[Federal Register Volume 75, Number 112 (Friday, June 11, 2010)]
[Proposed Rules]
[Pages 33216-33219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14110]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN49


Payment or Reimbursement for Emergency Treatment Furnished by 
Non-VA Providers in Non-VA Facilities to Certain Veterans With Service-
Connected or Nonservice-Connected Disabilities

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its regulations concerning emergency hospital care and medical services 
provided to eligible veterans for service-connected and nonservice-
connected conditions at non-VA facilities as a result of the amendments 
made by section 402 of the Veterans' Mental Health and Other Care 
Improvements Act of 2008. These amendments would require VA payment for 
emergency treatment of eligible veterans at non-VA facilities and 
expand the circumstances under which payment for such treatment is 
authorized. In addition, these amendments would make nonsubstantive 
technical changes such as correcting grammatical errors and updating 
obsolete citations.

DATES: Comments must be received by VA on or before August 10, 2010.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), 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-AN49-Payment or Reimbursement for Emergency Treatment 
Furnished by Non-VA Providers in Non-VA facilities to Certain Veterans 
with Service-connected or Nonservice-connected Disabilities.'' 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: Joseph Duran, Policy Specialist, VHA 
CBO Fee Program Office, VHA Chief Business Office, Department of 
Veterans Affairs, P.O. Box 469066, Denver, CO 80246. Telephone (303) 
398-5191. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Sections 1725 and 1728 of title 38, United 
States Code, authorize the Secretary of Veterans Affairs to reimburse 
eligible veterans for costs related to non-VA emergency treatment 
furnished at non-VA facilities, or to pay providers directly for such 
costs. Specifically, section 1725 authorizes reimbursement for 
emergency treatment for eligible veterans with nonservice-connected 
conditions. In contrast, section 1728 authorizes reimbursement for 
emergency treatment for eligible veterans with service-connected 
conditions. These statutory provisions are implemented at 38 CFR 
17.1000 through 17.1008 for nonservice-connected conditions, and at 38 
CFR 17.120 and 17.121 for service-connected conditions. Sometimes a 
veteran will require continued, non-emergent treatment after the 
veteran's medical condition is stabilized. However, until recently VA 
was not authorized to reimburse or pay for treatment provided after 
``the veteran can be transferred safely to a [VA] facility or other 
Federal facility.'' 38 U.S.C. 1725(f)(1)(C) (2007). Thus, if no such 
facility could immediately accept the transfer, VA was unable to 
provide payment to the veteran or medical provider for services 
rendered beyond the point the veteran was determined to be stable.
    On October 10, 2008, the Veterans' Mental Health and Other Care 
Improvements Act of 2008, Public Law 110-387, was enacted. Section 402 
of Public Law 110-387 amended the definition of ``emergency treatment'' 
in section1725(f)(1), extending VA's payment authority until ``such 
time as the veteran can be transferred safely to a [VA] facility or 
other Federal facility and such facility is capable of accepting such 
transfer,'' or until such transfer was accepted, so long as the non-VA 
facility ``made and documented reasonable attempts to transfer the 
veteran to a [VA] facility or other Federal facility.'' Section 
402(a)(1) amended section 1725(a)(1) by striking the term ``may 
reimburse'' and inserting ``shall reimburse'' in its place. This change 
would require VA to reimburse the covered costs for emergency care 
received at non-VA facilities for eligible veterans, rather than at the 
discretion of the Secretary.
    Section 402(b) of Public Law 110-387 amended 38 U.S.C. 1728(a). 
First,

[[Page 33217]]

