[Federal Register Volume 78, Number 77 (Monday, April 22, 2013)]
[Proposed Rules]
[Pages 23702-23704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09396]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AO59


Copayment for Extended Care Services

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend how 
VA determines the ``spousal resource protection amount,'' which is the 
amount of liquid assets of a veteran and community (i.e., not 
institutionalized) spouse that is considered unavailable when 
calculating the veteran's maximum monthly copayment obligation for 
extended care services longer than 180 days. This proposed rule would 
define the ``spousal resource protection amount'' by reference to the 
Maximum Community Spouse Resource Standard, which is published each 
year by the Centers for Medicare and Medicaid Services (CMS) and is 
adjusted annually based on the Consumer Price Index. This change would 
have the immediate effect of increasing the spousal resource protection 
amount from $89,280 to $115,920, and would ensure that the spousal 
resource protection amount stays consistent with the comparable 
protection for the spouses of Medicaid recipients.

DATES: Comments must be received on or before June 21, 2013.

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 Avenue 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-AO59--Copayment for Extended Care 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 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 Avenue NW., Washington, DC 20420; (202) 461-1599. (This is 
not a toll-free number.)

SUPPLEMENTARY INFORMATION: Certain veterans who receive more than 21 
days of extended care services provided or paid for by VA are liable 
for copayments for the care they receive. Section 1710B(d)(2) of title 
38, United States Code, requires VA to develop a methodology to 
determine the amount of those copayments. The methodology must 
establish a maximum monthly copayment based on the income and assets of 
the veteran and the veteran's spouse, and must protect the spouse of a 
veteran from financial hardship by excluding some of the income and 
assets of the veteran and spouse from the copayment obligation.
    VA established its methodology in 38 CFR 17.111. Under the current 
rule, veterans who are subject to copayment obligations must pay $5 to 
$97 per day, depending on the type of extended care received, up to the 
maximum monthly copayment amount. Married veterans who receive over 180 
days of extended care and who have a spouse residing in the community 
are eligible for spousal resource protection. The spousal resource 
protection excludes a certain amount of the veteran's and spouse's 
liquid assets, the ``spousal resource protection amount,'' from 
consideration in determining a veteran's maximum copayment obligation. 
Thus, a higher spousal resource protection amount provides greater 
benefit to the veteran and spouse because it increases the portion of 
the family's liquid assets that

[[Page 23703]]

