay the actual cost of ferry fares, bridge tolls, road tolls, 
tunnel tolls and would pay the actual cost of a special mode of 
transportation. This implements provisions in 38 U.S.C. 111(a) and 
(b)(3)(A).
    Proposed Sec.  70.30(a)(3) includes provisions stating that VA 
would pay the actual cost for meals, lodging, or both, when VA 
determines that an overnight stay is required, not to exceed 50 percent 
of the amount allowed for government employees under 5 U.S.C. 5702. The 
section also identifies four factors as examples of those VA will 
consider in determining whether an overnight stay is necessary. Paying 
for the cost of meals only when there is an overnight stay is a 
reasonable cost-control measure. Current regulations do not specify a 
maximum for payment of meals and lodging. This proposed payment 
principle is based on VA's concern about the adequate funding and 
administration of all VA health care programs; in view of the overall 
cost of administrating these programs, it is intended to provide a 
reasonable and uniform amount of payment.
    The proposed rule at Sec.  70.30(b) would place limits on 
beneficiary travel payments as explained below.
    Current 38 CFR 17.143(j)(1) provides that VA will pay expenses for 
return transportation to ``the point from which the beneficiary 
traveled to receive care, or any other place if there is no additional 
cost.'' Proposed paragraphs (b)(1) and (2), except as discussed below, 
would clarify that payment is limited to travel from the beneficiary's 
residence to the nearest facility (VA facility or non-VA facility if VA 
determines that it is necessary to obtain the care or services at a 
non-VA facility) where the care or services could be provided and from 
such VA facility to the beneficiary's residence. This clarification is 
necessary to ensure that beneficiaries do not report longer distances 
than they actually traveled to obtain higher payments. Further, the 
exceptions set forth below explain those circumstances when it appears 
appropriate to pay benefits from points other than the beneficiary's 
residence.
    If the beneficiary is not staying at his or her residence, proposed 
Sec.  70.30(b)(3) would permit payment for travel from or to a place 
where the beneficiary is residing but this payment may not exceed the 
amount that would be payable for travel from the beneficiary's 
residence. This provision clarifies current 38 CFR 17.143(j)(1).
    Current Sec.  17.143(j)(3) provides, ``Transportation may be 
furnished to a point other than that from which a patient had proceeded 
to a hospital upon a showing of bona fide change of address to the 
patient's residence during the period of hospital care.'' VA intended 
that this provision would allow for payment for an individual's return 
trip to a different location in the same area, not to a distant place. 
Proposed Sec.  70.30(b)(4) would permit payment for the return trip 
travel to the new residence in a distant place, except that payment may 
not exceed the amount that would be allowed from the facility nearest 
to the new residence where the care or services could have been 
provided. For example, if during a

[[Page 40100]]

period of care or services in Baltimore, a beneficiary changed his or 
her address from Baltimore to Detroit, payment for the return trip 
would be limited to that allowed for traveling to the new residence 
from the nearest facility to the new residence in Detroit where the 
care or services could have been provided.
    Proposed Sec.  70.30(b)(5), which would allow payment for certain 
travel for beneficiaries, in substance, restates the current provisions 
in 38 CFR 17.143(j)(2).
    Proposed Sec.  70.30(b)(6) provides that payment may be made for 
travel from a non-VA health care facility where the beneficiary is 
receiving care or services to the nearest VA facility where the 
appropriate care or services could be provided. This new provision 
would clarify that VA may pay for travel to a VA facility from another 
medical facility, not just from the veteran's residence.
    Proposed Sec.  70.30(b)(7) provides that payment would not be made 
for return travel for a patient receiving an irregular discharge. This, 
in substance restates most of current 38 CFR 17.143(j)(4). However, the 
revised version does not include a provision in the current regulation 
that allows payment when the patient receiving an irregular discharge 
is unable to defray the expense of the return travel. That provision 
was deleted because payment in such cases inappropriately encourages 
the unacceptable behavior of leaving the facility on an irregular 
discharge.
    Proposed Sec.  70.30(b)(8) provides that on a case-by-case basis, 
payment for travel may be paid for any distance if it is financially 
favorable to the government. This new provision would provide VA with 
flexibility to, for example, pay for travel to a more distant nursing 
home when admission to that nursing home is a prerequisite to qualify 
for community assistance that would more than offset the additional 
travel payment.
    Proposed Sec.  70.30(c) provides that payment for travel of an 
attendant would be calculated on the same basis as for the beneficiary 
except that duplicate payment for costs would not be allowed. For 
example, if a beneficiary and an attendant travel in the same 
automobile, the travel would be limited to only one mileage payment. 
This new provision would clarify and implement the provisions of 38 
U.S.C. 111(e) regarding payment of beneficiary travel for an attendant.
    Proposed Sec.  70.30(f) provides that the Secretary shall conduct 
periodic investigations in consultation with the Administrator of the 
General Services Administration in order to determine whether 
reimbursement rates noted in Sec.  70.30(a) should change. While always 
required by statute this would be an addition to current beneficiary 
travel regulations.
    Although VA policy is generally to provide payments for beneficiary 
travel consistent with statutory authority and availability of funds, 
there are some situations where such payments are not medically 
feasible. Accordingly, under proposed Sec.  70.30(e), VA would not pay 
beneficiary travel if paying a travel allowance would be 
counterproductive to prescribed therapy, and the determination is 
recorded in the person's VA medical records, and the chief of the care 
service endorses the determination in the medical records. These 
provisions reflect the policy of withholding payment for beneficiary 
travel when such payment could be detrimental to a beneficiary's 
treatment.

