[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Proposed Rules]
[Pages 20579-20581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8098]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AM81


Elimination of Co-Payment for Weight Management Counseling

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the Department of Veterans 
Affairs (VA) medical regulations concerning co-payments for inpatient 
hospital care and outpatient medical care. More specifically, it would 
designate weight management counseling (individual and group sessions) 
as a service that is not subject to co-payment requirements. The 
intended effect of this proposed rule is to increase participation in 
weight management counseling by removing the co-payment barrier. This 
proposed rule would also amend the medical regulations by making 
nonsubstantive changes to correct references to statutory provisions.
    VA is also using direct final rulemaking for this action because we 
expect that there will be no significant adverse comments on the rule. 
(See RIN 2900-AM59). If no significant adverse comments are received, 
VA will confirm the effective date of the direct final rule and 
withdraw this proposed rule. If significant adverse comments are 
received, VA will withdraw the direct final rule and proceed with 
rulemaking on this proposed rule. A subsequent Federal Register 
document will be published to announce VA's action.

DATES: Written comments must be received on or before May 16, 2008.

ADDRESSES: Written comments may be submitted through 
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. Comments should indicate that they are submitted in response 
to ``RIN 2900-AM81--Elimination of Co-payment for Weight Management 
Counseling.'' 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 www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Tony Guagliardo, Director, Business 
Policy, Chief Business Office (16), Veterans Health Administration, 810 
Vermont Avenue, NW., Washington, DC 20420, (202) 254-0384 (this is not 
a toll-free number).

SUPPLEMENTARY INFORMATION: This document proposes to amend VA's 
``Medical'' regulations, which are set forth at 38 CFR part 17 
(referred to below as the regulations), to eliminate co-payments for 
weight management counseling (individual and group sessions).
    A large number of veterans using VA medical facilities are 
overweight (body mass index of 25-29.9) or obese (body mass index of 30 
or higher). Among male veterans using VA medical facilities in 2000, 40 
percent were classified as overweight and 33 percent were classified as 
obese. Among female veterans using VA medical facilities in 2000, 31 
percent were classified as overweight and 37 percent were classified as 
obese.
    Poor diet and physical inactivity are rapidly overtaking smoking as 
the leading preventable cause of morbidity and mortality in the United 
States. Further, most of the morbidity and mortality related to poor 
diet and physical inactivity can be attributed to excess weight. 
However, even modest weight loss and increased physical activity can 
result in improved health outcomes, especially for individuals with 
diabetes or likely to get diabetes, a highly prevalent condition among 
veterans seeking healthcare at VA facilities. Being overweight or obese 
are also conditions clearly associated with coronary heart disease 
(CHD), CHD risks (hypertension, hyperlipidemia), certain cancers, 
gallbladder disease, obstructive sleep apnea, osteoarthritis, and all-
cause mortality. Consequently, the health care costs for obesity-
associated conditions throughout the United States are substantial with 
estimates of the total annual expenditures in the United States 
consisting of as much as $107.2 billion in 2006 dollars.
    To combat the effects of being overweight or obese, VA has 
established ``Managing Overweight/Obesity for Veterans Everywhere!'' 
(MOVE!). This is a comprehensive, evidence-based weight management 
program that consists of both individual and group counseling.
    Currently, VA regulations require many veterans to agree to make 
co-payments as a condition for participation in the MOVE! program. 
However, field providers report that co-payments are a significant 
barrier to participation in the counseling program. The co-payment 
requirement is estimated to generate approximately $1,001,294 annually. 
However, we believe that not imposing co-payments would be clearly cost 
effective based on the conclusion that the costs of healthcare for 
overweight and obese individuals become significantly lower as they 
lose weight. Accordingly, we propose to eliminate co-payments for 
weight management counseling.
    The MOVE! program is based primarily upon the National Institutes 
of Health/National Heart, Lung, and Blood Institute's Clinical 
Guidelines for the Identification, Evaluation, and Treatment of 
Overweight and Obesity and is consistent with the weight management 
recommendations of the U.S. Preventive Services Task Force, supported 
by the Agency for Healthcare Research and Quality in the Department of 
Health and Human Services. An Executive Council consisting of federal 
weight management experts and

