[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Proposed Rules]
[Pages 75509-75512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31031]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AO03


Autopsies at VA Expense

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulation that governs the performance of autopsies on veterans. The 
proposed rule would correct a cross-reference to VA regulations that 
authorize certain outpatient and ambulatory care. The proposed rule 
would also clarify that consent for an autopsy will be implied if 6 
months has passed since the decedent's death and there are no 
objections from the decedent's surviving spouse or next of kin. The 
proposed rule would also modify current regulations to make the laws of 
the jurisdiction in which the autopsy will be performed the controlling 
laws for purposes of determining who has authority to grant permission 
for the autopsy. The proposed rule would also clarify the authorized 
purposes of a VA autopsy. Lastly, the proposed rule would clarify that 
the authority to order an autopsy includes transporting the body at 
VA's expense to the autopsy facility.

DATES: Comments must be received by VA on or before January 31, 2012.

ADDRESSES: Written comments may be submitted through 
www.regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue NW., Room 1068,

[[Page 75510]]

Washington, DC 20420; or by fax to (202) 273-9026. Comments should 
indicate that they are submitted in response to ``RIN 2900-AO03, 
Autopsies at VA Expense.'' 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). 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: Kristin J. Cunningham, Director, 
Business Policy, Chief Business Office, Department of Veterans Affairs, 
810 Vermont Ave. NW., Washington, DC 20420; (202) 461-1599. (This is 
not a toll-free number).

SUPPLEMENTARY INFORMATION: Pursuant to 38 CFR 17.170, under certain 
specified circumstances, ``[t]he Director of a [VA] facility is 
authorized to cause an autopsy to be performed on a veteran who dies 
outside of a [VA] facility while undergoing post-hospital care under 
the provisions of 38 U.S.C. 1712 and 38 CFR 17.93.'' When this 
regulatory provision was originally promulgated, 38 U.S.C. 1712 served 
as the authority for certain outpatient and ambulatory care and, 
therefore, it also served as the authority for our post-hospitalization 
autopsy regulation. However, in 1996, section 1712 was amended by the 
Veterans' Health Care Eligibility Reform Act of 1996, Public Law 104-
262, sec. 101. The amendment moved from section 1712 to 38 U.S.C. 1710 
the authority to provide outpatient and ambulatory care. In accordance 
with that amendment, VA promulgated 38 CFR 17.38, on October 6, 1999, 
64 FR 54212. Section 17.38, inter alia, implemented the revised 
statutory authority, in 38 U.S.C. 1710, that authorizes VA to provide 
hospital and outpatient care to veterans.
    We also note that 38 U.S.C. 1703 authorizes VA under specified 
circumstances to contract with non-VA facilities to furnish hospital 
care and medical services to certain veterans in non-VA facilities. VA 
implemented this authority with respect to individuals who died while 
receiving hospital and medical care in non-VA facilities in 38 CFR 
17.52. Limiting autopsies to individuals who are only receiving VA 
medical care under Sec.  17.38 would exclude the individuals who are 
receiving fee-basis care under Sec.  17.52, and would, therefore, be 
inconsistent with current Sec.  17.170. This proposed rule would update 
the statutory and regulatory cross-references in Sec.  17.170 
accordingly. These are overdue technical revisions that would not 
affect VA's authority to authorize autopsies.

38 CFR 17.170(a), (b)

    This rulemaking would also amend current paragraphs (a) and (b) of 
Sec.  17.170 by reorganizing and clarifying the provisions governing 
whether an autopsy should be performed. Current paragraphs (a) and (b) 
state:

    (a) Except as provided in this section, no autopsy will be 
performed by the Department of Veterans Affairs unless there is no 
known surviving spouse or known next of kin; or without the consent 
of the surviving spouse or, in a proper case, the next of kin, 
unless the patient or domiciled person was abandoned by the spouse, 
if any, or, if no spouse, by the next of kin for a period of not 
less than 6 months next preceding death. Where no inquiry has been 
made for or in regard to the decedent for a period of 6 months next 
preceding his death, he or she shall be deemed to have been 
abandoned.
    (b) If there is no known surviving spouse or known next of kin, 
or if the decedent shall have been abandoned or if the request is 
sent and the spouse or, in proper cases, the next of kin fails to 
reply within the reasonable time stated in such request of the 
Department of Veterans Affairs for permission to perform the 
autopsy, the Director is hereby authorized to cause an autopsy to be 
performed if in the Director's discretion he or she concludes that 
such autopsy is reasonably required for any necessary purpose of the 
Department of Veterans Affairs, including the completion of official 
records and advancement of medical knowledge.