Deductibles--Sec.  70.31

    Paragraph (a) of proposed Sec.  70.31 provides that the VA shall 
deduct an amount established by the Secretary (currently $3 or the 
total amount of travel if it is less than $3) for each one-way trip 
from the amount otherwise payable for such one-way trip, except that VA 
shall not make any more deductions in a calendar month after the 
completion of six one-way trips for which deductions were made in such 
calendar month. In addition, whenever the Secretary makes adjustments 
to the mileage reimbursement rates as noted in Sec.  70.30(a)(1)(iv), 
the deductible amount will be adjusted proportionately.
    Proposed Sec.  70.31 implements 38 U.S.C. 111(c)(1), (2) and (5), 
which require VA to deduct $3 from the amount otherwise payable for 
each one-way trip with a calendar monthly cap of $18 (but limiting 
these $3 deductions to six one-way trips), and to adjust 
proportionately the amounts whenever there is a change to the mileage 
rates. However, since the deductible amount and monthly cap could 
change, these proposed regulations do not limit those rates to those 
currently established. In addition, we do not interpret 38 U.S.C. 
111(c) as requiring VA to deduct more than the cost of a one-way trip 
if the reimbursement would be less than the deductible. Therefore, in a 
given calendar month, we would pay beneficiary travel without a 
deductible for trips seven, eight, nine, and so on, even if the total 
deductible amount for the first six trips were less than the monthly 
cap in effect at time of travel.
    Section 111(c)(4) further provides that the VA may waive the 
deductible when imposition of the deductible would cause severe 
financial hardship. Under the current regulations, the test for 
``severe financial hardship'' is essentially the same as ``unable to 
defray,'' which is used for determinations regarding basic eligibility 
for beneficiary travel. However, we do not believe that Congress 
intended the terms ``unable to defray'' and ``severe financial 
hardship'' to have the same meaning. The term ``severe financial 
hardship'' would seem to require that a beneficiary have less financial 
ability than would be the maximum allowed for basic eligibility for 
beneficiary travel. Accordingly, we propose that an individual with 
``severe financial hardship'' is one who has no more than 90 percent of 
the maximum income allowed for meeting the ``unable to defray'' 
standard.