section 402(b)(1) authorized VA to reimburse or pay for ``customary and 
usual charges of emergency treatment'' when a veteran makes payment 
directly to the provider of non-VA emergency care from sources other 
than VA, whereas the statute had previously authorized reimbursement 
for ``the reasonable value of such care or services.'' This amendment 
relates to the amount of payment and will be the subject of another 
rulemaking. Second, section 402(b)(3) made the definition of 
``emergency treatment'' in section 1725(f)(1) applicable to section 
1728. As described above, the definition of emergency treatment now 
includes care or services furnished until ``such time as the veteran 
can be transferred safely to a [VA] facility or other Federal facility 
and such facility is capable of accepting such transfer,'' or until 
such transfer was accepted, so long as the non-VA facility ``made and 
documented reasonable attempts to transfer the veteran to a [VA] 
facility or other Federal facility.''
    This proposed rule would amend the following VA regulations to 
comply with the amendments made to 38 U.S.C. 1725 and 1728, and would 
make technical changes such as correcting grammatical errors and 
updating obsolete regulatory citations: 38 CFR 17.120, 17.121, 17.1002, 
17.1005, 17.1006, and 17.1008.
    We propose to amend 38 CFR 17.120 by renaming it, ``Payment or 
reimbursement for emergency treatment furnished by non-VA providers to 
certain veterans with service-connected disabilities.'' This new 
heading would clarify that this section covers only eligible veterans 
who have service-connected disabilities. This is a nonsubstantive 
change made only to improve the clarity of our regulations. We also 
propose to amend the introductory text of Sec.  17.120 by striking 
``may be paid'' and replacing it with ``will be paid.'' This amendment 
reflects the amendment made to 38 U.S.C. 1728(a) by section 402(b)(1), 
requiring VA to reimburse the covered costs. In addition, we propose to 
revise Sec.  17.120(a) by striking the terms ``care'' and ``medical 
services'' and the phrase ``care or services'' in the places they 
occur, and replacing them with the term ``emergency treatment.'' This 
amendment would reflect the change made by section 402(b)(1), which 
replaced the term ``hospital care or medical services'' in section 
1728(a) with the term ``emergency treatment.''
    We propose to revise Sec.  17.120(b) to replace the former standard 
for determining the existence of a medical emergency with the ``prudent 
layperson'' standard. Section 402(b)(3) added a new paragraph (c) to 
section 1728, which states that the term ``emergency treatment,'' for 
the purposes of section 1728, ``has the meaning given such term in [38 
U.S.C.] 1725(f)(1).'' Under section 1725(f)(1)(B), emergency treatment 
means medical care furnished ``in a medical emergency of such nature 
that a prudent layperson reasonably expects that delay in seeking 
immediate medical attention would be hazardous to life or health.'' In 
addition, we propose to add clarifying language regarding the ``prudent 
layperson standard'' derived from current 38 CFR 17.1002(b), the 
regulation that implements section 1725(f)(1), which, again, is now the 
statutory authority for the definition of ``emergency treatment'' for 
both nonservice-connected and service-connected eligible veterans.
    We also propose several amendments to 38 CFR 17.121 in order to 
implement section 402 and reorganize and clarify existing provisions. 
Our proposed substantive changes to Sec.  17.121 are described below.
    We propose to strike the phrase ``emergency hospital care and 
medical services'' in all places it occurs in Sec.  17.121 and replace 
it with the term ``emergency treatment,'' for consistency with the 
defined term in section 1725(f)(1). We also propose to amend Sec.  
17.121 to include the provisions in section 402(a)(2) authorizing 
reimbursement of non-emergent treatment in certain circumstances. This 
revision would authorize VA to pay or reimburse for the costs of 
continued, non-emergent treatment furnished to eligible veterans beyond 
the point of stabilization if both ``the non-VA facility notified VA at 
the time that the veteran could be safely transferred'' but the 
transfer was not accepted and ``the non-VA facility made and documented 
reasonable attempts to transfer the veteran to a VA facility (or other 
Federal facility with which VA has an agreement to furnish health care 
services for veterans).''
    Proposed Sec.  17.121(a) would establish the clinical decision 
maker as the designated VA clinician at the VA facility for purposes of 
payments or reimbursement of costs under the proposed rule. Although 
not required by Public Law 110-387, this change adopts similar 
customary practice utilized in the health care industry. In the health 
care industry, it is customary practice to utilize the services of 
health care professionals, such as nurses, for purposes of clinical 
review. For this reason, establishing the clinical decision maker as a 
``designated VA clinician'' would align VA with customary health care 
industry practice (see Utilization Review Accreditation Commission) as 
well as promote greater efficiency in the use of VA physician services.
    Proposed Sec.  17.121(b)(2) would define a reasonable attempt to 
mean contact with the local VA facility's transfer coordinator, 
administrative officer of the day, or designated staff in the facility 
responsible for accepting transfer of patients, and would require 
documentation of such contact in the veteran's progress/physicians' 
notes, discharge summary, or other applicable medical record for that 
episode of care. It is VA's expectation that documentation within the 
applicable medical record represents standard business practice 
throughout the health care industry. Additionally, by regulating the 
contact and documentation requirements in this way, potentially 
eligible veterans would be appropriately afforded ample opportunity to 
qualify for this expanded benefit.
    Based on the nature of the amendments made by section 402, we 
interpret Congress's intent to be that payment for continued non-
emergent non-VA care be limited only to those circumstances where a VA 
or Federal facility with which VA has an agreement to provide care are 
unavailable to provide treatment. As such, we would clarify Sec.  
17.121(c) to state that in the event that a stabilized veteran refuses 
transfer to an available VA or Federal facility with which VA has an 
agreement to provide care, we would limit VA payment for an otherwise 
eligible veteran to the point of stability as determined by a VA 
clinician.
    Finally, we propose to amend the authority citation for Sec.  
17.121 to be consistent with the authority citation for Sec.  17.120.
    With respect to reimbursement for eligible veterans with 
nonservice-connected conditions, the introductory text of 38 CFR 
17.1002 would be amended by striking ``may'' in the first paragraph and 
replacing it with ``will.'' This amendment would reflect the amendment 
made to section 1725(a)(1) by section 402(a)(1), requiring VA to 
reimburse the covered costs. Section 17.1002(d) would be removed and 
paragraphs (e) through (i) would be redesignated as paragraphs (d) 
through (h).
    Proposed paragraph (c) of Sec.  17.1005 would implement the 
provisions of section 402(b)(3), allowing for reimbursement of non-
emergent treatment in certain circumstances. In addition, proposed 
paragraph (c) includes nonsubstantive language changes for clarity 
purposes. Based on

