[Federal Register Volume 74, Number 166 (Friday, August 28, 2009)]
[Rules and Regulations]
[Pages 44290-44291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20792]



[[Page 44290]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AL68


Medication Prescribed by Non-VA Physicians

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends and adopts an interim final rule that 
governs the provision of medications to veterans when medication is 
prescribed by physicians who are not employees of nor are they 
providing care under contract with the Department of Veterans Affairs 
(VA). In a document published in the Federal Register on July 25, 2003, 
VA issued an interim final rule establishing a temporary program while 
also maintaining the program that it had in place before the interim 
final rule. Because the need cited in the interim final rule has abated 
and because the provisions added by the interim final rule were self-
limiting in time and scope, we are removing these provisions which 
established the now obsolete temporary program.

DATES: Effective Date: August 28, 2009.

FOR FURTHER INFORMATION CONTACT: Brian McCarthy, Office of Patient Care 
Services, Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Ave., NW., Washington, DC 20420, 202-461-6759. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on July 25, 2003 (68 FR 43927), VA issued an interim final 
rule that amended 38 CFR 17.96, a regulation allowing VA to fill 
certain prescriptions ordered by non-VA physicians.
    When the interim final rule was published, VA was experiencing 
increases in enrollment and demand for health care services. The 
increased demand was caused, at least in part, by veterans enrolling in 
the VA health care system to obtain pharmacy benefits at no cost or at 
a reasonable cost. Consistent with the primary purpose of VHA, which is 
to provide integrated comprehensive health care for veterans, and not 
simply to act as a conduit for providing prescription medications, VA 
usually provides only medications prescribed by VA physicians or VA 
contractors retained for that purpose. When a veteran first enrolls in 
the VA health care system and requests an appointment for care, VA 
schedules an initial appointment with a primary care physician. Among 
other things, during that first appointment the physician generally 
learns from the veteran what medication the veteran is taking, if any, 
assesses the need for medication, and writes prescriptions for any 
needed medication.
    Due to the increased demand for health care services, VA was unable 
to provide some initial primary care visits in a timely manner. In 
certain locations, veterans were placed on a wait list for an initial 
primary care visit. Many of those veterans had existing prescriptions, 
written by non-VA physicians, that VA primary care physicians could 
confirm and renew when the veterans were able to have initial primary 
care visits. The interim final rule, in paragraphs (a) through (h), set 
forth rules that established a temporary program to fill prescriptions 
ordered by non-VA physicians prior to the veteran's initial primary 
care visit. The temporary program was limited to veterans who were 
enrolled in the VA health care system prior to July 25, 2003 and who 
requested an initial primary care appointment prior to July 25, 2003 
with the next available appointment date more than 30 days from the 
date of the request. By 2004, VA had virtually eliminated the primary 
care wait list so there was no longer a need for the temporary program. 
In addition, no veterans remain eligible for the temporary program in 
any event.
    Paragraph (i) of the interim final rule restated verbatim what had 
been Sec.  17.96 before the publication of the interim final rule. 
These original and continuing provisions apply to the filling of 
prescriptions by non-VA physicians for veterans receiving increased 
compensation or pension, without regard to whether the veteran has had 
an initial primary care visit.
    We received one comment during the interim final rule's comment 
period, which ended on September 8, 2003. The commenter, the National 
Association of Chain Drug Stores, stressed the importance of pharmacy 
medication reviews as well as the need to ensure complete and accurate 
information is obtained regarding a patient's prescription and medical 
history. VA shares this view and has policies and procedures in place 
to coordinate care and ensure patient safety. It is unnecessary to 
further amend the regulation to reflect existing policies.
    This final rule removes paragraphs (a) through (h) of the interim 
final rule, thus returning the law to the state that it was in before 
the interim final rule was promulgated. We are also making non-
substantive changes to restore the original organization of Sec.  
17.96.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553, we have found for this rule that notice 
and public procedure are impracticable, unnecessary, and contrary to 
the public interest. Because this rule merely removes provisions 
rendered obsolete by their own terms and continues provisions in effect 
prior to the promulgation of the interim final rule, this rulemaking is 
exempt from the prior notice-and-comment and delayed-effective-date 
requirements of 5 U.S.C. 553.

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 an 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 one year. This final rule will 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 interfere with an 
action planned or taken 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. VA has 
examined the economic, interagency, budgetary, legal, and policy 
implications of this final rule and has concluded that it does not 
constitute a significant regulatory action under the Executive Order.

[[Page 44291]]

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
    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 current 
valid OMB control number. The interim final rule contained collections 
of information which were approved by OMB under the following OMB 
control number: 2900-0646 (Medication Prescribed by Non-VA Physicians). 
VHA allowed OMB control number 2900-0646 to expire in August 2006 
because the temporary program had been discontinued.

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this 
regulatory amendment will not have a significant economic impact on a 
substantial number of small entities as they are defined in the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule would not affect 
any small entities. Only individuals could be directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from 
the initial and final regulatory flexibility analyses requirements of 
sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are as follows: 64.005, Grants to States for 
Construction of State Home Facilities; 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans 
Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 
64.015, Veterans State Nursing Home Care; 64.016, Veterans State 
Hospital Care; 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 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: August 7, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

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For the reasons set out in the preamble, VA amends 38 CFR part 17 as 
follows:

PART 17--MEDICAL

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

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


Sec.  17.96  [Amended]

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2. Amend Sec.  17.96 by:
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a. Removing paragraphs (a) through (h);
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b. Redesignating paragraphs (i) introductory text, (i)(1), (i)(1)(i), 
(i)(1)(ii) and (i)(2) as the introductory text to the section and 
paragraphs (a) introductory text, (a)(1), (a)(2), and (b) respectively; 
and
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c. In newly designated introductory text to the section, removing the 
heading ``Medications for veterans receiving increased compensation or 
pension.''

[FR Doc. E9-20792 Filed 8-27-09; 8:45 am]
BILLING CODE 8320-01-P