Reimbursement or Prior Payment--Sec.  70.32

    Proposed Sec.  70.32(a) provides that payment would be made on a 
reimbursement basis after the travel has occurred with the following 
two statutory exceptions.
    Upon completion of examination, treatment, or care, 38 U.S.C. 
111(d) specifically allows payment to be made before the return travel 
has occurred. This helps provide the beneficiary with resources for 
return travel. This exception is included in proposed Sec.  
70.32(a)(1).
    With respect to a special mode of travel, 38 U.S.C. 111(b)(3)(B) 
authorizes VA to provide payment for beneficiary travel to the provider 
of the transportation before determining eligibility of such person for 
payment if VA determines that providing payment is in the best interest 
of furnishing care and services. This exception is included in proposed 
Sec.  70.32(a)(2). We would interpret ``is in the best interest of 
furnishing care and services'' to mean ``that the travel is for 
emergency treatment and VA determines that the beneficiary is eligible 
for payment for the travel.'' In non-emergency situations, we would 
have time to determine eligibility before travel. Further, the proposed 
provisions are designed to help ensure that individuals likely to be 
subsequently found eligible are not initially denied travel by special 
mode of transportation.
    Proposed Sec.  70.32(b) provides that payment would be made to the 
beneficiary, except that VA may make a beneficiary travel payment to a 
person or organization other than the beneficiary upon satisfactory 
evidence that the person or organization actually provided or paid for 
the travel. This is for the convenience of the veteran or the

[[Page 40101]]

person or organization that provided or paid for the travel.

Administrative Procedures--Sec.  70.40

    Proposed Sec.  70.40 incorporates reconsideration and appeal rights 
as established by 38 CFR 17.133 and 38 CFR parts 19 and 20. These 
rights will be utilized when an adverse decision is made regarding 
beneficiary travel benefits. This is an established procedure, which we 
intend to clarify in this proposed rule.

Recovery of Payments--Sec.  70.41

    For informational purposes, the proposed rule at Sec.  70.41 makes 
reference to applicable VA provisions governing recovery of payments.

False Statements--Sec.  70.42

    For informational purposes, the proposed rule at Sec.  70.42 
advises that a person who makes a false statement for the purpose of 
obtaining payments for beneficiary travel would be subject to 
prosecution under applicable laws, including 18 U.S.C. 1001.

Reduced Fare Requests--Sec.  70.50

    Proposed Sec.  70.50 restates statutory provisions authorizing VA 
to make forms available to veterans and their authorized attendants for 
use in requesting a reduced fare from transportation providers when 
they are traveling at their own expense in relation to VA or VA-
authorized health care. Whether to grant a reduced fare is determined 
by the transportation provider.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, 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 the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined to be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that may raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order and/or 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof.

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 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 given year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    The proposed rule includes provisions constituting collections of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521) 
(``Act'') that would need approval by the Office of Management and 
Budget (OMB). Accordingly, under section 3507(d) of the Act, VA has 
submitted a copy of this rulemaking action to OMB for review.
    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 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, Regulations Management (00REG), Room 1068, 810 Vermont Ave., 
NW., Washington, DC 20420; or faxed to (202) 273-9026; or e-mailed to 
http://www.regulations.gov. Comments should indicate that they are 
submitted in response to ``RIN 2900-AM02.''
    Title: VHA Beneficiary Travel Program Under 38 U.S.C. 111.
    Summary of collection of information: The proposed rule at Sec.  
70.20 requires that certain information is required by VA to determine 
payment of VHA beneficiary travel under 38 U.S.C. 111. In most cases, 
this information is electronically available due to previous 
submissions by the claimant for other VHA benefits or through other VA 
data sources and no further information is required for VA to determine 
eligibility and payment amount for VHA beneficiary travel. However, in 
those cases where a claimant requests reimbursement for the cost of 
ferry fares, bridge tolls, road tolls, or tunnel tolls in accordance 
with Sec.  70.30(a)(2), such information is not available and receipt 
for those expenses must be collected from the claimant.
    Description of the need for information and proposed use of 
information: This information is needed to determine eligibility for 
payment of beneficiary travel.
    Description of likely respondents: Beneficiaries and attendants 
requesting payment for beneficiary travel.
    Estimated number of respondents per year: 23,835.
    Estimated frequency of responses per year: 3 per individual (total 
of 68,505).
    Estimated average burden per response: 3 minutes.
    Estimated total annual reporting and recordkeeping burden: 3,425 
hours.
    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 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

[[Page 40102]]

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.

Regulatory Flexibility Act

    VA hereby certifies that the provisions of the proposed 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. 601-602. This proposed rule primarily affects individuals and 
any effects on small businesses would be inconsequential. Therefore, 
pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial 
and final regulatory flexibility analysis requirement of sections 603 
and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles are 64.007, Blind Rehabilitation Centers; 64.009, Veterans 
Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, 
Veterans Dental Care; 64.013, Veterans Prosthetic Appliances; 64.018, 
Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation 
Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary 
Care.

