[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Proposed Rules]
[Pages 70967-70969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28776]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AO46


Authorization for Non-VA Medical Services

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulation governing payment by VA for non-VA outpatient care under 
VA's statutory authority to provide non-VA care. Under this authority, 
VA may contract for certain hospital care (inpatient care) and medical 
services (outpatient care) for eligible veterans when VA facilities are 
not capable of providing such services due to geographical 
inaccessibility or are not capable of providing the services needed. 
This proposed amendment would revise VA's existing regulation in 
accordance with statutory authority to remove a limitation on which 
veterans are eligible for medical services under this authority.

DATES: VA must receive comments on or before December 28, 2012.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulation Policy and Management (02REG), Department of Veterans 
Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by 
fax to (202) 273-9026. This is not a toll-free number. Comments should 
indicate that they are submitted in response to ``RIN 2900-AO46--
Authorization for Non-VA Medical Services.'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1068, between the hours of 8:00 
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.

[[Page 70968]]


FOR FURTHER INFORMATION CONTACT: Lisa Brown, Chief, Policy Management 
Department, Department of Veterans Affairs, Chief Business Office, 
Purchased Care, 3773 Cherry Creek North Drive, Suite 450, Denver, CO 
80209 at (303) 331-7829. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: Over the past two decades, the healthcare 
industry has increasingly emphasized providing care in the least 
restrictive environment. Care that was provided in hospitals is now 
provided with a full range of outpatient and ambulatory care options 
previously unavailable. VA has adopted this trend toward outpatient and 
ambulatory care and, whenever possible, provides treatment options to 
veterans in these less restrictive modes of healthcare delivery. 
Although VA has made great strides to expand the delivery of healthcare 
to veterans, VA is, like the rest of the healthcare industry, 
economically unable to provide all possible services at all VA-operated 
venues of care. VA addresses this in part by authorizing non-VA care 
when necessary to meet the veteran's plan of care.
    VA uses the authority in 38 U.S.C. 1703 to provide certain hospital 
care and medical services to eligible veterans when VA facilities are 
not capable of providing such services due to geographical 
inaccessibility or are not capable of providing the services needed, 
ensuring the continuity of care for the patient and the maximization of 
healthcare resources. VA may use this authority to provide needed non-
VA care using community resources, such as private physicians or 
community hospitals. Care provided under VA's authority in 38 U.S.C. 
1703 is usually referred to as the Non-VA Care program. Non-VA care 
enables VA to maximize resources and available options for patient care 
at the local level, providing care in the least restrictive mode 
possible and closer to the patient's home.
    Public Law 104-262, 104(b)(2)(B) amended 38 U.S.C. 1703(a)(2)(B) to 
expand VA's authority to provide non-VA medical services under the non-
VA care authority. As amended, the law authorizes VA to provide such 
medical services for a veteran who has been furnished hospital care, 
nursing home care, domiciliary care, or medical services and who 
requires medical services to complete treatment incident to such care 
or services.
    At present, 38 CFR 17.52(a)(2)(ii) provides that ``[a] veteran who 
has received VA inpatient care for treatment of nonservice-connected 
conditions for which treatment was begun during the period of inpatient 
care'' is eligible for non-VA medical services under the non-VA care 
authority. The existing VA regulation does not reflect the amendment 
made by Public Law 104-262 to 38 U.S.C. 1703(a)(2)(B). This VA 
regulation thus does not permit VA to complete a veteran's treatment 
through non-VA providers under the non-VA care authority unless the VA 
treatment was begun during a period of hospitalization.
    VA proposes to amend 38 CFR 17.52(a)(2)(ii) to reflect the current 
statutory authority found at 38 U.S.C. 1703(a)(2)(B). In doing so, VA 
would increase the availability of care in areas where VA cannot 
directly provide the care. Proposed paragraph (a)(2)(ii) of this 
revised regulation would provide that veterans who have been furnished 
hospital care, nursing home care, domiciliary care, or medical 
services, and who require medical services to complete treatment 
incident to such care or services, would be eligible for non-VA medical 
services under the non-VA care authority. By expanding veterans' 
eligibility for non-VA care, VA would be able to better utilize 
resources and enhance patient care at the local level. This regulation 
would give VA greater flexibility to refer patients for care in the 
least restrictive and most convenient setting.
    This revision to Sec.  17.52(a)(2)(ii) would clarify the time 
period during which veterans are eligible to receive non-VA care to 
complete their treatments. Currently, Sec.  17.52(a)(2)(ii) states that 
the non-VA care treatment period, which includes ``care furnished in 
both facilities of VA and non-VA facilities or any combination of such 
modes of care,'' is limited to no more than 12 months after the veteran 
is discharged from the hospital, unless VA determines that the veteran 
requires continued non-VA care ``by virtue of the disabilities being 
treated.'' This revision would clarify that each authorization for non-
VA care needed to complete treatment may continue for up to 12 months, 
and that VA may issue new authorizations as needed. The requirement to 
issue a new authorization would give VA an opportunity to determine 
whether non-VA care continues to be the appropriate means of providing 
the veteran's treatment.
    We note that this proposed amendment would only affect the 
eligibility of certain veterans for medical services provided by a non-
VA provider under the non-VA care authority in 38 U.S.C. 1703; this 
proposed amendment would not require providers outside of VA to accept 
VA patients. We also note that this proposed amendment would not affect 
other provisions in this regulation that specify veterans' eligibility 
for non-VA care.

