[Federal Register Volume 75, Number 171 (Friday, September 3, 2010)]
[Rules and Regulations]
[Pages 54028-54030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22056]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN52


Technical Revisions To Conform With the Veterans' Mental Health 
Care Act of 2008 and Other Laws

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA) 
medical regulations to make the language of several provisions conform 
to changes in law made by the Homeless Veterans Comprehensive 
Assistance Act of 2001; the Veterans Health Care, Capital Asset, and 
Business Improvement Act of 2003; and the Veterans' Mental Health and 
Other Care Improvements Act of 2008.

DATES: Effective Date: October 4, 2010.

FOR FURTHER INFORMATION CONTACT:  Roscoe Butler, Deputy Director, 
Business Policy, Chief Business Office (163), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-1586. (This is not a toll free 
number.)

SUPPLEMENTARY INFORMATION: This document amends sections of 38 CFR part 
17 to conform with changes made

[[Page 54029]]

by certain sections of the Veterans' Mental Health and Other Care 
Improvements Act of 2008 (``the 2008 Act''), Public Law 110-387, and by 
section 101 of the Veterans Health Care, Capital Asset, and Business 
Improvement Act of 2003 (``the 2003 Act''), Public Law 108-170. It also 
makes a technical change in order to improve data management and 
evaluation of a dental care program authorized by section 2062 of the 
Homeless Veterans Comprehensive Assistance Act of 2001 (``the 2001 
Act''), Public Law 107-95.
    Section 801 of the 2008 Act eliminated a sunset provision that had 
applied to the inclusion of noninstitutional extended care in the 
statutory definition of medical services. In light of the removal of 
this sunset provision, we have included ``noninstitutional extended 
care'' in the regulations that define medical services and the medical 
benefits package, at Sec. Sec.  17.30(a)(1) and 17.38(a)(1)(xi)(B) 
respectively. We note that Sec.  17.38(a)(1)(xi)(B) already lists 
several specific types of noninstitutional extended care, but including 
this term in the regulatory definition of the medical benefits package 
will eliminate any confusion as to whether other types of 
noninstitutional extended care are included.
    Section 301(a) of the 2008 Act amended 38 U.S.C. 1701(5)(B) and 
1782(a) by inserting ``marriage and family counseling'' after 
``professional counseling.'' We have made corresponding changes to 38 
CFR 17.30(a)(2) and 17.38(a)(1)(vii).
    Section 301(a)(1)(B) of the 2008 Act further amended 38 U.S.C. 
1701(5)(B) by striking ``as may be essential to'' and inserting ``as 
the Secretary considers appropriate for,'' authorizing VA to exercise 
discretion to provide certain mental health services, counseling, and 
training for members of a hospitalized veteran's household or family. 
Section 301(a)(2)(B) amended 38 U.S.C. 1782(b) by removing limitations 
in section 1782(b)(1) and (2) on providing counseling for family 
members of non-service-connected veterans. We are revising 38 CFR 
17.30(a)(2) and 17.38(a)(1)(vii) to reflect these changes in law. These 
revisions include removing paragraphs (a)(2)(i) and (ii) of Sec.  17.30 
because they codified statutory provisions that been repealed. To the 
extent that Sec.  17.30(a)(2)(ii) references Sec.  17.84(c), it is 
inaccurate because this provision has been deleted and the reference is 
outdated. Instead, these provisions will be more properly addressed in 
future regulations regarding the Civilian Health and Medical Program of 
the Department of Veterans Affairs, which provides health benefits for 
dependents and survivors of veterans who are service connected, 
permanently and totally disabled, or died of a service-connected 
condition. In the meantime, VA will continue to implement its authority 
as written in the last sentence of 38 U.S.C. 1781(b).
    Section 409 of the 2008 Act amended 38 U.S.C. 1710 so that hospice 
care is not subject to copayment requirements for inpatient hospital 
care or outpatient medical care. We are amending Sec.  17.108(e) 
accordingly.
    Section 101(b) of the 2003 Act amended 38 U.S.C. 1722A(a)(3) to 
exempt former prisoners of war from the pharmacy copayment requirement. 
We are amending 38 CFR 17.110(c) accordingly, by adding medication for 
this class as an exception to the copayment requirement.
    Section 101(a) of the 2003 Act amended 38 U.S.C. 1712(a)(1)(F) to 
remove the prerequisite of a detainment or internment period of at 
least 90 days to establish eligibility for outpatient dental care for a 
former prisoner of war. As a result, there is no longer a need to 
distinguish between class II(b) and class II(c) in VA's regulations. To 
implement this change, we are removing the phrase ``for 90 days or 
more'' in Sec.  17.161(e), which will now authorize dental treatment 
for all prisoners of war as subclass II(c).
    Section 3 of the 2001 Act declared it ``to be a national goal to 
end chronic homelessness among veterans within a decade.'' Section 2062 
of the 2001 Act provides authority for the Homeless Veterans Dental 
Care Program, a one-time course of dental care for certain homeless 
veterans and other enrolled veterans. This rulemaking assigns subclass 
II(b) to veterans eligible for outpatient dental care through the 
program because it is useful for data management purposes and to 
clarify the dental services available to this group of veterans.
    We also note, for the benefit of the public, that several sections 
of the 2008 Act that require rulemaking have already been proposed or 
will be proposed in separate rulemakings. Section 401, concerning VA's 
beneficiary travel program, and section 402, concerning emergency 
treatment, require VA to make certain policy decisions, which will be 
reflected in rulemakings that will require public notice and comment. 
Section 408 liberalized VA's authority to provide care to certain 
children of veterans who are born with spina bifida. Rules implementing 
this section were proposed in ``Herbicide Exposure and Veterans with 
Covered Service in Korea,'' RIN 2900-AN27. See 74 FR 36640 (July 24, 
2009). Finally, section 604 authorized VA to provide financial 
assistance to help very low-income veteran families find or keep 
permanent housing. This section established a new grant program, which 
VA proposed to implement in a separate rulemaking. See 75 FR 24514 (May 
5, 2010).