    Current paragraphs (a) and (b) use the term ``abandoned'' to 
effectively establish implied consent for an autopsy on the part of a 
known surviving spouse or next of kin and to effectively establish that 
there is no surviving spouse or next of kin to provide consent in cases 
where VA is unaware that such a person exists. This proposed rule would 
be clearer, and would retain the same substantive meaning, if it was 
revised to avoid using the term ``abandoned.'' We would state in new 
paragraphs (a)(2)(ii) and (iii), respectively, that VA is authorized to 
perform an autopsy if a known surviving spouse or next of kin has 
either not responded to a VA request for permission or has not inquired 
as to the decedent for a period of 6 months prior to death. This would 
accomplish the same effect as the current language, but would do so in 
plainer, more direct language. We would also clarify that the consent 
to grant an autopsy is either directly granted by the surviving spouse 
or next of kin, or the consent is implied. The implied consent gives VA 
the authority to perform an autopsy in situations where there is no 
known surviving spouse or next of kin, where the known surviving spouse 
or next of kin has not inquired as to the decedent for a period of 6 
months prior to death, or where such persons have not responded to VA's 
request for permission to perform an autopsy. This clarifying language 
allows for ease of interpretation of the methods used to obtain consent 
for autopsy.
    We also propose to state that the surviving spouse/next of kin must 
respond to VA's request for authorization to perform an autopsy 
``within a specified period of time'' rather than within a ``reasonable 
time stated in such request.'' Such requests clearly specify the 
applicable time period, which is typically short and based on the 
specific facts concerning the decedent's body and/or cause of death. 
There is no reason to include a ``reasonable'' modifier in these 
situations; it is more direct to simply require a response within the 
time period specified in the request.
    Finally, we would reorganize the provisions of current paragraphs 
(a) and (b) to improve readability. In so doing, we would, in proposed 
paragraph (a)(1), authorize the Director of the VA facility to order an 
autopsy if ``required for VA purposes for the following reasons: (i) 
Completion of official records; or (ii) Advancement of medical 
knowledge.'' The current rule is overly broad as it implies that there 
may be more than two circumstances in which VA may order an autopsy. 
All autopsy requests fall under the advancement of medical knowledge or 
the completion of medical records. This proposed rule would clarify 
this point. Proposed paragraph (a)(1) would restate the current rule, 
with the changes noted above.

38 CFR 17.170(d)

    Current paragraph (e) states that ``[t]he laws of the decedent's 
domicile are determinative as to whether the spouse or the next of kin 
is the proper person to grant permission to perform an autopsy and of 
the question as to the order of preference among such persons.'' We 
note that readers may have interpreted this sentence to mean that if 
the decedent dies in a State where the decedent did not reside, we 
would apply the law of the State where the decedent resided in order to 
establish the proper person to grant permission for an autopsy. Laws on 
this issue may vary between States, and it is administratively 
burdensome--and unnecessary--to require VA medical center directors to 
determine the decedent's domicile and then to compare and contrast the 
laws of the

[[Page 75511]]

various States that may be involved. In order to avoid potential 
confusion and administrative difficulties, particularly in autopsy 
situations where time is usually of the essence, we have determined 
that the laws of the jurisdiction in which the autopsy would be 
performed should be used to determine the proper person to grant 
permission for the autopsy. We propose such a rule in paragraph (d)(1).
    The current regulation also describes the typical hierarchy for 
those who may grant permission for an autopsy, but the language is 
hortatory and nonbinding (``[u]sually the spouse is first entitled,'' 
etc.). We believe that this is not only unhelpful but is also 
potentially misleading if it is relied upon by a VA facility director 
in a State in which this typical hierarchy is not in fact law. Thus, we 
would remove this list. This change will emphasize the need for each 
local VA facility to establish its own local guidance based on the 
applicable law of the State in which the autopsy will be performed. We 
also propose to reorganize and clarify the provisions of current 
paragraph (e) in proposed paragraph (d).

