[Federal Register Volume 76, Number 245 (Wednesday, December 21, 2011)]
[Rules and Regulations]
[Pages 79067-79072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32413]


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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: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
medical regulations concerning emergency hospital care and medical 
services provided to eligible veterans at non-VA facilities. The 
amendments are required by section 402 of the Veterans' Mental Health 
and Other Care Improvements Act of 2008. Among other things, the 
amendments authorize VA to pay for emergency treatment provided to a 
veteran at a non-VA facility up to the time the veteran can be safely 
transferred to a VA or other Federal facility and such facility is 
capable of accepting the transfer, or until such transfer was actually 
accepted, so long as the non-VA facility made and documented reasonable 
attempts to transfer the veteran to a VA or other Federal facility.

DATES: Effective Date: This final rule is effective January 20, 2012.

[[Page 79068]]


FOR FURTHER INFORMATION CONTACT: Lisa Brown, Chief Policy Management 
Department, Department of Veterans Affairs, 3773 Cherry Creek North 
Drive, Suite 450, Denver, CO 80209, (303) 331-7829. (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, and 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 eligible veterans with nonservice-connected conditions, and 
at 38 CFR 17.120 and 17.121 for eligible veterans with service-
connected conditions.
    As explained in a notice of proposed rulemaking published on June 
11, 2010 (75 FR 33216), prior to recent amendments to the law, VA was 
not authorized to reimburse or pay for treatment provided after ``the 
veteran c[ould] be transferred safely to a [VA] facility or other 
Federal facility'' under 38 U.S.C. 1725(f)(1)(C) (2007). Thus, under 38 
U.S.C. 1725 and pursuant to regulations implementing 38 U.S.C. 1728, 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 enough for transfer, even if no VA or other Federal facility 
could immediately accept the transfer and the veteran required 
continued, non-emergency treatment.
    On October 10, 2008, the Veterans' Mental Health and Other Care 
Improvements Act of 2008, Public Law 110-387, was enacted, and it made 
several amendments to our authority to reimburse for the cost of non-VA 
emergency care.
    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.'' 
This amendment extended our authority to pay for treatment post-
stabilization.
    Section 402(a)(1) amended section 1725(a)(1) by striking the term 
``may reimburse'' and inserting ``shall reimburse'' in its place. This 
amendment requires VA to reimburse the covered costs for emergency care 
received at non-VA facilities for eligible veterans, rather than 
leaving the decision to make such reimbursement at the discretion of 
the Secretary.
    Section 402(b) of Public Law 110-387 amended 38 U.S.C. 1728. First, 
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 a non-VA provider of emergency care. The statute had 
previously authorized reimbursement for ``the reasonable value of such 
care or services.'' This amendment relates to the amount of payment and 
is the subject of another rulemaking, RIN 2900-AN37, ``Payment for 
Inpatient and Outpatient Health Care Professional Services at Non-
Departmental Facilities and Other Medical Charges Associated with Non-
VA Outpatient Care''. 75 FR 7218 (Feb. 18, 2010).
    Second, section 402(b)(3) made the definition of ``emergency 
treatment'' in section 1725(f)(1) applicable to section 1728. As 
described above, that 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.''
    In the proposed rule published on June 11, 2010 (75 FR 33216), we 
proposed to amend the following VA regulations to comply with the 
amendments made to 38 U.S.C. 1725 and 1728, and 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 received four comments on the proposed rule. One commenter fully 
supported the rule because it will improve veterans' ability to obtain 
emergency care from non-VA facilities. The remainder of the comments 
are addressed below.
    One commenter was concerned with our decision in Sec. Sec.  
17.121(a) and 17.1006 to assign a ``designated VA clinician'' with the 
task of determining whether treatment should be reimbursed, 
specifically asserting that VA should place this responsibility in more 
highly skilled and trained employees. We disagree with this comment, 
and make no changes to the rule, because this portion of the rule 
simply adopts customary practice as implemented in the health care 
industry. The common industry practice is to utilize the services of 
health care professionals, such as nurses, for purposes of clinical 
review. Further, we believe that this designation of responsibility 
will promote greater efficiency in the use of VA physician services. VA 
employs highly trained clinical staff that is capable of making a 
clinical determination as to whether emergency care meets the 
requirements set forth under this rule, and whether a veteran can be 
safely transferred from the non-VA facility.
    We received three comments related to the transfer of veterans from 
non-VA hospitals. The commenters questioned whether VA was giving 
enough deference to the treating physician at the non-VA facility to 
determine when the veteran is stable enough to be transferred to a VA 
facility. A veteran may not be transferred from a non-VA facility to a 
VA facility before such veteran has first been released by the 
physician of the treating facility, and only after such physician 
determines the veteran has been stabilized. We note that this rule 
governs the payment for emergency services only, and VA's review of an 
episode of care for the purposes of determining eligibility for payment 
is retroactive, meaning the emergency care has already been provided. 
In reviewing the episode of care for payment purposes, VA will consider 
the treating physician's assessment of when the veteran returned to a 
stable condition and could have been transferred to a VA or other 
Federal facility. Although the procedure for transferring a VA-enrolled 
patient from a non-VA facility to a VA facility is not governed by this 
rule, we note that VA's practice is to work with the treating non-VA 
clinicians to determine when transfer would be safe. If the veteran's 
stability for transfer is questionable, the designated VA clinician 
will consult with the attending non-VA physician to determine whether 
transfer is in the best interest of the veteran. At no time during an 
episode of care will VA challenge the discretion of the treating non-VA 
physician with regard to whether an emergency situation has ended. We 
make no changes based on these comments.
    One commenter read the refusal of transfer provisions at proposed 
Sec.  17.121(c) and Sec.  17.1005(d) to exclude payment for non-
emergency care