List of Subjects in 38 CFR Parts 17 and 70

    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: March 26, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    Editorial Note: This document was received at the Office of the 
Federal Register on July 17, 2007.

    For the reasons set forth in the preamble, the Department of 
Veterans Affairs proposes to amend 38 CFR Chapter I as follows:

PART 17--MEDICAL

    1. The authority citation continues to read as follows:

    Authority: 38 U.S.C. 501, 1721, and as stated in specific 
sections.

    2. In Sec.  17.38, revise paragraph (a)(1)(xii) to read as follows:


Sec.  17.38  Medical benefits package.

    (a) * * *
    (1) * * *
    (xii) Payment of beneficiary travel as authorized under 38 CFR part 
70.
* * * * *


Sec. Sec.  17.143 through 17.145  [Removed]

    3. Remove Sec. Sec.  17.143 through 17.145 and the undesignated 
center heading ``TRANSPORTATION OF CLAIMANTS AND BENEFICIARIES''.
    4. Add a new part 70 to read as follows:

PART 70--VHA BENEFICIARY TRAVEL UNDER 38 U.S.C. 111

Sec.
70.1 Purpose and scope.
70.2 Definitions.
70.3 Determination of Secretary.
70.4 Criteria for approvals.
70.10 Eligible persons.
70.20 Application.
70.21 Where to apply.
70.30 Payment principles.
70.31 Deductibles.
70.32 Reimbursement or prior payment.
70.40 Administrative procedures.
70.41 Recovery of payments.
70.42 False statements.
70.50 Reduced fare requests.

    Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 
1782, 1783, E.O. 11302.


Sec.  70.1  Purpose and scope.

    (a) This part provides a mechanism under 38 U.S.C. 111 for the 
Veterans Health Administration (VHA) to make payments for travel 
expenses incurred in the United States to help veterans and other 
persons obtain care or services from VHA.
    (b) This part does not cover payment for emergency transportation 
of veterans for non-service-connected conditions in non-VA facilities 
when the payment for transportation is covered by Sec. Sec.  17.1000 
through 17.1008 of this chapter, as authorized by 38 U.S.C. 1725.

(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.2  Definitions.

    For purposes of this part:
    Attendant means an individual traveling with a beneficiary who is 
eligible for beneficiary travel and requires the aid and/or physical 
assistance of another person.
    Beneficiary means a person determined eligible for VHA benefits.
    Claimant means a veteran who received services (or his/her 
guardian) or the hospital, clinic, or community resource that provided 
the services, or the person other than the veteran who paid for the 
services.
    Clinician means a Physician, Physician Assistant (PA), Nurse 
Practitioner (NP), Psychologist, or other independent licensed 
practitioner.
    Emergency treatment means treatment 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).
    Irregular discharge means the release of a competent patient from a 
VA or VA authorized hospital, nursing home, or domiciliary care due to: 
refusal, neglect or obstruction of examination or treatment; leaving 
without the approval of the treating health care clinician; or 
disorderly conduct and discharge is the appropriate disciplinary 
action.
    Special mode of transportation means an ambulance, ambulette, air 
ambulance, wheelchair van, or other modes of transportation specially 
designed to transport disabled persons (this would not include a mode 
of transportation not specifically designed to transport disabled 
persons, such as a bus, subway, taxi, train, or airplane). A modified, 
privately owned vehicle, with special adaptive equipment and/or capable 
of transporting disabled persons is not a special mode of 
transportation for the purposes of this rule.
    United States means each of the several States, Territories, and 
possessions of the United States, the District of Columbia, and the 
Commonwealth of Puerto Rico.
    VA means the Department of Veterans Affairs.
    VA authorized health care facility means a non-VA health care 
facility where VA has approved care for an eligible beneficiary at VA 
expense.
    VA facility means VA Medical Center (VAMC), VA Outpatient Clinic 
(OPC), or VA Community Based Outpatient Clinic (CBOC).
    VHA means the Veterans Health Administration, a principal unit 
within VA.

(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)


[[Page 40103]]




Sec.  70.3  Determination of Secretary.