38 CFR 17.170(e)

    Under current paragraph (f) the Director of a VA facility ``is 
authorized to cause an autopsy to be performed on a veteran who dies 
outside of a Department of Veterans Affairs facility while undergoing 
post-hospital care under the provisions of 38 U.S.C. 1712 and 38 CFR 
17.93.'' As noted previously, these authorities have been revised. We 
would amend the regulation accordingly. In addition, current paragraph 
(f) states that the Director of the VA facility's authority to order an 
autopsy also includes authority to furnish transportation of the body 
at VA expense to the VA facility where the autopsy would be performed. 
However, an autopsy would not necessarily be performed in a VA 
facility. VA may use a contract provider to perform the autopsy outside 
of a VA facility, or utilize a regional autopsy center. We, therefore, 
propose to state in paragraph (e) that the authority to order an 
autopsy ``also includes transporting the body at VA's expense to the 
facility where the autopsy will be performed.''
    We also propose to add an authority citation, 38 U.S.C. 501, 1703, 
and 1710, after Sec.  17.170.

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).

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. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 
rule is exempt from the initial and final regulatory flexibility 
analysis requirements of Sec. Sec.  603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), 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 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action 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, 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.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program number and title 
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; 64.014, 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 November 21, 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; Government contracts; 
Grant programs--health; Grant programs--veterans; Health care; Health 
facilities; Health professions; Health records; Homeless; Mental health 
programs; Nursing homes; Philippines, Reporting and recordkeeping 
requirements; Veterans.

    Dated: November 29, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 17 as follows:

[[Page 75512]]

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.

    2. Amend Sec.  17.170 by:
    a. Revising paragraph (a).
    b. Removing paragraph (b).
    c. Redesignating paragraph (c) as new paragraph (b) and adding a 
paragraph heading.
    d. Redesignating paragraph (d) as new paragraph (c) and adding a 
paragraph heading.
    e. In newly redesignated paragraph (c), removing ``paragraph (c)'' 
each time it appears and adding, in its place, ``paragraph (b)''.
    d. Redesignating paragraph (e) as new paragraph (d) and revising 
newly redesignated paragraph (d).
    e. Redesignating paragraph (f) as new paragraph (e) and revising 
newly redesignated paragraph (e).
    f. Adding an authority citation at the end of the section.
    The revisions and addition read as follows:


Sec.  17.170  Autopsies.

    (a) General. (1) Except as otherwise provided in this section, the 
Director of a VA facility may order an autopsy on a decedent who died 
while undergoing VA care authorized by Sec.  17.38, ``Medical Benefits 
Package'', or Sec.  17.52, ``Hospital care and medical services in non-
VA facilities'', if the Director determines that an autopsy is required 
for VA purposes for the following reasons:
    (i) Completion of official records; or
    (ii) Advancement of medical knowledge.
    (2) VA may order an autopsy to be performed only if consent is 
first obtained under one of the following circumstances:
    (i) Consent is granted by the surviving spouse or next of kin of 
the decedent;
    (ii) Consent is implied where a known surviving spouse or next of 
kin does not respond within a specified period of time to VA's request 
for permission to conduct an autopsy;
    (iii) Consent is implied where a known surviving spouse or next of 
kin does not inquire after the well-being of the deceased veteran for a 
period of at least 6 months before the date of the veteran's death; or
    (iv) Consent is implied where there is no known surviving spouse or 
next of kin of the deceased veteran.
    (b) Death resulting from crime. * * *
    (c) Jurisdiction. * * *
    (d) Applicable law. (1) The laws of the state where the autopsy 
will be performed are to be used to identify the person who is 
authorized to grant VA permission to perform the autopsy and, if more 
than one person is identified, the order of precedence among such 
persons.
    (2) When the next of kin, as defined by the laws of the state where 
the autopsy will be performed, consists of a number of persons such as 
children, parents, brothers and sisters, etc., permission to perform an 
autopsy may be accepted when granted by the person in the appropriate 
class who assumes the right and duty of burial.
    (e) Death outside a VA facility. The Director of a VA facility may 
order an autopsy on a veteran who was undergoing VA care authorized by 
Sec. Sec.  17.38 or 17.52, and whose death did not occur in a VA 
facility. Such authority also includes transporting the body at VA's 
expense to the facility where the autopsy will be performed, and the 
return of the body. Consent for the autopsy will be obtained as stated 
in paragraph (d) of this section. The Director must determine that such 
autopsy is reasonably required for VA purposes for the following 
reasons:
    (1) The completion of official records; or
    (2) Advancement of medical knowledge.

(Authority: 38 U.S.C. 501, 1703, 1710)


[FR Doc. 2011-31031 Filed 12-1-11; 8:45 am]
BILLING CODE 8320-01-P