[Federal Register Volume 80, Number 79 (Friday, April 24, 2015)]
[Rules and Regulations]
[Pages 22906-22909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09370]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP24


Driving Distance Eligibility for the Veterans Choice Program

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its medical 
regulations implementing section 101 of the Veterans Access, Choice, 
and Accountability Act of 2014, which directed VA to establish a 
program to furnish hospital care and medical services through eligible 
non-VA health care providers to eligible veterans who either cannot be 
seen within the wait-time goals of the Veterans Health Administration 
or who qualify based on their place of residence (hereafter referred to 
as the Veterans Choice Program, or the ``Program''). VA published an 
interim final rule implementing the Veterans Choice Program on November 
5, 2014. Under current law, VA uses a straight-line or geodesic 
distance to determine eligibility based on place of residence. This 
interim final rule modifies how VA measures the distance from a 
veteran's residence to the nearest VA medical facility. This modified 
standard will consider the distance the veteran must drive to the 
nearest VA medical facility, rather than the straight-line or geodesic 
distance to such a facility.

DATES: Effective Date: This rule is effective on April 24, 2015.
    Comment date: Comments must be received on or before May 26, 2015.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to 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. (This is not a toll-free number.) Comments should indicate 
that they are submitted in response to ``RIN 2900-AP24-Driving Distance 
Eligibility for the Veterans Choice Program.'' 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 http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kristin Cunningham, Director, Business 
Policy, Chief Business Office (10NB), Veterans Health Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420, (202) 382-2508. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On August 7, 2014, the President signed into 
law the Veterans Access, Choice, and Accountability Act of 2014 (``the 
Act,'' Pub. L. 113-146, 128 Stat. 1754). Further technical revisions to 
the Act were made on September 26, 2014, when the President signed into 
law the Department of Veterans Affairs Expiring Authorities Act of 2014 
(Pub. L. 113-175, 128 Stat. 1901, 1906), and on December 16, 2014, when 
the President signed into law the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235, 128 Stat. 2568). Section 101 
of the Act creates the Veterans Choice Program (``the Program''). 
Section 101 requires the Secretary to enter into agreements with 
identified eligible non-VA entities or providers to furnish hospital 
care and medical services to eligible veterans who elect to receive 
care under the Program. Sec. 101(a)(1)(A), Public Law 113-146, 128 
Stat. 1754. Veterans are eligible for the Program if they meet 
eligibility criteria identified in the Act; one criterion for 
eligibility is that a veteran who meets initial eligibility standards 
(being enrolled as of August 1, 2014, or who qualifies based on being 
recently separated from the Armed Forces following service in a theater 
of combat operations) can participate in the Program if he or she 
resides more than 40 miles from the medical facility of the Department, 
including a community-based outpatient clinic, that is closest to the 
residence of the veteran. Sec. 101(b)(2)(B), Public Law 113-146, 128 
Stat. 1754. The Act required VA to implement the Program through an 
interim final rule, and on November 5, 2014, the Department of Veterans 
Affairs (VA) published an interim final rulemaking implementing the 
Program by creating new regulations at 38 CFR 17.1500-17.1540. 79 FR 
65571. Under Sec.  17.1510(b)(2), veterans whose residence is more than 
40 miles from the VA medical facility that is closest to the veteran's 
residence are eligible.
    The Act states that a veteran must reside more than 40 miles from 
the medical facility of the Department that is closest to the residence 
of the veteran, but does not state how that distance should be 
calculated. When Congress has not directly addressed the precise 
question at issue--here the method for calculating distance--a Federal 
agency charged with implementing a statute is permitted to make a 
reasonable interpretation of that statute. See Chevron, U.S.A., Inc., 
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 
(1984). Accordingly, VA may, through rulemaking, define the methodology 
it will use to calculate such distances between a veteran's residence 
and the nearest VA medical facility.
    The most common methodologies for calculating the distance between 
two places are by using a straight-line and by following the actual 
driving path between the two points. In the interim final rule 
published in November, VA determined that it would use the straight-
line distance between the

[[Page 22907]]

