[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Rules and Regulations]
[Pages 13195-13198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5354]



38 CFR Part 17

RIN 2900-AO26

Exempting In-Home Video Telehealth From Copayments

AGENCY: Department of Veterans Affairs.

ACTION: Direct final rule.


SUMMARY: The Department of Veterans Affairs (VA) is taking final action 
to amend its regulation that governs VA services that are not subject 
to copayment requirements for inpatient hospital care or outpatient 
medical care.

[[Page 13196]]

Specifically, the regulation is amended to exempt in-home video 
telehealth care from having any required copayment. This removes a 
barrier that may have previously discouraged veterans from choosing to 
use in-home video telehealth as a viable medical care option. In turn, 
VA hopes to make the home a preferred place of care, whenever medically 
appropriate and possible.

DATES: This final rule is effective May 7, 2012, without further 
notice, unless VA receives relevant adverse comments by April 5, 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 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-AO26--Exempting In-home Video Telehealth from 
Copayments.'' 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 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: Many of our nation's veterans must travel 
great distances in order to obtain health care at a VA hospital or 
medical center. To improve veterans' access to VA health care, VA 
established community-based outpatient clinics (CBOCs) located in local 
communities. VA has continued its efforts to improve veterans' access 
to VA medical care by establishing ``telehealth'' services. Telehealth 
allows VA to provide certain medical care without requiring the veteran 
to be physically present with the examining or treating medical 
professional. Telehealth helps ensure that veterans are able to get 
their care in a timely and convenient manner by reducing burdens on the 
patient as well as appropriately reducing the utilization of VA 
resources without sacrificing the quality of care provided. The 
benefits of using this technology include increased access to 
specialist consultations, improved access to primary and ambulatory 
care, reduced waiting times, and decreased veteran travel.
    VA provides various telehealth services, including clinical video 
telehealth and in-home video telehealth care. Clinical video 
telehealth, as the name implies, occurs between two clinical settings, 
such as two VA Medical Centers (VAMCs), a VAMC and a CBOC, or two 
CBOCs. Clinical video telehealth may also connect patient and provider 
between VAMCs and VA Centers of Specialized Care, such as those 
established for Spinal Cord Injury (SCI), Traumatic Brain Injury (TBI) 
and Multiple Sclerosis (MS). Clinical video telehealth uses real-time 
interactive video conferencing, sometimes with supportive peripheral 
devices, such as a camera to closely examine skin. This allows a 
specialist located in another facility to assess and treat a veteran by 
providing care remotely.
    Like clinical video telehealth, in-home video telehealth care is 
used to connect a veteran to a VA health care professional using real-
time videoconferencing, and other equipment as necessary, as a means to 
replicate aspects of face-to-face assessment and care delivery that do 
not require the health care professional to make an examination 
requiring physical contact. However, in-home video telehealth care is 
provided in a veteran's home, eliminating the need for the veteran to 
travel to a clinical setting. Using telehealth capabilities, a VA 
clinician can assess elements of a patient's care, such as wound 
management, psychiatric or psychotherapeutic care, exercise plans, and 
medication management. The clinician may also monitor patient self-care 
by reviewing vital signs and evaluating the patient's appearance on 
    Prior to this rulemaking, veterans have been required to pay a 
copayment for in-home video telehealth care. We believe that VA has 
authority by statute to discontinue charging copayments for these 

    Section 1710(g)(1) of 38 U.S.C. states:

    The Secretary may not furnish medical services (except if such 
care constitutes hospice care) under subsection (a) of this section 
(including home health services under section 1717 of this title) to 
a veteran who is eligible for hospital care under this chapter by 
reason of subsection (a)(3) of this section unless the veteran 
agrees to pay to the United States in the case of each outpatient 
visit the applicable amount or amounts established by the Secretary 
by regulation.

VA has interpreted section 1710(g)(1) to mean that VA has the 
discretion to establish the applicable copayment amount in regulation, 
even if such amount is zero. One such implementing regulation is 38 CFR 

