[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Proposed Rules]
[Pages 9068-9071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3003]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AM22


Civilian Health and Medical Program of the Department of Veterans 
Affairs (CHAMPVA): Expansion of Benefit Coverage for Prostheses and 
Enuretic (Bed-wetting) Devices; Miscellaneous Provisions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) regulations for the Civilian Health and Medical Program of 
the Department of Veterans Affairs (CHAMPVA) to expand the benefits 
available by covering, in addition to currently-covered prostheses, any 
non-dental prostheses determined medically necessary for treatment of 
certain medical conditions. It also proposes to no longer exclude 
coverage of enuretic (bed-wetting) devices. In addition, this document 
proposes to make changes in delegations of authority, technical 
changes, and nonsubstantive changes for purposes of clarity in VA's 
regulations governing CHAMPVA.

DATES: Comments must be received on or before April 21, 2008.

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 Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026.

[[Page 9069]]

Comments should indicate that they are submitted in response to ``RIN 
2900-AM22--Civilian Health and Medical Program of the Department of 
Veterans Affairs (CHAMPVA)--Expansion of Benefit Coverage for 
Prostheses and Enuretic (Bed-wetting) Devices; Miscellaneous 
Provisions.'' 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) 461-4902 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.

FOR FURTHER INFORMATION CONTACT: Richard M. Trabert, Policy & 
Compliance Division, VA Health Administration Center, P.O. Box 65020, 
Denver, CO 80206-9020; (303) 331-7549. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: This document proposes to amend VA's medical 
regulations in 38 CFR part 17 concerning CHAMPVA. CHAMPVA is a VA 
medical benefits program for certain (1) spouses and children of 
veterans who have a permanent and total service-connected disability 
and (2) surviving spouses and children of veterans who died as a result 
of a service-connected disability or while rated permanently or totally 
disabled from a service-connected disability, or who died in the active 
military, naval, or air service in the line of duty. CHAMPVA is 
authorized at 38 U.S.C. 1781 (formerly 38 U.S.C. 1713). To be eligible 
for CHAMPVA benefits, among other requirements, the spouses, surviving 
spouses, and children may not be otherwise eligible for medical care 
under 10 U.S.C. chapter 55 (authorizing TRICARE, formerly CHAMPUS; 
referred to in this preamble as TRICARE/CHAMPUS). By the terms of 
section 1781(b), VA is required to provide benefits under CHAMPVA in 
the same or similar manner and subject to the same or similar 
limitations as medical care that is furnished to certain dependents and 
survivors of active duty and retired members of the Armed Forces under 
TRICARE/CHAMPUS. Needed medical care is largely provided to CHAMPVA 
beneficiaries through non-VA providers.
    This proposed rule would amend 38 CFR 17.272, ``Benefits 
limitations/exclusions,'' in accordance with the requirements under 38 
U.S.C. 1781(b) to furnish CHAMPVA benefits ``in the same or similar 
manner and with the same or similar limitations'' as medical care under 
TRICARE/CHAMPUS.
    First, we propose to add certain prostheses to the benefits 
available under the CHAMPVA program to be consistent with benefits 
authorized for TRICARE/CHAMPUS in section 702 of Public Law 105-85 
(1999), the National Defense Authorization Act for Fiscal Year 1998. 
That statutory provision amended TRICARE/CHAMPUS coverage to include 
prosthetic devices ``as determined by the Secretary of Defense to be 
necessary because of significant conditions resulting from trauma, 
congenital anomalies, or disease.'' The Department of Defense (DoD) 
amended the TRICARE/CHAMPUS regulations in 32 CFR 199.4 accordingly. 
See 65 FR 58224-25, Sept. 28, 2000 (final rule); 64 FR 45453-45454, 
August 20, 1999 (interim final rule). As discussed in the preambles in 
those rulemaking documents, DoD determined that noses, ears, and 
fingers are examples of additional prostheses that are authorized under 
that statutory amendment for TRICARE/CHAMPUS coverage. See 65 FR 58224; 
64 FR 45453-45454. The regulations promulgated by DoD exclude from 
coverage all dental prostheses, ``except for those specifically 
required in connection with otherwise covered orthodontia directly 
related to the surgical correction of a cleft palate anomaly.'' 32 CFR 