    For each fiscal year, the Secretary of Veterans Affairs will 
determine whether funds are available for paying expenses of VHA 
beneficiary travel under 38 U.S.C. 111. If the Secretary determines 
that funds are available for such purpose, VA will make payment for 
expenses of such travel in accordance with the provisions of this part.

(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.4  Criteria for approvals.

    (a) VA will approve payment for beneficiary travel under this part 
if:
    (1) The travel was made to obtain care or services for a person who 
is eligible for beneficiary travel payments under Sec.  70.10,
    (2) The travel was in connection with care or services for which 
such person was eligible under the laws administered by VA,
    (3) Application was made in accordance with Sec.  70.20,
    (4) All of the requirements of this part for payment are met, and
    (5) Any failure to obtain the care or services was due to actions 
by officials of VA or persons acting on behalf of VA.
    (b) When a claimant requests payment for beneficiary travel after 
the provision of care or services and the travel did not include a 
special mode of transportation, VA will approve round-trip payment 
under this part only if the travel was:
    (1) In connection with care or services that were scheduled with 
VHA prior to arrival at the VHA-designated facility, or
    (2) For emergency treatment.
    (c) When a claimant requests payment for beneficiary travel for 
care or services that were not scheduled with VHA prior to arrival at 
the facility and were not emergency treatment and the travel did not 
include a special mode of transportation, VA will not approve round-
trip payment under this part but will approve payment for the return 
trip if VHA actually provided care or services.
    (d) Except as provided in Sec.  70.32 concerning reimbursement or 
prior payment, when payment for beneficiary travel is requested for 
travel that includes a special mode of transportation, VA will approve 
payment under this part if:
    (1) The travel is medically required,
    (2) The beneficiary is unable to defray the cost of such 
transportation, and
    (3) VHA approved the travel prior to travel in the special mode of 
transportation or the travel was undertaken in connection with a 
medical emergency.

(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.10  Eligible persons.

    (a) The following listed persons are eligible for beneficiary 
travel payments under this part:
    (1) A veteran who travels to or from a VA facility or VA authorized 
health care facility in connection with treatment or care for a 
service-connected disability (regardless of percent of disability).
    (2) A veteran with a service-connected disability rated at 30 
percent or more who travels to or from a VA facility or VA authorized 
health care facility for examination, treatment, or care for any 
condition.
    (3) A veteran who travels to a VA facility or VA authorized health 
care facility for a scheduled compensation and pension examination.
    (4) A veteran receiving pension under 38 U.S.C. 1521, who travels 
to or from a VA facility or VA authorized health care facility for 
examination, treatment, or care.
    (5) A veteran whose annual income (as determined under 38 U.S.C. 
1503) does not exceed the maximum annual rate of pension that the 
veteran would receive under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 
5312) if the veteran was eligible for pension and who travels to or 
from a VA facility or VA authorized health care facility for 
examination, treatment, or care.
    (6) A veteran who travels to or from a VA facility or VA authorized 
health care facility for examination, treatment, or care, and who is 
unable to defray the expenses of that travel as defined in paragraph 
(c) of this section.
    (7) A member of a veteran's immediate family, a veteran's legal 
guardian, or a person in whose household the veteran certifies an 
intention to live, if such person is traveling for consultation, 
professional counseling, training, or mental health services concerning 
a veteran who is receiving care for a service-connected disability; or 
a member of a veteran's immediate family, if such person is traveling 
for bereavement counseling relating to the death of such veteran in the 
active military, naval, or air service in the line of duty and under 
circumstances not due to the veteran's own misconduct.
    (8) An attendant other than a VA employee, who is accompanying and 
assisting a beneficiary eligible for beneficiary travel payments under 
this section, when such beneficiary is medically determined to require 
the presence of the attendant because of a physical or mental 
condition.
    (9) Beneficiaries of other Federal agencies, incident to medical 
services rendered upon requests of those agencies, subject to 
reimbursement agreement by those agencies.
    (10) Allied beneficiaries as defined by 38 U.S.C. 109 subject to 
reimbursement agreement by the government concerned.
    (b) For purposes of this section, the term ``examination, 
treatment, or care'' means the care services provided under the Medical 
Benefits Package in Sec.  17.38 of this chapter.
    (c) For purposes of this section, a beneficiary shall be considered 
unable to defray the expenses of travel if the beneficiary:
    (1) Has an income for the year (as defined under 38 U.S.C. 1503) 
immediately preceding the application for beneficiary travel that does 
not exceed the maximum annual rate of pension that the beneficiary 
would receive under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 5312) 
if the beneficiary were eligible for pension during that year; or
    (2) Is able to demonstrate that due to circumstances such as loss 
of employment, or incurrence of a disability, his or her income in the 
year of travel will not exceed the maximum annual rate of pension that 
the beneficiary would receive under 38 U.S.C. 1521 (as adjusted under 
38 U.S.C. 5312) if the beneficiary were eligible for pension; or
    (3) Has a service-connected disability rated at least 30 percent; 
or
    (4) Is traveling in connection with treatment of a service-
connected disability.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.20  Application.