Administrative Procedure Act

    The changes made by this final rule are interpretive rules, 
nonsubstantive changes to rules, or restatements of statutory 
requirements. These changes are exempt from the notice-and-comment and 
delayed-effective-date requirements of 5 U.S.C. 553(b) and (d).

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 regulatory action as a ``significant regulatory 
action,'' requiring review by the Office of Management and Budget (OMB) 
unless OMB waives such review, if it is a 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 final rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

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

[[Page 54030]]

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, and tribal 
governments, or on the private sector.

Paperwork Reduction Act

    The final rule does not contain any collections of information 
under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final 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. This final rule would 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 final rule is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Catalog of Federal Domestic Assistance Numbers

    The program that this rule affects has the following Catalog of 
Federal Domestic Assistance numbers and titles: 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, Department of Veterans Affairs, approved this 
document on August 30, 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, Government programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing home care, Veterans.

    Dated: August 31, 2010.
Robert C. McFetridge,
Director, Regulations Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

0
For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR Part 17 as follows:

PART 17--MEDICAL

0
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.


0
2. Section 17.30 is amended by:
0
a. In paragraph (a)(1), adding ``noninstitutional extended care,'' 
after ``38 U.S.C. 1762,'';
0
b. Revising paragraph (a)(2) to read as follows:


Sec.  17.30.  Definitions.

* * * * *
    (a) * * *
    (2) Consultation, professional counseling, marriage and family 
counseling, training, and mental health services for the members of the 
immediate family or legal guardian of the veteran or the individual in 
whose household the veteran certifies an intention to live, as 
necessary in connection with the veteran's treatment.
* * * * *

0
3. Section 17.38 is amended by:
0
a. Revising paragraph (a)(1)(vii).
0
b. In paragraph (a)(1)(xi)(B), removing ``Noninstitutional geriatric'' 
and adding, in its place, ``Noninstitutional extended care services, 
including but not limited to noninstitutional geriatric''.
0
c. Revising the authority citation at the end of the section.
    The revisions read as follows:


Sec.  17.38.  Medical benefits package.

* * * * *
    (a) * * *
    (1) * * *
    (vii) Consultation, professional counseling, marriage and family 
counseling, training, and mental health services for the members of the 
immediate family or legal guardian of the veteran or the individual in 
whose household the veteran certifies an intention to live, as 
necessary and appropriate, in connection with the veteran's treatment.
* * * * *

(Authority 38 U.S.C. 101, 501, 1701, 1705, 1710, 1710A, 1721, 1722, 
1782)


0
4. Section 17.108 is amended by:
0
a. In paragraph (e)(13), removing ``; and'' and adding, in its place, a 
semi-colon.
0
b. In paragraph (e)(14), removing the period at the end of the 
paragraph and adding, in its place, ``; and''.
0
c. Adding paragraph (e)(15) to read as follows:


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

* * * * *
    (e) * * *
    (15) Hospice care.
* * * * *

0
5. Section 17.110 is amended by:
0
a. In paragraph (c)(6), removing ``; and'' and adding, in its place, a 
semi-colon.
0
b. In paragraph (c)(7), removing the period at the end of the paragraph 
and adding, in its place, ``; and''.
0
c. Adding paragraph (c)(8) to read as follows:


Sec.  17.110  Copayments for medication.

* * * * *
    (c) * * *
    (8) Medication for a veteran who is a former prisoner of war.
* * * * *

0
6. Section 17.161 is amended by:
0
a. Adding an authority citation at the end of paragraph (c).
0
b. Revising paragraphs (d) and (e).
    The addition and revisions read as follows:


Sec.  17.161  Authorization of outpatient dental treatment.

* * * * *
    (c) * * *

(Authority: 38 U.S.C. 501; 1712(a)(1)(C))


    (d) Class II(b). Certain homeless and other enrolled veterans 
eligible for a one-time course of dental care under 38 U.S.C. 2062.

(Authority: 38 U.S.C. 2062; 38 U.S.C. 1712(a)(1)(H))


    (e) Class II(c). Those who were prisoners of war, as determined by 
the concerned military service department, may be authorized any needed 
outpatient dental treatment.

(Authority: Pub. L. 100-322; Pub. L. 108-170; 38 U.S.C. 
1712(b)(1)(F))

* * * * *
[FR Doc. 2010-22056 Filed 9-2-10; 8:45 am]
BILLING CODE 8320-01-P