199.4(g)(48).
    Under VA's current regulations for CHAMPVA at 38 CFR 17.272(a)(44), 
coverage for the purchase of prosthetic devices is limited to 
artificial limbs, voice prostheses, eyes, items surgically inserted in 
the body as an integral part of a surgical procedure, and dental 
prostheses that are specifically required in connection with otherwise 
covered orthodontia directly related to the surgical correction of a 
cleft palate anomaly. (These are also subject to the requirements 
generally applicable to CHAMPVA benefits, including being medically 
necessary and appropriate for the treatment of a condition.) We propose 
to amend Sec.  17.272(a)(44) to extend prosthetic coverage to any other 
prostheses (other than dental prostheses) considered medically 
necessary because of significant conditions resulting from trauma, 
congenital anomalies, or disease. The proposed changes to Sec.  
17.272(a)(44) are also intended to clarify that ears, noses, and 
fingers and the prostheses currently referred to in Sec.  
17.272(a)(44)(i) through (iv) are examples of what the newly-listed 
category would include. Consistent with 32 CFR 199.4(g)(48), dental 
prostheses would continue to be excluded except as specifically 
provided in current Sec.  17.272(a)(44)(v).
    As another change authorized under the statutory requirement to 
furnish CHAMPVA benefits in the same or similar manner and with the 
same or similar limitations as medical care under TRICARE/CHAMPUS, we 
propose to amend Sec.  17.272(a)(52) to permit enuretic (bed-wetting) 
devices (alarms) to be furnished to CHAMPVA beneficiaries. This 
proposed change would be consistent with DoD's regulations at 32 CFR 
199.4(g)(58). That paragraph was amended to no longer exclude such 
devices. See 67 FR 18825, Apr. 17, 2002. Currently, enuretic (bed-
wetting) devices and enuretic conditioning programs are excluded from 
CHAMPVA coverage. The proposed rule would remove the exclusion for 
enuretic (bed-wetting) devices now found at Sec.  17.272(a)(52), but 
would, like TRICARE/CHAMPUS, continue to exclude enuretic conditioning 
programs. We believe it is in the public interest to implement in the 
CHAMPVA program this TRICARE/CHAMPUS change. The basis for excluding 
enuretic conditioning programs is to restrict the payment for 
professional guidance on the use of these devices to an authorized 
health care provider, such as the attending physician, a physician 
assistant, or a nurse practitioner.
    This proposed rule would also amend the delegations of authority in 
38 CFR 17.275, ``Claim filing deadline,'' and 38 CFR 17.276, ``Appeal/
review process.'' Currently, Sec.  17.275(b) provides that only the 
``Center Director'' has the authority to grant exceptions to the claim 
filing deadline. This proposed rule would amend Sec.  17.275(b) by 
referring to the Center Director by his or her title, the ``Director, 
Health Administration Center'', and would permit the Director to extend 
that authority to his or her designee. Similarly, Sec.  17.276 
currently provides that, in response to a beneficiary's request for 
review of a decision by a CHAMPVA benefits advisor, only the Center 
Director has the authority to issue a decision that is the final 
decision with respect to benefit coverage and computation of benefits, 
and that affirms, reverses, or modifies the prior decision. This 
proposed rule would amend Sec.  17.276 to permit the Director, Health 
Administration Center, or his or her designee, to issue that final 
decision.
    Finally, the proposed rule would make technical changes and other 
nonsubstantive changes for purposes of clarity in Sec. Sec.  17.270 
through 17.278. These include technical changes to conform with Public 
Law 107-135,

[[Page 9070]]

which redesignated the statutory section authorizing the CHAMPVA 
program as 38 U.S.C. 1781 (formerly 38 U.S.C. 1713).

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities as they are defined in the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. Individuals eligible for 
CHAMPVA benefits are widely dispersed geographically and thus services 
provided to them would not have a significant impact on any small 
entity. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is 
exempt from the initial and final regulatory flexibility analysis 
requirements of sections 603 and 604.

Paperwork Reduction Act of 1995

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

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

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 not to be a significant regulatory action under Executive 
Order 12866.