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. (See RIN 2900-AO47.) 
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 
any significant adverse comment.
    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 VA 
receives a significant adverse comment, VA will publish a notice of 
receipt of a significant adverse comment in the Federal Register and 
withdraw the direct final rule.
    Under direct final rule procedures, if no significant adverse 
comment is received within the comment period, the direct final rule 
will become effective on the date specified in RIN 2900-AO47. After the 
close of the comment period, VA will publish a document in the Federal 
Register indicating that VA received no significant adverse comment and 
restating the date on which the final rule will become effective. VA 
will also publish a notice withdrawing this proposed rule.
    In the event that VA withdraws the direct final rule because of 
receipt of any significant adverse comment, VA will proceed with this 
rulemaking by addressing the comments received and publishing a final 
rule. The comment period for this proposed rule runs concurrently with 
that of the direct final rule. VA will treat any comments received in 
response to the direct final rule as comments regarding this proposed 
rule. VA will consider such comments in developing a subsequent final 
rule. Likewise, VA will consider any significant adverse comment 
received in response to the proposed rule as a comment regarding the 
direct final rule. VA has determined that it is not necessary to 
provide a 60-day comment period for this rulemaking that would merely 
align a current regulation with existing statutory authority and make a 
minor modification concerning determination of the time period during 
which veterans are eligible to receive

[[Page 70969]]

non-VA care to complete their treatments. VA has instead specified that 
comments must be received within 30 days of publication in the Federal 
Register.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as proposed to be 
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 proposed rule 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 defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This proposed rule would affect only VA beneficiaries and does not 
affect a substantial number of small entities. Because this proposed 
rule would update an existing regulation to make it consistent with 
existing statutory authority and reflect current and long-standing VA 
practices, VA anticipates no additional expenditures or actions as a 
result of this rule. Therefore, under 5 U.S.C. 605(b), this proposed 
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'' requiring 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 Reform Act

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans 
Prosthetic Appliances; 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 20, 2012, 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, Government programs--veterans, Health care, 
Health facilities, Health professions, Health records, Homeless, Mental 
health programs, Nursing homes, Reporting and recordkeeping 
requirements, Veterans.

    Dated: November 21, 2012.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 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.

    2. Revise Sec.  17.52(a)(2)(ii) to read as follows:


Sec.  17.52  Hospital care and medical services in non-VA facilities.

    (a) * * *
    (2) * * *
    (ii) A veteran who has been furnished hospital care, nursing home 
care, domiciliary care, or medical services, and requires medical 
services to complete treatment incident to such care or services (each 
authorization for non-VA treatment needed to complete treatment may 
continue for up to 12 months, and new authorizations may be issued by 
VA as needed), and
* * * * *
[FR Doc. 2012-28776 Filed 11-27-12; 8:45 am]
BILLING CODE 8320-01-P