[[Page 20580]]

external expert advisors reviewed MOVE! and declared the MOVE! program 
to be consistent with current medical guidance and recommendations for 
weight management.
    MOVE! became widely implemented across VA facilities as a standard 
clinical program over the past several years. The MOVE! program 
provides much of its care through frequent group sessions, a very 
effective and efficient format of weight management care. Effective 
treatment typically results in a 5-10 percent weight loss, which is 
associated with improvement in weight-related conditions such as 
hypertension, dyslipidemia, and diabetes. VA expects that elimination 
of the copayment associated with weight management treatment visits 
will facilitate continued patient engagement in treatment, resulting in 
better clinical outcomes. Over the long run, the loss in revenue from 
elimination of the copayment is expected to be offset by lower health 
care costs for weight-related conditions.
    Limited research exists to fully understand the exact impact of a 
policy change such as this. While VA expects this change to be cost 
effective in the long run, VA will monitor results to assist in future 
decision-making concerning this and similar programs. VA will work with 
its research community to retrospectively evaluate the impact of this 
policy change.
    This document proposes to amend 38 CFR 17.47(e)(2) by making 
nonsubstantive changes to correct references to statutory provisions. 
Section 17.47(e)(2) currently states that if a veteran provided 
inaccurate information on an application and is incorrectly deemed 
eligible for care under 38 U.S.C. 1710(a)(1) rather than section 
1710(a)(2), VA shall retroactively bill the veteran for the applicable 
copayment. When Sec.  17.47(e)(2) was initially promulgated, section 
1710(a)(2) pertained to veterans who were not described in section 
1710(a)(1) and who were therefore subject to the copayment requirements 
then set forth in section 1710(f). In 1996, section 1710(a) was amended 
by section 101(a) of Public Law 104-262. Under the amendments, veterans 
previously described in section 1710(a)(1) are now described in section 
1710(a)(1) and (a)(2). Veterans previously described in section 
1710(a)(2) are now described in section 1710(a)(3). The amendment to 
Sec.  17.47(e)(2) corrects the references to these statutory 
provisions.

Administrative Procedure Act

    Concurrent with this proposed rule, we also are publishing a 
separate, substantively identical direct final rule in the ``Rules and 
Regulations'' section of this Federal Register. The simultaneous 
publication of these documents will speed notice and comment rulemaking 
under section 553 of the Administrative Procedure Act should we have to 
withdraw the direct final rule due to receipt of significant adverse 
comments.
    For purposes of the direct final rulemaking, a significant adverse 
comment is one that explains why the rule would be inappropriate, 
including challenges to the rule's underlying premise or approach, or 
why it would be ineffective or unacceptable without change. If 
significant adverse comments are received, VA will publish a notice of 
receipt of significant adverse comments in the Federal Register 
withdrawing the direct final rule.
    Under direct final rule procedures, unless significant adverse 
comments are received within the comment period, the regulation will 
become effective on the date specified above. After the close of the 
comment period, VA will publish a document in the Federal Register 
indicating that no adverse comments were received and confirming the 
date on which the final rule will become effective. VA will also 
publish a separate notice in the Federal Register withdrawing this 
proposed rule.
    In the event the direct final rule is withdrawn because of 
significant adverse comments, VA can proceed with the rulemaking by 
addressing the comments received and publishing a final rule. The 
comment period for the proposed rule runs concurrently with that of the 
direct final rule. Any comments received under the direct final rule 
will be treated as comments regarding the proposed rule. VA will 
consider such comments in developing a subsequent final rule. Likewise, 
significant adverse comments submitted regarding the proposed rule will 
be considered as comments regarding the direct final rule.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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. The adoption of the proposed rule 
would not directly affect any small entities. Only individuals could be 
directly affected. 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.

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 principles set forth in the Executive Order.

Paperwork Reduction Act

    This document does not contain any provisions constituting a 
collection of information under the Paperwork Reduction Act (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 expenditure by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This rule would have no such effect on 
State, local, or tribal governments, or on the private sector.

[[Page 20581]]

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.009, Veterans Medical 
Care Benefits; and 64.012, Veterans Prescription Service.

 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: December 26, 2007.
James B. Peake,
Secretary of Veterans Affairs.

    Editorial Note: This document was received at the Office of the 
Federal Register on April 11, 2008.

    For the reasons set out in the preamble, VA 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, unless otherwise noted.

    2. Amend Sec.  17.108 by redesignating paragraphs (e)(12) and 
(e)(13) as paragraphs (e)(13) and (e)(14), respectively; and by adding 
a new paragraph (e)(12) to read as follows:


Sec.  17.108  Co-payments for inpatient hospital care and outpatient 
medical care.

* * * * *
    (e) * * *
    (12) Weight management counseling (individual and group);
* * * * *


Sec.  17.47  [Amended]

    3. In Sec.  17.47(e)(2), remove ``under 38 U.S.C. 1710(a)(1) rather 
than Sec.  1710(a)(2)'' and add, in its place, ``under 38 U.S.C. 
1710(a)(1) or (a)(2) rather than 38 U.S.C. 1710(a)(3)''.

[FR Doc. E8-8098 Filed 4-15-08; 8:45 am]
BILLING CODE 8320-01-P