[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Proposed Rules]
[Pages 13236-13238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5355]



38 CFR Part 17

RIN 2900-AO27

Exempting In-Home Video Telehealth From Copayments

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.


SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its regulation that governs VA services that are not subject to 
copayment requirements for inpatient hospital care or outpatient 
medical care. Specifically, the regulation would be amended to exempt 
in-home video telehealth care from having any required copayment. This 
would remove 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: Written comments must be received on or before 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-AO27]-- 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 proposed 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 proposes to make in-home 
video telehealth care 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 that would be 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 would 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.

[[Page 13237]]

    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 would 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 condition, 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 proposes to 
amend 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

    Concurrent with this proposed rule, we also are publishing a 
separate, substantively identical direct final rule in the ``Rules and 
Regulations'' section of this Federal Register. The simultaneous 
publication of these documents will speed notice and comment rulemaking 
under section 553 of the Administrative Procedure Act should we have to 
withdraw the direct final rule due to receipt of significant adverse 
    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 this proposed rule.
    In the event the direct final rule is withdrawn because 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. VA will 
consider such comments in developing a subsequent final rule. Likewise, 
significant adverse comments submitted to the proposed rule will be 
considered as comments regarding the direct final rule.

Effect of Rulemaking

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

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 proposed regulatory 
amendment 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 rulemaking would not directly 
affect any small entities. Only VA beneficiaries would be directly 
affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment would 
be 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 proposed rule would have no such 
effect on State, local, or tribal governments, or on the private 

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program number and title 
for this proposed 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,

[[Page 13238]]

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 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 February 28, 2012, for publication.

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 propose to amend 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 

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

* * * * *
    (e) * * *
    (16) In-home video telehealth care.
* * * * *
[FR Doc. 2012-5355 Filed 3-5-12; 8:45 am]