    Generally, VA calculates the amount of a copayment based on the 
complexity of care provided and the resources needed to provide that 
care. In addition, VA may exempt certain care from the copayment 
requirement in an effort to make health care more accessible to 
veterans, or to encourage veterans to become more actively involved in 
their medical care, and thereby improve health care outcomes (which, in 
turn, lowers overall health care costs). VA has determined that in-home 
video telehealth care should be exempt from copayments because it is 
not used to provide complex care and its use significantly reduces 
impact on VA resources compared to an in-person, outpatient visit. It 
also reduces any potential negative impact on the veteran's health that 
might be incurred if the veteran were required to travel to a VA 
hospital or medical center to obtain the care provided via in-home 
video telehealth. VA also wants to encourage veterans to use the in-
home video telehealth care option when their provider finds it 
appropriate because we believe that it will help ensure that veterans 
comply with outpatient treatment plans by regularly following up with 
physicians and medical professionals, taking medication in appropriate 
doses on a regular basis, and generally being more engaged with their 
VA health care providers.
    As previously stated in this rulemaking, in-home video telehealth 
allows a VA clinician to assess the elements of a veteran's care, while 
the veteran remains at home. Conversely, clinical video telehealth 
assess the veteran's medical condition in a clinical setting using 
resources and technology that allows a medical specialist, who may be 
hundreds of miles away, to interact with the veteran and provide the 
level of care needed to treat the medical condition. VA will not exempt 
clinical video telehealth services from the copayment requirement 
because the type of care a veteran receives in clinical video 
telehealth requires not just the use of CBOC's technological resources, 
but also patient interaction between the attending physician that may 
be hundreds of miles away, and the medical staff in the CBOC. The 
attending medical staff in the CBOC follows the attending physician's 
instructions in the placement of the adapted equipment that is used in 
clinical video telehealth in order to assess the veteran's medical 

[[Page 13197]]

to include the set up of the conference, use of the teleconference 
room, etc. All of these additional services provide a veteran a higher 
level of care than the level of care that the veteran receives through 
in-home video telehealth.
    Paragraph (e) of Sec.  17.108 contains a list of services that are 
not subject to copayment requirements for inpatient hospital care or 
outpatient medical care.
    Based on the rationale set forth in this preamble, VA amends Sec.  
17.108(e) by adding a new paragraph (e)(16) to include in-home video 
telehealth care as exempt from copayment requirements.

Administrative Procedure Act

    VA anticipates that this non-controversial rule will not result in 
adverse or negative comment and, therefore, is issuing it as a direct 
final rule. Previous actions of this nature, which remove restrictions 
on VA medical benefits to improve health outcomes, have not been 
controversial and have not resulted in significant adverse comments or 
objections. However, in the ``Proposed Rules'' section of this Federal 
Register publication we are publishing a separate, substantially 
identical proposed rule document that will serve as a proposal for the 
provisions in this direct final rule if significant adverse comments 
are filed. (See RIN 2900-AO27).
    For purposes of the direct final rulemaking, a significant adverse 
comment is one that explains why the rule would be inappropriate, 
including challenges to the rule's underlying premise or approach, or 
why it would be ineffective or unacceptable without change. If 
significant adverse comments are received, VA will publish a notice of 
receipt of significant adverse comments in the Federal Register 
withdrawing the direct final rule.
    Under direct final rule procedures, unless significant adverse 
comments are received within the comment period, the regulation will 
become effective on the date specified above. After the close of the 
comment period, VA will publish a document in the Federal Register 
indicating that no adverse comments were received and confirming the 
date on which the final rule will become effective. VA will also 
publish a notice withdrawing the proposed rule, RIN 2900-AO27.
    In the event the direct final rule is withdrawn because of receipt 
of significant adverse comments, VA can proceed with the rulemaking by 
addressing the comments received and publishing a final rule. The 
comment period for the proposed rule runs concurrently with that of the 
direct final rule. Any comments received under the direct final rule 
will be treated as comments regarding the proposed rule. Likewise, 
significant adverse comments submitted to the proposed rule will be 
considered as comments to the direct final rule. VA will consider such 
comments in developing a subsequent final rule.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
rulemaking, represents VA's implementation of its legal authority on 
this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

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-

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
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 rulemaking will not directly affect any small 
entities. Only VA beneficiaries will be directly affected. 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.

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 final 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: 64.007 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; and 64.022, Veterans Home Based Primary 

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 February 28, 2012, for publication.

[[Page 13198]]

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Health care, Health 
facilities, Mental health programs, Nursing homes, Veterans.

    Dated: March 1, 2012.
Robert C. McFetridge,
Director, Office of Regulation Policy and Management, Office of the 
General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, we are amending 38 CFR 
part 17 as follows:


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.  17.108 by adding paragraph (e)(16) to read as follows:

Sec.  17.108  Copayments for inpatient hospital care and outpatient 
medical care.

* * * * *
    (e) * * *
    (16) In-home video telehealth care.
* * * * *
[FR Doc. 2012-5354 Filed 3-5-12; 8:45 am]