[[Page 79069]]

provided up until the point that transfer was available but refused by 
the veteran. Under the applicable law, VA is authorized to provide 
reimbursement for emergency care only ``until * * * such time as the 
veteran can be transferred'' to a VA or other Federal facility. 38 
U.S.C. 1725(f)(1)(C). See also 38 U.S.C. 1728(c) (adopting the meaning 
of ``emergency treatment'' provided in section 1725(f)(1)). VA intended 
that the proposed rule provide that the episode of care will be 
considered for payment up to the point in time where VA was able to 
accept transfer but the veteran refused or opted not to be transferred 
to the VA facility. Because the language in the proposed rule did not 
accurately express this statutory authorization and VA's intent, we 
have revised the language in both Sec.  17.121(c) and Sec.  17.1005(d). 
Specifically, in Sec.  17.121(c), we have removed the language 
referring to the point of ``stabilization'' and replaced it with 
language referring to the point of ``refusal of transfer by the 
veteran.'' We make the same change in Sec.  17.1005(d).
    One commenter suggested that VA should provide payment for 
ancillary and pharmaceutical treatment in connection with the veteran's 
emergency care. To the extent the commenter wishes VA to reimburse 
veterans for the cost of such treatment provided during an episode of 
emergency care (prior to stabilization and a transfer determination), 
such treatment is in fact reimbursable as emergency care under this 
regulation--even if the emergency treatment includes the direct 
provision by the non-VA facility of a short course of medications 
needed to enable the discharge or transfer of the veteran. To the 
extent the commenter wishes VA to pay for medications provided after 
the episode of emergency care, this is beyond the scope of this 
rulemaking.
    In light of the potential for confusion as to what constitutes 
emergency treatment under the regulation, we have added to Sec.  
17.120(b) and Sec.  17.1002 clarification that emergency treatment 
includes ``medical services, professional services, ambulance services, 
ancillary care and medication (including a short course of medication 
related to and necessary for the treatment of the emergency condition 
that is provided directly to the patient for use after the emergency 
condition is stabilized and the patient is discharged))''. This 
reflects our original intent, but should reduce or eliminate some of 
the concerns raised by the commenter.
    We propose to clarify the term ``Federal facility'' in additional 
subsections of the regulations implementing 38 U.S.C. 1725 and 38 
U.S.C. 1728. The term ``Federal facility'' is used in the definition of 
``emergency treatment'' in subparagraph (C) of section 1725(f)(1) in 
the context of veterans being stable enough after an emergency to be 
transferred to a VA or other Federal facility and the availability of 
such facilities. 38 U.S.C. 1725(f)(1)(C). As identified in the notice 
of proposed rulemaking published on June 11, 2010 (75 FR 33216), the 
term ``Federal facility'' as it is used in 38 U.S.C. 1725(f)(1)(C) is 
clarified in this rulemaking in 38 CFR 17.121 and 17.1005 to mean 
``Federal facility that VA has an agreement with to furnish health care 
services for veterans''. Practically, VA considers that ``emergency 
treatment'' should be considered to continue until transfer is possible 
and accepted to a VA facility or Federal facility with which VA has an 
agreement, because determining availability of or eligibly for other 
Federal facilities will typically not be feasible.
    The term ``Federal facilities'' is also used in the definition of 
``emergency treatment'' in subparagraph (A) of 38 U.S.C. 1725(f)(1), to 
specify that ``emergency treatment'' under sections 1728 and 1725 
means, in pertinent part, ``medical care or services furnished, in the 
judgment of the Secretary--(A) when Department or other Federal 
facilities are not feasibly available and an attempt to use them 
beforehand would not be reasonable''. See definition of ``emergency 
treatment'' at 38 U.S.C. 1725(f)(1)(A) and 38 U.S.C. 1728(c) 
referencing such definition. Current regulations implementing sections 
1728 and 1725 reiterate this requirement, explaining that payment or 
reimbursement may only be made if a VA or other Federal facility was 
not feasibly available, and an attempt to use them beforehand would not 
have been reasonable. See 38 CFR 17.1002(c) and 38 CFR 17.120(c). We 