veteran's residence and the VA medical facility that is closest to the 
veteran's residence. 38 CFR 17.1510(e). We did so consistent with 
language in the Conference Report accompanying the final bill prior to 
its enactment. 79 FR 65577. The Conference Report stated: ``In 
calculating the distance from a nearest VA medical facility, it is the 
Conferees' expectation that VA will use geodesic distance, or the 
shortest distance between two points.'' H.R. Rpt. 113-564, p. 55. The 
shortest distance between two points is a straight line, so VA 
concluded that a veteran who is outside of a 40 mile radius of a VA 
medical facility would be eligible under this provision. 79 FR 65577.
    VA also could have concluded that a driving distance calculation 
would have been a reasonable interpretation of the Act. Although the 
Conference Report language appeared to state the Conferees' 
expectation, other statements in the legislative history suggest 
Congress was not of one mind regarding how the 40 miles should be 
measured. For example, during the Senate floor debate on the final 
legislation just three days after the Conference Report was published, 
one of the bill's principal sponsors stated, ``Mr. President, what we 
are talking about, really, is rather than get in a car or van and drive 
for 40 miles and hours and have that all reimbursed and paid for, a 
person will go to the local care provider.'' See 160 Cong. Rec. S5207 
(July 31, 2014). In addition, the overall purpose of the Act is to 
increase access to health care for veterans. As one of the Act's main 
sponsors in the House said during floor consideration of the bill, 
``This bill will expand access to non-VA care, making wait times 
shorter and increase convenience.'' See 160 Cong. Rec. H7080 (July 30, 
2014). Moreover, what affects a veteran's access when it comes to 
travel is how far he or she must actually travel, not the length of a 
straight-line route that cannot, practically speaking, be traversed. 
Distances are also more commonly understood in terms of travel upon 
actual paths, rather than along a straight line. For these reasons, the 
ordinary understanding of distance is also a reasonable one to adopt in 
this context.
    This interpretation also makes sense in light of the exceptions 
Congress created for veterans residing 40 miles or less from the 
nearest VA medical facility. For example, under Sec. 
101(b)(2)(D)(ii)(I), veterans are eligible if they must travel by air, 
boat, or ferry to reach each VA medical facility that is 40 miles or 
less from the residence of the veteran. Veterans also may be eligible 
under Sec. 101(b)(2)(D)(ii)(II) if they face an unusual or excessive 
burden in accessing each VA medical facility that is 40 miles or less 
from the residence of the veteran due to geographical challenges. Both 
of these criteria explicitly consider the actual means or path of 
travel a veteran must take. Consequently, it is reasonable for VA to 
make a similar consideration when determining whether or not a 
veteran's residence is more than 40 miles from the closest VA medical 
facility.
    Finally, when two interpretations of an Act are permissible, the 
interpretation that is more beneficial to veterans is typically 
preferred.
    We received many thoughtful comments on this topic in response to 
the interim final rule we published in November. More than a third of 
the comments we received related to how VA measures distance for 
purposes of determining eligibility, and many commenters specifically 
argued in favor of the use of driving distance to determine eligibility 
based on place of residence. Other commenters suggested similar 
changes, such as the use of driving time. These comments came from 
veterans as well as providers, and show a broad interest in expanding 
the Program to better facilitate health care options. By contrast, VA 
received no comments in support of the use of geodesic or straight-line 
distance. This indicated to us a need to revisit VA's method of 
measuring distance. After doing so, VA is issuing this new interim 
final rule adopting the use of driving distance when measuring the 
distance from a veteran's residence to the nearest VA medical facility. 
We believe based on the public comments we received in response to the 
interim final rule published in November that this change to a driving 
distance measure will have strong support from the public. We intend to 
address all of the comments prior to finalizing the rule but have 
decided to address this particular issue now.
    Practical considerations also support promulgating a limited 
interim final rule addressing this issue now. The use of driving 
distance would result in more veterans being eligible than the use of 
straight-line distance, and as stated above, the general intent of the 
Act is to expand access to health care for veterans. Through the first 
6 months of operating the Program, we have found this standard to be a 
limiting factor for participation in the Program. Actual utilization of 
the Program is well below projections made at the time of the interim 
final rule in November, and as a result, VA believes it is more likely 
to have additional resources remaining at the end of the Program's 
period of authorization unless we increase the population eligible to 
participate in the Program. While veterans could qualify for this 
Program under other eligibility criteria, 38 CFR 17.1510(b)(3)-(4), 
changing the methodology for calculating distance to driving distance 
rather than straight-line distance will allow more veterans to 
participate in the Program and receive care closer to home. VA also 
uses driving distance in the beneficiary travel program authorized by 
part 70 of title 38 of the Code of Federal Regulations. This change 
would make the Program more consistent with another VA program that 
veterans know and use.
    For these reasons, we are revising the method for calculating the 
40 mile distance by modifying Sec.  17.1510(e) to use the driving 
distance between the veteran's residence and the closest VA medical 
facility, rather than the straight-line distance. VA is also removing a 
parenthetical exception included in this paragraph that referred to a 
provision in the regulations pertaining to unusual or excessive burden 
in traveling to a VA medical facility. VA will calculate a veteran's 
driving distance using geographic information system (GIS) software.
    VA is issuing this interim final rule under the same RIN as the 
initial rulemaking published on November 5, 2014. We intend to publish 
a single final rule that responds to the comments received from the 
November rulemaking and from this rulemaking. This will allow the 
public a total of 150 days (120 days following publication of the first 
interim final rule, and 30 days following publication of this interim 
final rule) to comment on this aspect of the Program.
    This change will have residual effects on eligibility under Sec.  
17.1510(b)(3) and (b)(4), as these provisions are essentially 
exceptions that allow veterans who are not eligible under paragraph 
(b)(2) to be eligible to participate in the Choice Program. However, to 
the extent a veteran will now be eligible under paragraph (b)(2) when 
he or she would have qualified under paragraphs (b)(3) or (b)(4), there 
is no substantive change in that veteran's ability to participate in 
the Program or the benefits thereof. However, certain veterans who did 
not currently qualify under (b)(2), (b)(3), or (b)(4) may now qualify 
under (b)(2) as a result of this change.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds under 5 U.S.C. 553(b)(B) 
that there is good cause that advance notice and opportunity for public 
comment are impracticable, unnecessary, or contrary to the public 
interest and under 5 U.S.C.