[[Page 33218]]

the nature of the amendments made by section 402, we interpret 
Congress's intent to be that payment for continued non-emergent non-VA 
care be limited only to those circumstances where a VA or Federal 
facility with which VA has an agreement to provide care are unavailable 
to provide treatment. As such, proposed paragraph (d) of Sec.  17.1005 
would be inserted after the newly added paragraph (c) and would limit 
VA payment for non-VA emergency treatment when a stabilized veteran who 
is in need of continued non-emergent treatment refuses transfer to a VA 
or other Federal facility with which VA has an agreement. When a 
stabilized veteran refuses transfer to an available VA or other Federal 
facility with which VA has an agreement to furnish health care services 
for veterans, VA authorization for payment would be limited to the 
point of stability.
    We propose to amend Sec.  17.1006 to update clinical decision maker 
terminology consistent with the proposed amendment to Sec.  17.121(a) 
described above. Currently listed as ``the Fee Service Review Physician 
or equivalent officer,'' we would change this term to ``the designated 
VA clinician.''
    Finally, we propose to amend Sec.  17.1008 to add, after 
``emergency treatment'' and before ``shall,'' the following: ``and any 
non-emergent hospital care that is authorized under Sec.  17.1005(c) of 
this part.'' This statement would update Sec.  17.1008 to comply with 
the new provisions added by section 402.

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

Paperwork Reduction Act

    This action contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

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.

Regulatory Flexibility Act

    The Secretary 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 et seq. This proposed rule will not cause a significant 
economic impact on health care providers, suppliers, or entities since 
only a small portion of the business of such entities concerns VA 
beneficiaries. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 
amendment is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

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; 64.010, Veterans Nursing Home Care; and 64.011, Veterans 
Dental Care.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, approved this document on February 3, 2010, 
for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Grant programs--Veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

    Approved: June 8, 2010.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel.

    For the reasons set forth 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, and as noted in specific 
sections.

    2. Amend Sec.  17.120 by:
    a. Revising the section heading.
    b. In the introductory text, removing ``may be paid'' and adding, 
in its place, ``will be paid'', removing ``care'' and adding, in its 
place, ``emergency treatment'', and removing ``medical services'' and 
adding, in its place, ``emergency treatment''.
    c. Revising paragraph (a) introductory text.
    d. In paragraph (a)(3), removing ``United State'' and adding, in 
its place, ``United States'' and adding the word ``or'' at the end of 
paragraph (a)(3).
    e. In paragraph (a)(4), removing ``Sec.  17.48(j); and'' and 
adding, in its place,'' Sec.  17.47(i);''.
    f. Revising paragraph (b).
    The revisions read as follows:


Sec.  17.120  Payment or reimbursement for emergency treatment 
furnished by non-VA providers to certain veterans with service-
connected disabilities.

* * * * *

[[Page 33219]]

    (a) For veterans with service connected disabilities. Emergency 
treatment not previously authorized was rendered to a veteran in need 
of such emergency treatment:
* * * * *
    (b) In a medical emergency. Emergency treatment, not previously 
authorized, including ambulance services, was rendered in a medical 
emergency of such 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 is met by 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); and
* * * * *
    3. Section 17.121 is revised to read as follows:


Sec.  17.121  Limitations on payment or reimbursement of the costs of 
emergency treatment not previously authorized.

