[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Proposed Rules]
[Pages 30598-30600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13015]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN86


Payment or Reimbursement for Emergency Services for Nonservice-
Connected Conditions in Non-VA Facilities

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) ``Payment or Reimbursement for Emergency Services for 
Nonservice-Connected Conditions in Non-VA Facilities'' regulations to 
conform with changes made by certain sections of the Expansion of 
Veteran Eligibility for Reimbursement Act. Some of the revisions in 
this proposed rule are purely technical, matching the language of our 
regulations to the language of the revised statute, while others set 
out VA's policies regarding the implementation of statutory 
requirements. The proposed rule would expand the qualifications for 
payment or reimbursement to veterans who receive emergency services in 
non-VA facilities, and would establish accompanying standards for the 
method and amount of payment or reimbursement.

DATES: Comments on the proposed rule must be received by VA on or 
before July 25, 2011.

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 Avenue, 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-AN86--Payment or Reimbursement of Emergency 
Services for Nonservice-Connected Conditions in Non-VA Facilities.'' 
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 at http://www.Regulations.gov through the Federal Docket 
Management Systems (FDMS).

FOR FURTHER INFORMATION CONTACT: Holley Niethammer, Fee Policy Chief, 
National Fee Program Office, Veterans Health Administration, Department 
of Veterans Affairs, 3773 Cherry Creek Dr. N., East Tower, Ste 495, 
Denver, CO 80209, (303) 370-5062. (This is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    On February 1, 2010, Congress enacted the Expansion of Veteran 
Eligibility for Reimbursement Act (2010 Act), amending 38 U.S.C. 1725. 
Current VA regulations implement section 1725 in 38 CFR 17.1000 through 
17.1008 under the undesignated heading ``Payment or Reimbursement for 
Emergency Services for Nonservice-Connected Conditions in Non-VA 
Facilities.'' This proposed rule would revise Sec. Sec.  17.1001, 
17.1002, 17.1004, and 17.1005. These revisions would eliminate certain 
exclusions from emergency care payment or reimbursement, and define the 
payment limitations for those qualifying for payment or reimbursement 
under the law as amended by the 2010 Act.
    The 2010 Act amended 38 U.S.C. 1725 by removing a provision that 
included automobile insurance carriers in the definition of ``health-
plan contract.'' Under 38 U.S.C. 1725, veterans who are covered by a 
health-plan contract are ineligible for VA payment or reimbursement. 
Thus, we propose to remove current 38 CFR 17.1001(a)(5), which includes 
automobile insurance in the definition of ``health-plan contract.'' 
These proposed amendments would implement VA's authority to pay or 
reimburse claimants for providing emergency services to a veteran if 
the veteran received, or is legally eligible to receive, partial 
payment towards emergency services from an automobile insurer.
    The 2010 Act also amended 38 U.S.C. 1725 by removing a provision 
that precluded certain claimants from payment or reimbursement by VA 
for emergency care at non-VA facilities. Parties who qualified as 
claimants under former section 1725 (as implemented by VA in current 38 
CFR 17.1004(a)) included veterans, the provider of the emergency 
treatment, or the person or organization that paid for such treatment 
on behalf of the veteran. Under the 2010 Act, claimants who are 
entitled to partial payment from a third party for providing non-VA 
emergency services to a veteran are no longer barred from also 
receiving VA payment or reimbursement for such care. Prior to the 2010 
Act, section 1725 required that VA deny any claim in which a veteran 
has ``other contractual or legal recourse against a third party that 
would, in whole or in part, extinguish such liability to the 
provider.'' The 2010 Act removed ``or in part'' from this exclusion. In 
order to remove this partial payment exclusion from VA regulations, we 
propose to remove the clause, ``or in part'', from Sec.  17.1002(h), to 
parallel the language in 38 U.S.C. 1725.
    In addition, the 2010 Act authorized, but did not require, VA to 
provide repayment under section 1725 ``for emergency treatment 
furnished to a veteran before the date of the enactment of th[e 2010] 
Act, if the Secretary determines that, under the circumstances 
applicable with respect to the veteran, it is appropriate to do so.'' 
We interpret this provision to allow VA, through regulation, to provide 
retroactive reimbursement, and we propose to implement this authority 
in Sec.  17.1004(f).
    Under current Sec.  17.1004(d), claims for reimbursement must be 
filed within 90 days after the latest of four dates: (1) July 19, 2001 
(the effective date of Sec.  17.1004(d) when VA first promulgated the 
regulation); (2) the date that the veteran was discharged from the 
facility that provided the emergency treatment; (3) the date of the 
veteran's death (under specified circumstances); or (4) the date that 
the veteran finally exhausted, without success, action to obtain 
reimbursement from a third party. A retroactive claim under proposed 
Sec.  17.1004(f) would be an exception to this rule. Moreover, the 
first requirement in current Sec.  17.1004(d)(1)--that claims must be 
filed within the 90-day period after July 19, 2001--is an outdated 
provision because all claims now received by VHA for reimbursement 
must, as a practical matter, be filed many years after July 19, 2001. 
Therefore, we propose to remove Sec.  17.1004(d)(1).
    Because proposed Sec.  17.1004(f) would authorize reimbursement for 
a claim that does not meet the generally applicable criteria in Sec.  
17.1004(d), we would make the provision apply ``[n]otwithstanding 
paragraph (d)''. We would also require that the emergency treatment was 
received on or after July 19, 2001. We use this date from current Sec.  
17.1004(d)(1) because there is no indication in the language or history 
of the 2010 Act that Congress intended a