propose to clarify the term ``Federal facilities'' as it is used in 
subparagraph (A) of section 1725(f)(1), just as we have done as it is 
used in subparagraph (C) of section 1725(f)(1), to mean only those 
Federal facilities ``that VA has an agreement with to furnish health 
care services for veterans.'' We make this change to allow for VA 
reimbursement of care provided in Federal facilities with which VA does 
not have an agreement and where the veteran would be personally liable 
for payment. Without this qualification, it may not be clear that VA 
can pay for or reimburse a veteran who obtains emergency care in a 
Federal facility with which VA does not have an agreement and which 
holds the veteran personally financially liable for the costs of the 
care.
    Congress did not define ``Federal facility'' (or ``Federal 
facilities'') in 38 U.S.C. 1728 or 1725, which provide VA's authority 
to make payment or provide reimbursement for emergency treatment from 
non-VA providers. As indicated, we propose to interpret ``Federal 
facility'' (and ``Federal facilities'') to mean facilities that VA has 
an agreement with to furnish health care services for veterans. From a 
practical standpoint, this interpretation makes sense because VA would 
generally have no way of knowing whether other Federal resources are 
available at any one time without such agreement. Without knowing of 
the availability of such Federal facilities, it is the Secretary's 
judgment that those facilities cannot be considered reasonable or 
feasible in the context of a medical emergency. This interpretation is 
also consistent with the intent of the statute, which is to cover the 
costs of care for veterans when such care must be provided outside of 
the VA setting. If the veteran who has an accident on a military 
installation is personally financially liable for that care, the intent 
of the statute was to relieve that burden. We note, however, that we do 
not interpret the statute as requiring VA to reimburse a Federal 
facility when the veteran receiving care would not otherwise be 
financially liable.
    Finally, although we have added this clarifying language, we note 
that this is not a change in VA's interpretation of the statute because 
VA currently interprets the statute in this way. These regulatory 
amendments merely codify VA's current interpretation for legal notice 
purposes. We, therefore, add the clarifying language ``that VA has an 
agreement with to furnish health care services for veterans'' after the 
term ``Federal facilities'' in Sec.  17.120(c), ``Federal facility'' in 
Sec.  17.1001(d), and ``Federal facility/provider'' in Sec.  
17.1002(c). We note the reference to ``other Federal facility'' in 
Sec.  17.1001(d) pertains to the veteran's stability for transfer to a 
VA or other Federal facility, not other Federal facilities being 
unavailable at the time of the emergency, but was not noted for 
amendment in the notice of proposed rulemaking published on June 11, 
2010 (75 FR 33216). The change reflects VA's existing interpretation of 
the statute.
    For the reasons set forth in the supplementary information to the 
notice of proposed rulemaking and in this notice, VA is adopting the 
proposed rule as a final rule with the changes discussed above.

[[Page 79070]]

Effect of Rulemaking

    The Code of Federal Regulations, as revised by this notice, 
represents the exclusive legal authority on this subject. No contrary 
rules or procedures are authorized. All VA guidance must be read to 
conform with this rulemaking if possible or, if not possible, such 
guidance is superseded by this rulemaking.

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 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 Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct 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). 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 
``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 rule have been examined and it has been determined 
not to be a significant regulatory action under the Executive Order 
12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this 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 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 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, Department of Veterans Affairs, approved this 
document on November 14, 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, 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.