    (a) Emergency Treatment. Except as provided in paragraph (b) of 
this section, VA will not approve claims for payment or reimbursement 
of the costs of emergency treatment not previously authorized for any 
period beyond the date on which the medical emergency ended. For the 
purpose of payment or reimbursement of the expense of emergency 
treatment not previously authorized, VA considers that an emergency 
ends when the designated VA clinician at the VA facility has determined 
that, based on sound medical judgment, a veteran:
    (1) Who received emergency treatment could have been transferred 
from the non-VA facility to a VA medical center for continuation of 
treatment for the disability, or
    (2) Who received emergency treatment could have reported to a VA 
medical center for continuation of treatment for the disability.
    (b) Continued non-emergent treatment. Claims for payment or 
reimbursement of the costs of emergency treatment not previously 
authorized may only be made for continued, non-emergent treatment, if:
    (1) The non-VA facility notified VA at the time the veteran could 
be safely transferred to a VA facility (or other Federal facility with 
which VA has an agreement to furnish health care services for 
veterans), and the transfer of the veteran was not accepted; and
    (2) The non-VA facility made and documented reasonable attempts to 
request transfer of the veteran to a VA facility (or to another Federal 
facility with which VA has an agreement to furnish health care services 
for veterans), which means that the non-VA facility contacted either 
the VA Transfer Coordinator, Administrative Officer of the Day, or 
designated staff responsible for accepting transfer of patients, at a 
local VA (or other Federal facility) and documented such contact in the 
veteran's progress/physicians' notes, discharge summary, or other 
applicable medical record.
    (c) Refusal of transfer. If a stabilized veteran who requires 
continued non-emergent treatment refuses to be transferred to an 
available VA facility (or other Federal facility with which VA has an 
agreement to furnish health care services for veterans), VA will make 
payment or reimbursement only for the expenses related to the initial 
evaluation and the emergency treatment furnished to the veteran up to 
the point of stabilization, as set forth in paragraph (a) of this 
section.

(Authority: 38 U.S.C. 1724, 1728, 7304)

    4. Amend Sec.  17.1002 by:
    a. Revising the introductory text.
    b. Removing paragraph (d).
    c. Redesignating paragraphs (e) through (i) as new paragraphs (d) 
through (h) respectively.
    The revision reads as follows:


Sec.  17.1002  Substantive conditions for payment or reimbursement.

    Payment or reimbursement under 38 U.S.C. 1725 for emergency 
treatment will be made only if all of the following conditions are met:
* * * * *
    5. In Sec.  17.1005, revise paragraph (b) and add paragraphs (c) 
and (d) as follows:


Sec.  17.1005  Payment limitations.

* * * * *
    (b) Except as provided in paragraph (c) of this section, VA will 
not approve claims for payment or reimbursement of the costs of 
emergency treatment not previously authorized for any period beyond the 
date on which the medical emergency ended. For the purpose of payment 
or reimbursement of the expense of emergency treatment not previously 
authorized, VA considers that an emergency ends when the designated VA 
clinician at the VA facility has determined that, based on sound 
medical judgment, a veteran:
    (1) Who received emergency treatment could have been transferred 
from the non-VA facility to a VA medical center for continuation of 
treatment for the disability, or
    (2) Who received emergency treatment could have reported to a VA 
medical center for continuation of treatment for the disability.
    (c) Claims for payment or reimbursement of the costs of emergency 
treatment not previously authorized may only be made for continued, 
non-emergent treatment, if:
    (1) The non-VA facility notified VA at the time the veteran could 
be safely transferred to a VA facility (or other Federal facility with 
which VA has an agreement to furnish health care services for veterans) 
and the transfer of the veteran was not accepted, and
    (2) The non-VA facility made and documented reasonable attempts to 
request transfer of the veteran to VA (or to another Federal facility 
with which VA has an agreement to furnish health care services for 
veterans), which means that the non-VA facility contacted either the VA 
Transfer Coordinator, Administrative Officer of the Day, or designated 
staff responsible for accepting transfer of patients at a local VA (or 
other Federal facility) and documented such contact in the veteran's 
progress/physicians' notes, discharge summary, or other applicable 
medical record.
    (d) If a stabilized veteran who requires continued non-emergent 
treatment refuses to be transferred to an available VA facility (or 
other Federal facility with which VA has an agreement to furnish health 
care services for veterans), VA will make payment or reimbursement only 
for the expenses related to the initial evaluation and the emergency 
treatment furnished to the veteran up to the point of stabilization as 
set forth in paragraph (a) of this section.
* * * * *


Sec.  17.1006  [Amended]

    6. Amend Sec.  17.1006 by removing ``Fee Service Review Physician 
or equivalent officer'' and adding, in its place, ``designated VA 
clinician''.


Sec.  17.1008  [Amended]

    7. Amend Sec.  17.1008 by removing ``treatment'' in both places it 
appears, and adding, in each place, ``treatment and any non-emergent 
treatment that is authorized under Sec.  17.1005(c) of this part''.

[FR Doc. 2010-14110 Filed 6-10-10; 8:45 am]
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