[[Page 30599]]

greater benefit for claimants applying under the retroactive 
authorization in the 2010 Act than what VA prescribed for claimants 
under current Sec.  17.1004(d). In addition, the retroactivity 
authorized by paragraph (f) would apply only to treatment received more 
than 90 days before the effective date of the final rule in this 
rulemaking. This limitation is necessary because treatment received 
after that date would be covered by Sec.  17.1004(d), i.e., a claim for 
such care is not a retroactive claim.
    We also propose to limit the applicability of this retroactive 
authority to claims filed within 1 year after the effective date of the 
final rule. Because retroactive claims may be for care provided nearly 
10 years ago, we believe that a 1-year time limit allows claimants 
adequate time to learn about the new rule and complete their claims, 
while providing VA a reasonable timeframe within which it must be 
prepared to handle these more complex retroactive claims.
    Section 1725, as amended by the 2010 Act, sets forth specific 
payment limitations for those claimants who now qualify for payment or 
reimbursement based on the removal of the partial payment restriction 
discussed above. We would establish these limitations in paragraphs (c) 
and (d) of Sec.  17.1005.
    First, in proposed Sec.  17.1005(c)(1), VA would be a secondary 
payer in cases where a third party is financially responsible for part 
of the veteran's emergency treatment expenses. This reflects 38 U.S.C. 
1725(c)(4)(B), which directs VA to be the secondary payer in such 
cases. Under proposed Sec.  17.1005(c)(2), in cases where a veteran 
receives, or is legally entitled to receive, only partial reimbursement 
from a third party, VA would ``pay the difference between the amount VA 
would have paid under this section for the cost of the emergency 
treatment and the amount paid (or payable) by the third party.'' This 
payment limitation would be based on 38 U.S.C. 1725(c)(4)(A), which 
specifically requires VA to pay this amount.
    VA would pay the provider the difference between the amount paid on 
behalf of the veteran by the third party and the amount VA would have 
paid in the absence of legal liability for the payment of the veteran's 
health care cost by a third party. The total of these combined payments 
would also be considered payment in full and extinguish any liability 
that the veteran may have to the provider. This payment limitation is 
required by 38 U.S.C. 1725(c)(4)(C), which directs VA to pay in full 
and extinguish the veteran's liability. The veteran would no longer be 
liable because the amount of the third party's payment or legal 
liability, plus VA's payment, would equal the total payment VA would 
have made in the absence of third party liability for the veteran's 
emergency care costs. Therefore, in proposed Sec.  17.1005(c)(3), VA 
would state that ``[t]he provider will consider the combined payment 
under paragraph (c)(2) of this section as payment in full and 
extinguish the veteran's liability to the provider.''
    Under proposed Sec.  17.1005(d), VA would not reimburse claimants 
for any ``deductible, copayment or similar payment'' that veterans owe 
to third parties. This is based on 38 U.S.C. 1725(c)(4)(D).
    Finally, we note that it is not necessary to propose changes based 
on the statutory language precluding reimbursement for amounts ``for 
which the veteran is responsible under a health-plan contract,'' 
because current 38 CFR 17.1002(g) already prevents any reimbursement or 
payment where the veteran is under a health-plan contract.