are available for expenses other than copayments.
    Under current Sec.  17.111(d)(2)(vi), the ``spousal resource 
protection amount'' is the total value of the veteran's and spouse's 
liquid assets up to $89,280. This figure was derived from the 
comparable Medicaid spousal allowance, the Maximum Community Spouse 
Resource Standard, in effect when we promulgated Sec.  
17.111(d)(2)(vi). The comparable Medicaid provisions, known as the 
spousal impoverishment provisions, were enacted by Congress in 1988 to 
protect married couples from having to deplete their combined savings 
before Medicaid would pay for certain long-term care services. Under 
these provisions, states participating in Medicaid are required to 
protect a certain amount of the couple's combined resources within 
federally mandated Minimum and Maximum Community Spouse Resource 
Standards. To keep pace with inflation, these standards are determined 
annually based on the Consumer Price Index. The Maximum Community 
Spouse Resource Standard in effect on the date of this proposed rule is 
$115,920.
    By contrast, VA's current definition of the spousal resource 
protection amount has no provision to allow for automatic annual 
adjustments, and we have not amended the amount since the final rule 
was published on July 1, 2004 (69 FR 39845). To ensure that a veteran's 
spouse living in the community is able to maintain sufficient liquid 
assets while the veteran is receiving extended care services for longer 
than 180 days, we propose to amend paragraph (d)(2)(vi) to provide that 
the spousal resource protection amount be adjusted annually based on 
the Maximum Community Spouse Resource Standard. This would ensure that 
the spousal resource protection amount accounts for inflation and is 
consistent with the comparable protections for spouses of Medicaid 
recipients.
    We note that in implementing CMS' standards, many states chose to 
adopt the Maximum Community Spouse Resource Standard amount, providing 
recipients with the maximum possible protection. Others selected the 
Minimum Community Resource Standard amount, giving recipients that 
amount of protection and no more. When we initially proposed defining 
``spousal resource protection amount'' on October 16, 2003 (68 FR 
59557), at least 23 State Medicaid Programs used $89,280 as the 
benchmark for protecting spousal assets for Medicaid purposes. This 
figure was the Maximum Community Spouse Resource Standard in effect at 
that time.
    We adopted the Maximum Community Spouse Resource Standard in 
response to the statutory mandate that the methodology we develop for 
establishing copayment amounts for extended care services must protect 
the spouse of a veteran from financial hardship by not counting all of 
the income and assets of the veteran and spouse. 38 U.S.C. 
1710B(d)(2)(B). Veterans and their non-institutionalized spouses would 
still benefit if VA chose a lower number for the spousal resource 
protection amount, but this would result in a lesser degree of liquid 
asset protection than that realized by many similarly situated spouses 
of non-veterans applying for Medicaid benefits for certain long-term 
care services outside of VA.
    Community spouses (spouses who are not institutionalized) must 
maintain a separate residence, and they have daily living expenses 
separate and apart from those attributable to the veteran receiving 
extended care services. It is important that the spouses be able to 
maintain assets for these expenses. VA believes that the Maximum 
Community Spouse Resource Standard remains the appropriate benchmark 
for determining the spousal resource protection amount.
    Although VA always applied the $89,280 amount in the current rule, 
the rule actually defines the spousal resource protection amount as the 
value of liquid assets ``not to exceed'' $89,280 if the spouse is not 
institutionalized. This places a ceiling on the value of liquid assets 
that can be retained but does not set a floor, a minimum amount below 
which the spousal resource protection amount cannot fall. This could be 
interpreted to mean that VA may choose to assign a lesser dollar value 
as the spousal resource protection amount. VA believes that this 
creates an unacceptable degree of uncertainty for veterans utilizing 
extended care services as well as spouses living in the community. To 
address this issue, we propose to amend the definition of the spousal 
resource protection amount to state that it will be equal to the 
Maximum Community Spouse Resource Standard published by the CMS as of 
January 1 of the current calendar year if the spouse is residing in the 
community (not institutionalized).
    VA believes that the proposed changes to paragraph (d)(2)(vi)--
defining the spousal resource protection amount as equal to the Maximum 
Community Resource Amount published by the CMS, and ensuring that this 
amount adjusts annually--will provide a greater deal of protection to 
the veteran and the non-institutionalized spouse during a change in 
circumstances that can place financial strains on the family. Further, 
VA believes that these proposed changes will eliminate any uncertainty 
that may exist regarding the value of liquid assets that may be 
retained by the non-institutionalized spouse.
    In addition to the above, we propose to remove Sec.  17.111(g), 
which consists entirely of a copy of VA Form 10-10EC, Application for 
Extended Care Services. The form is readily available to veterans both 
in hard copy and electronically, and we do not believe that the public 
uses or relies on the reprint of this form in the Code of Federal 
Regulations. Moreover, the process of amending a regulation can be 
lengthy. If amendments are required to the form, the reprint of it in 
paragraph (g) may be out of date for some period of time while the 
regulation is updated through the regulatory process. In short, we no 
longer believe it is useful to include forms in our regulations.

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 proposed rulemaking if 
possible or, if not possible, such guidance would be 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 they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This proposed rule would directly affect only 
individuals and would not directly affect small entities. Therefore, 
pursuant to 5 U.S.C. 605(b), this rulemaking 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

[[Page 23704]]

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), 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 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 the 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 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; 64.014, Veterans 
State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 
64.016, Veterans State Hospital 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. Jose D. 
Riojas, Interim Chief of Staff, Department of Veterans Affairs, 
approved this document on April 11, 2013 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, Medical and 
Dental schools, Medical devices, Medical research, Mental health 
programs, Nursing homes, Reporting and recordkeeping requirements, 
Travel and transportation expenses, Veterans.

    Dated: April 17, 2013 .
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of 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 set forth below:

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.  17.111 by:
0
a. Revising paragraph (d)(2)(vi).
0
b. Removing paragraph (g).
    The revision reads as follows:


Sec.  17.111  Copayments for extended care services.

* * * * *
    (d) * * *
    (2) * * *
    (vi) Spousal resource protection amount means the value of liquid 
assets equal to the Maximum Community Spouse Resource Standard 
published by the Centers for Medicare and Medicaid Services (CMS) as of 
January 1 of the current calendar year if the spouse is residing in the 
community (not institutionalized).
* * * * *
[FR Doc. 2013-09396 Filed 4-19-13; 8:45 am]
BILLING CODE 8320-01-P