    (a) A claimant may apply for beneficiary travel orally or in 
writing but must provide VA the receipt for each expense other than for 
mileage.
    (b) A claimant must apply for payment of beneficiary travel within 
30 calendar days after completing beneficiary travel that does not 
include a special mode of transportation.
    (c) For beneficiary travel that includes a special mode of 
transportation, a claimant must apply for payment of beneficiary travel 
and obtain approval from VA prior to the travel; however, if the travel 
included a special mode of transportation and the claimant without 
prior approval applies for payment of the beneficiary travel within 30 
calendar days after the travel is completed, the application will be 
considered timely submitted if the travel was for emergency treatment.

[[Page 40104]]

    (d) Notwithstanding other provisions of this section, for travel 
that includes meals and/or lodging, a claimant must apply for and 
receive approval prior to obtaining the meals and/or lodging.
    (e) If VA determines that additional information is needed to make 
a determination concerning an application under this part, VA will 
notify the claimant in writing of the deficiency and request additional 
information. If the claimant has not responded to the request within 30 
days, VA may decide the claim prior to the expiration of the 1-year 
submission period required by 38 U.S.C. 5103(b)(1) based on all the 
information contained in the file, including any information it has 
obtained on behalf of the claimant. If VA does so, however, and the 
claimant subsequently provides the information within 1 year of the 
date of the request, VA must readjudicate the claim.
    (f) Notwithstanding other provisions of this section, if a person 
becomes eligible for payment of beneficiary travel after the travel 
takes place, payment may be made if the person applies for travel 
benefits within 30 days of the date when the person became eligible for 
travel benefits.
    (g) The date of an application for beneficiary travel is the 
postmark date, if mailed; or the date of submission if hand delivered, 
provided by electronic means, or provided orally.

(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.21  Where to apply.

    Claimants for beneficiary travel must submit the information 
required in Sec.  70.20 to the Chief of the Business Office or other 
designee at the VA medical facility responsible for the medical care or 
services being provided and for which travel is required.

(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.30  Payment principles.