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

Paperwork Reduction Act

    The Office of Management and Budget (OMB) assigns a control number 
for each collection of information it approves. Except for emergency 
approvals under 44 U.S.C. 3507(j), VA may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.
    Current Sec.  17.1004 contains a collection of information under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521). OMB previously 
approved the collection of information and assigned Control Number 
2900-0620. Because this proposed rule does not alter the information 
collection approved by OMB under the existing control number, we do not 
propose to seek new approval.
    We propose to insert a citation to the OMB control number 
immediately after the authority citation for Sec.  17.1004 to clarify 
that that section contains an approved collection of information.

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 proposed rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

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. 601-612. This proposed 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. Further, under this proposed rule, affected small 
entities would be reimbursed for the expenses they incur for the 
emergency treatment of certain veterans. 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.

[[Page 30600]]

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program number and title 
for this proposed 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; 64.014, Veterans 
State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 
64.018, Sharing Specialized Medical Resources; 64.019, Veterans 
Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based 
Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem 
Program.

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 May 19, 2011, 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: May 20, 2011.
William F. Russo,
Deputy Director, Office of Regulations Policy & Management, Department 
of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to revise 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, and as noted in specific sections.


Sec.  17.1001  [Amended]

    2. Amend Sec.  17.1001 by removing paragraph (a)(5).


Sec.  17.1002  [Amended]

    3. Amend Sec.  17.1002 by removing the words ``or in part'' in 
paragraph (h).


Sec.  17.1004  [Amended]

    4. Amend Sec.  17.1004 as follows:
    a. Remove paragraph (d)(1).
    b. Redesignate paragraphs (d)(2), (d)(3) and (d)(4) as new 
paragraphs (d)(1), (d)(2) and (d)(3), respectively.
    c. Add paragraph (f) immediately following paragraph (e).
    d. Add an information collection approval parenthetical at the end 
of the section.
    The additions read as follows:


Sec.  17.1004.  Filing claims.

* * * * *
    (f) Notwithstanding paragraph (d) of this section, VA will provide 
retroactive payment or reimbursement for emergency treatment received 
by the veteran on or after July 19, 2001, but more than 90 days before 
[the effective date of the final rule], if the claimant files a claim 
for reimbursement no later than 1 year after [the effective date of the 
final rule].
* * * * *
    (The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0620.)
    5. Amend Sec.  17.1005 by adding paragraphs (c) and (d), to read as 
follows:


Sec.  17.1005.  Payment limitations.

* * * * *
    (c) If an eligible veteran under Sec.  17.1002 has contractual or 
legal recourse against a third party that would only partially 
extinguish the veteran's liability to the provider of emergency 
treatment then:
    (1) VA will be the secondary payer;
    (2) Subject to the limitations of this section, VA will pay the 
difference between the amount VA would have paid under this section for 
the cost of the emergency treatment and the amount paid (or payable) by 
the third party; and
    (3) The provider will consider the combined payment under paragraph 
(c)(2) of this section as payment in full and extinguish the veteran's 
liability to the provider.
    (d) VA will not reimburse a claimant under this section for any 
deductible, copayment or similar payment that the veteran owes the 
third party.
* * * * *
[FR Doc. 2011-13015 Filed 5-25-11; 8:45 am]
BILLING CODE 8320-01-P