    Dated: December 14, 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, 38 CFR part 17 is 
amended as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. Amend Sec.  17.120 by:
0
a. Revising the section heading.
0
b. In the introductory text, removing ``care'' and adding, in its 
place, ``emergency treatment'', removing ``medical services'' and 
adding, in its place, ``emergency treatment'', and removing ``may be 
paid'' and adding, in its place, ``will be paid''.
0
c. Revising paragraph (a) introductory text.
0
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).
0
e. In paragraph (a)(4), removing ``Sec.  17.48(j); and'' and adding, in 
its place, ``Sec.  17.47(i)(2);''.
0
f. Revising paragraph (b).
0
g. Revising paragraph (c).
    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.

* * * * *
    (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 medical services, professional services, ambulance 
services, ancillary care and medication (including a short course of 
medication related to and necessary for the treatment of the emergency 
condition that is provided directly to the patient for use after the 
emergency condition is stabilized and the patient is discharged) 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

[[Page 79071]]

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,
    (c) When Federal facilities are unavailable. VA or other Federal 
facilities that VA has an agreement with to furnish health care 
services for veterans were not feasibly available, and an attempt to 
use them beforehand or obtain prior VA authorization for the services 
required would not have been reasonable, sound, wise, or practicable, 
or treatment had been or would have been refused.


0
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 this 
purpose, VA considers that an emergency ends when the designated VA 
clinician at the VA facility has determined that, based on sound 
medical judgment, the veteran who received emergency treatment:
    (1) Could have been transferred from the non-VA facility to a VA 
medical center (or other Federal facility that VA has an agreement with 
to furnish health care services for veterans) for continuation of 
treatment, or
    (2) Could have reported to a VA medical center (or other Federal 
facility that VA has an agreement with to furnish health care services 
for veterans) for continuation of treatment.
    (b) Continued non-emergency treatment. Claims for payment or 
reimbursement of the costs of emergency treatment not previously 
authorized may only be approved for continued, non-emergency 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 that 
VA has an agreement with 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 that VA has an agreement with to furnish health care services 
for veterans), which means 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-emergency treatment refuses to be transferred to an 
available VA facility (or other Federal facility that VA has an 
agreement with 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 refusal of transfer by the veteran.

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



0
4. Revise paragraph (d) of Sec.  17.1001 to read as follows:


Sec.  17.1001  Definitions.

* * * * *
    (d) The term stabilized means that no material deterioration of the 
emergency medical condition is likely, within reasonable medical 
probability, to occur if the veteran is discharged or transferred to a 
VA or other Federal facility that VA has an agreement with to furnish 
health care services for veterans.
* * * * *

0
5. Amend Sec.  17.1002 by:
0
a. Revising the introductory text.
0
b. Revising paragraph (c).
0
c. Removing paragraph (d).
0
d. 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 (including medical services, professional services, ambulance 
services, ancillary care and medication (including a short course of 
medication related to and necessary for the treatment of the emergency 
condition that is provided directly to the patient for use after the 
emergency condition is stabilized and the patient is discharged)) will 
be made only if all of the following conditions are met:
* * * * *
    (c) A VA or other Federal facility/provider that VA has an 
agreement with to furnish health care services for veterans was not 
feasibly available and an attempt to use them beforehand would not have 
been considered reasonable by a prudent layperson (as an example, these 
conditions would be met by evidence establishing that a veteran was 
brought to a hospital in an ambulance and the ambulance personnel 
determined the nearest available appropriate level of care was at a 
non-VA medical center);
* * * * *


0
6. 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 this purpose, 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 who received emergency treatment:
    (1) Could have been transferred from the non-VA facility to a VA 
medical center (or other Federal facility that VA has an agreement with 
to furnish health care services for veterans) for continuation of 
treatment, or
    (2) Could have reported to a VA medical center (or other Federal 
facility that VA has an agreement with to furnish health care services 
for veterans) for continuation of treatment.
    (c) Claims for payment or reimbursement of the costs of emergency 
treatment not previously authorized may be approved for continued, non-
emergency treatment, only 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 that 
VA has an agreement with 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 
that VA has an agreement with to furnish health care services for 
veterans), which means 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.

[[Page 79072]]

    (d) If a stabilized veteran who requires continued non-emergency 
treatment refuses to be transferred to an available VA facility (or 
other Federal facility that VA has an agreement with 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 refusal of 
transfer by the veteran.
* * * * *


Sec.  17.1006  [Amended]

0
7. 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]

0
8. Amend Sec.  17.1008 by removing ``treatment'' in both places it 
appears, and adding, in each place, ``treatment and any non-emergency 
treatment that is authorized under Sec.  17.1005(c) of this part''.

[FR Doc. 2011-32413 Filed 12-16-11; 8:45 am]
BILLING CODE 8302-01-P