    (a) Subject to the other provisions of this section and subject to 
the deductibles required under Sec.  70.31, VA will pay the following 
for beneficiary travel by an eligible beneficiary when travel expenses 
are actually incurred:
    (1) The per mile rate established by the Secretary for the period 
of travel for use of privately owned vehicle or the actual cost for use 
of the most economical common carrier (bus, train, taxi, airplane, 
etc.), for travel to and from VA or VA authorized health care subject 
to the following:
    (i) Travel by a privately-owned vehicle for a compensation and 
pension examination that is solely for the convenience of the 
Government (e.g., repeat a laboratory test, redo a poor quality x-ray) 
may have a different per mile rate if deemed appropriate by the 
Secretary.
    (ii) Per mile payment for use of privately-owned vehicle may not 
exceed the cost of such travel by public transportation (even if it is 
for the convenience of the government) unless determined to be 
medically necessary.
    (iii) Payment for a common carrier may not exceed the amount 
allowed for a privately-owned vehicle unless travel by a privately-
owned vehicle is not reasonably accessible or is determined to be 
medically necessary.
    (iv) As required by law, each time the Federal government makes a 
change in mileage rates payable under 5 U.S.C. 5702 and 5704 for 
Federal employee travel by privately-owned vehicle, but not less 
frequently than annually, the Secretary shall conduct an investigation 
of the actual costs of travel, including lodging and subsistence. In 
conducting the investigation, the Secretary shall consult with the 
Administrator of the General Services Administration, the Secretary of 
Transportation, and veterans' service organizations. As part of the 
investigation, the Secretary shall review and consider various factors 
including vehicle depreciation, State and Federal vehicle taxes and the 
costs of gasoline, oil, maintenance, accessories, parts, tires, and 
insurance. However, to the extent that the Administrator of General 
Services has, within a reasonable period of time, conducted an 
investigation of travel costs that included the factors described in 
this paragraph, the Secretary may consider that investigation in lieu 
of conducting a separate investigation with respect to the findings of 
those individual factors. The Secretary is not obligated to accept or 
rely on any conclusions of the Administrator's investigation. Based on 
the investigation required by this subsection, VA shall determine 
whether there is a need to change the mileage rates payable under 
paragraph (a) of this section. If a determination is made that a change 
is warranted the new rate(s) will be published in the notices section 
of the Federal Register. Current rate(s) may be found at http://vaww1.va.gov/cbo/ or by contacting the Beneficiary Travel office at the 
closest VA health care facility.
    (2) The actual cost of ferry fares, bridge tolls, road tolls, and 
tunnel tolls upon presentation of receipts for such expenses.
    (3) The actual cost for meals, lodging, or both, not to exceed 50 
percent of the amount allowed for government employees under 5 U.S.C. 
5702, when VA determines that an overnight stay is required. Factors VA 
may consider in making that determination include, but are not limited 
to the following:
    (i) The distance the veteran must travel.
    (ii) The time of day when VA scheduled the veteran's appointment.
    (iii) The weather conditions or congestion conditions affecting the 
travel.
    (iv) The veteran's medical condition and its impact on the ability 
to travel.
    (4) The actual cost of a special mode of transportation.
    (b) Payments under this section are subject to the following:
    (1) Except as otherwise allowed under this section, payment is 
limited to travel from the beneficiary's residence to the nearest VA 
facility where the care or services could be provided and from such VA 
facility to the beneficiary's residence.
    (2) Payment may be made for travel from the beneficiary's residence 
to the nearest non-VA facility where the care or services could be 
provided and from such facility to the beneficiary's residence if VA 
determines that it is necessary to obtain the care or services at a 
non-VA facility.
    (3) Payment may be made for travel from or to a place where the 
beneficiary is staying (if the beneficiary is not staying at the 
beneficiary's residence) but the payment may not exceed the amount that 
would be payable for travel under paragraphs (b)(1) or (b)(2) of this 
section, as applicable.
    (4) If the beneficiary's residence changed while receiving care or 
services, payment for the return trip will be for travel to the new 
residence, except that payment may not exceed the amount that would be 
allowed from the facility where the care or services could have been 
provided that is nearest to the new residence (for example, if during a 
period of care or services in Baltimore, a beneficiary changed his or 
her address from Baltimore to Detroit, payment for the return trip 
would be limited to that allowed for traveling to the new residence 
from the nearest facility to the new residence in Detroit where the 
care or services could have been provided).
    (5) If the beneficiary is in a terminal condition at a VA facility 
or other facility under VA auspices and travels to a non-VA medical 
facility for the purpose of being nearer to his or her residence, 
payment may be made for travel to the medical facility receiving the 
beneficiary for such purpose.
    (6) Payment may be made for travel from a non-VA health care 
facility where the beneficiary is receiving care or services to the 
nearest VA facility

[[Page 40105]]

where the appropriate care or services could be provided.
    (7) Payment will not be made for return travel for a beneficiary 
receiving an irregular discharge.
    (8) On a case-by-case basis, payment for travel may be paid for any 
distance if it is financially favorable to the government (for example, 
travel could be allowed to a more distant nursing home when admission 
to that nursing home is a prerequisite to qualify for community 
assistance that would more than offset the additional travel payment).
    (c) Payment for travel of an attendant under this section will be 
calculated on the same basis as for the beneficiary.
    (d) For shared travel in a privately-owned vehicle, payments are 
limited to the amount for one beneficiary (for example, if a 
beneficiary and an attendant travel in the same automobile or if two 
beneficiaries travel in the same automobile, the amount for mileage 
will be limited to the amount for one beneficiary).
    (e) Beneficiary travel will not be paid under the following 
circumstances:
    (1) The payment of the travel allowance would be counterproductive 
to the therapy being provided and such determination is recorded in the 
patient's medical records, and
    (2) The chief of the service or a designee reviewed and approved 
the determination by signature in the patient's medical record.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.31  Deductibles.