Catalog of Federal Domestic Assistance

    This proposed rule affects the Civilian Health and Medical Program 
of the Department of Veterans Affairs (CHAMPVA), for which there is no 
Catalog of Federal Domestic Assistance program number.

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 professionals, 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, and Veterans.

    Approved: February 11, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans.
    For the reasons stated above, the Department of Veterans Affairs 
proposes to amend 38 CFR part 17 as follows:

PART 17--MEDICAL

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

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

    2. Amend Sec.  17.270 by:
    a. In paragraph (a), removing ``1713'' and adding, in its place, 
``1781''.
    b. In paragraph (b), removing ``this section'' and adding, in its 
place, ``Sec. Sec.  17.270 through 17.278'', removing `` ``fiscal'' 
year refers to October 1'', and adding, in its place, `` ``fiscal 
year'' refers to October 1''.
    c. Revising the authority citation.
    The revision reads as follows:


Sec.  17.270  General provisions.

* * * * *

(Authority: 38 U.S.C. 501, 1781)


    3. Amend Sec.  17.271 by revising the authority citations after 
paragraph (a) and at the end of the section to read as follows:


Sec.  17.271  Eligibility.

    (a) * * *

(Authority: 38 U.S.C. 501, 1781)


* * * * *

(Authority: 38 U.S.C. 501, 1781)


    4. Amend Sec.  17.272 by:
    a. Redesignating paragraphs (a)(44)(i) through (a)(44)(iv) as 
paragraphs (a)(44)(ii)(A) through (D), respectively.
    b. Redesignating paragraph (a)(44)(v) as new paragraph (a)(44)(i).
    c. Adding paragraphs (a)(44)(ii) introductory text and 
(a)(44)(ii)(E).
    d. Revising paragraph (a)(52) and the authority citation.
    The additions and revisions read as follows:


Sec.  17.272  Benefits limitations/exclusions.

    (a) * * *
    (44) * * *
    (ii) Any prostheses, other than dental prostheses, determined to be 
medically necessary because of significant conditions resulting from 
trauma, congenital anomalies, or disease, including, but not limited 
to:
* * * * *
    (E) Ears, noses, and fingers.
* * * * *
    (52) Enuretic (bed-wetting) conditioning programs.
* * * * *

(Authority: 38 U.S.C. 501, 1781)


    5. Amend Sec.  17.273 by revising the authority citation to read as 
follows:


Sec.  17.273  Preauthorization.

* * * * *

(Authority: 38 U.S.C. 501, 1781)


    6. Amend Sec.  17.274 by revising the authority citation to read as 
follows:


Sec.  17.274  Cost sharing.

* * * * *

(Authority: 38 U.S.C. 501, 1781)


    7. Amend Sec.  17.275 by:
    a. In paragraph (b), removing ``Center Director'' and adding, in 
its place, ``Director, Health Administration Center, or his or her 
designee''; and removing ``paragraph (a) if'' and adding, in its place, 
``paragraph (a) of this section if''.
    b. Adding an authority citation at the end of the section.
    The addition reads as follows:


Sec.  17.275  Claim filing deadline.

* * * * *

[[Page 9071]]


(Authority: 38 U.S.C. 501, 1781)


    8. Amend Sec.  17.276 by:
    a. Removing ``Center Director'' and ``Director'' each time they 
appear and adding, in their place, ``Director, Health Administration 
Center, or his or her designee''.
    b. Revising the authority citation.
    c. In the Note, removing ``20 CFR'' and adding, in its place ``38 
CFR''.
    The revision reads as follows:


Sec.  17.276  Appeal/review process.

* * * * *

(Authority: 38 U.S.C. 501, 1781)

* * * * *
    9. Amend Sec.  17.277 by adding an authority citation to read as 
follows:


Sec.  17.277  Third-party liability/medical care cost recovery.

* * * * *

(Authority: 28 U.S.C. 2651; 38 U.S.C. 501, 1781)


    10. Amend Sec.  17.278 by adding an authority citation to read as 
follows:


Sec.  17.278  Confidentiality of records.

* * * * *

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 1781, 5701, 7332)


[FR Doc. E8-3003 Filed 2-15-08; 8:45 am]
BILLING CODE 8320-01-P