[[Page 22908]]

553(d)(3) that there is good cause to publish this rule with an 
immediate effective date. Section 101(n) of the Act authorized VA to 
implement the Program through an interim final rule and provided a 
deadline of no later than November 5, 2014, the date that is 90 days 
after the date of the enactment of the law. We do not interpret the 
expiration of the 90 day time period as diminishing or divesting VA of 
its authority to continue to implement the Program through an interim 
final rule. Section 101(n) of the Act clearly demonstrates Congress 
intended that VA act quickly in expanding access to non-VA care 
options.
    This interim final rule changes the manner in which VA will 
calculate the distance requirement and will likely increase the number 
of veterans who are eligible for the program. Veterans who did not 
qualify under the straight-line methodology we previously articulated 
may qualify under the standard we are now establishing. In order for 
these veterans to have access to needed health care under the Program, 
it is essential that the revised driving distance requirement be made 
effective as soon as possible.
    For the above reasons, the Secretary issues this rule as an interim 
final rule. However, VA will consider and address comments that are 
received within 30 days of the date this interim final rule is 
published in the Federal Register. As noted previously, the public has 
already had 120 days to comment on the methodology for calculating 
distance following the publication of the November rulemaking, and we 
believe the additional 30 days provided now will be sufficient to 
ensure the public has an opportunity to be heard on this issue.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
interim final 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 interim final rule contains no provisions constituting a 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521).

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), 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 that this is an economically significant regulatory 
action under Executive Order 12866. VA's regulatory impact analysis can 
be found as a supporting document at http://www.regulations.gov, 
usually within 48 hours after the rulemaking document is published. 
Additionally, a copy of the rulemaking and its regulatory impact 
analysis are available on VA's Web site at http://www.va.gov/orpm/, by 
following the link for ``VA Regulations Published From FY 2004 Through 
Fiscal Year to Date.''

Congressional Review Act

    This regulatory action is a major rule under the Congressional 
Review Act, 5 U.S.C. 801-08, because it may result in an annual effect 
on the economy of $100 million or more. Although this regulatory action 
constitutes a major rule within the meaning of the Congressional Review 
Act, 5 U.S.C. 804(2), under 5 U.S.C. 808(2) it is not subject to the 
60-day delay in effective date applicable to major rules under 5 U.S.C. 
801(a)(3) because the Secretary finds for the reasons stated above good 
cause that advance notice and public procedure for this rule are 
impractical, unnecessary, and contrary to the public interest. In 
accordance with 5 U.S.C. 801(a)(1), VA will submit to the Comptroller 
General and to Congress a copy of this regulatory action and VA's 
Regulatory Impact Analysis.

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 1 year. This interim final rule will have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim final rule 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 interim final rule will not have a significant 
economic impact on participating eligible entities and providers who 
enter into agreements with VA. To the extent there is any such impact, 
it will result in increased business and revenue for them. We also do 
not believe there will be a significant economic impact on insurance 
companies, as claims will only be submitted for care that will 
otherwise have been received, whether such care was authorized under 
this Program or not. Therefore, pursuant to 5 U.S.C. 605(b), this 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of 5 U.S.C. 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document 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; 
64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 
64.013, Veterans Prosthetic Appliances; 64.014, Veterans State 
Domiciliary Care; 64.015, Veterans State

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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, Chief of Staff, Department of Veterans Affairs, approved this 
document on April 2, 2015, 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, Mental health 
programs, Nursing homes, Reporting and recordkeeping requirements, 
Travel and transportation expenses, Veterans.

    Dated: April 17, 2015.
Michael Shores,
Chief Impact Analyst, Office of Regulation Policy & Management, Office 
of the General Counsel, U.S. Department of Veterans Affairs.

    For the reasons set out in the preamble, VA amends 38 CFR part 17 
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.  17.1510 by revising paragraph (e) to read as follows:


Sec.  17.1510  Eligible veterans.

* * * * *
    (e) For purposes of calculating the distance between a veteran's 
residence and the nearest VA medical facility under this section, VA 
will use the driving distance between the nearest VA medical facility 
and a veteran's residence. VA will calculate a veteran's driving 
distance using geographic information system software.
* * * * *
[FR Doc. 2015-09370 Filed 4-23-15; 8:45 am]
 BILLING CODE 8320-01-P