    (a) VA shall deduct an amount established by the Secretary 
(currently $3 or the total amount of travel if it is less than $3) for 
each one-way trip from the amount otherwise payable under this part for 
such one-way trip, except that:
    (1) VA shall not deduct any amounts in a calendar month after the 
completion of six one-way trips for which deductions were made in such 
calendar month, and
    (2) Whenever the Secretary adjusts the mileage rates as a result of 
the investigation described in Sec.  70.30(a)(1)(iv), the Secretary 
shall, effective on the date such mileage rate change should occur, 
adjust proportionally the deductible amount in effect at the time of 
the adjustment.
    (b) The provisions under this section for making deductions shall 
not apply to:
    (1) Travel that includes travel by a special mode of 
transportation,
    (2) Travel to a VA facility for a scheduled compensation and 
pension examination, and
    (3) Travel by a non-veteran.
    (c) VA may waive the deductible under this section when it would 
cause severe financial hardship. For purposes of this section, a 
beneficiary shall be considered to suffer severe financial hardship if 
the beneficiary:
    (1) Has an income for the year immediately preceding the 
application for beneficiary travel that does not exceed 90 percent of 
the maximum annual rate of pension that would be payable to such 
beneficiary under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 5312) if 
the person were eligible for pension; or
    (2) Is able to demonstrate that due to circumstances such as loss 
of employment, or incurrence of a disability, his or her income in the 
year of travel will not exceed 90 percent of the maximum annual rate of 
pension that would be payable to such beneficiary under 38 U.S.C. 1521 
(as adjusted under 38 U.S.C. 5312) if the beneficiary were eligible for 
pension.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.32  Reimbursement or prior payment.

    (a) Payment will be made on a reimbursement basis after the travel 
has occurred, except that:
    (1) Upon completion of examination, treatment, or care, payment may 
be made before the return travel has occurred, and
    (2) In the case of travel by a person to or from a VA facility by 
special mode of transportation, VA may provide payment for beneficiary 
travel to the provider of the transportation before determining 
eligibility of such person for such payment if VA determines that the 
travel is for emergency treatment and the beneficiary or other person 
made a claim that the beneficiary is eligible for payment for the 
travel.
    (b) Payment under this part will be made to the beneficiary, except 
that VA may make a beneficiary travel payment under this part to a 
person or organization other than the beneficiary upon satisfactory 
evidence that the person or organization actually provided or paid for 
the travel.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.40  Administrative procedures.

    Upon denial of an initial claim for beneficiary travel, VA will 
provide the claimant written notice of the decision and advise the 
claimant of reconsideration and appeal rights. A claimant who disagrees 
with the initial decision denying the claim for beneficiary travel, in 
whole or in part, may obtain reconsideration under Sec.  17.133 of this 
chapter and may file an appeal to the Board of Veterans' Appeals under 
parts 19 and 20 of this chapter. An appeal may be made directly to the 
Board of Veterans' Appeals without requesting reconsideration.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.41  Recovery of payments.

    Payments for beneficiary travel made to persons ineligible for such 
payment are subject to recapture under applicable law, including the 
provisions of Sec. Sec.  1.900 through 1.953 of this chapter.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.42  False statements.

    A person who makes a false statement for the purpose of obtaining 
payments for beneficiary travel may be prosecuted under applicable 
laws, including 18 U.S.C. 1001.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

Sec.  70.50  Reduced fare requests.

    Printed reduced-fare requests for use by eligible beneficiaries and 
their attendants when traveling at their own expense to or from any VA 
facility or VA authorized facility for authorized VA health care are 
available from any VA medical facility. Beneficiaries may use these 
request forms to ask transportation providers, such as bus companies, 
for a reduced fare. Whether to grant a reduced fare is determined by 
the transportation provider.

 (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 
1783, E.O. 11302)

 [FR Doc. E7-14069 Filed 7-20-07; 8:45 am]
BILLING CODE 8320-01-P