[Federal Register Volume 80, Number 143 (Monday, July 27, 2015)]
[Proposed Rules]
[Pages 44318-44320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18331]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP34


Payment of Emergency Medication by VA

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
medical regulations that govern reimbursement of emergency treatment 
provided by non-VA medical care providers. VA proposes to clarify its 
regulations insofar as it involves the reimbursement of medications 
prescribed or provided to the veteran during the episode of non-VA 
emergency treatment.

DATES: Comments must be received by VA on or before September 25, 2015.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: 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 telephone number.) Comments should 
indicate that they are submitted in response to ``RIN 2900-AP34-Payment 
of Emergency Medication by VA.'' 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 telephone 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 J. Cunningham, Director, 
Business Policy, Chief Business Office (10NB6), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., 
Washington, DC 20420; (202) 382-2508. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: VA is authorized under 38 U.S.C. 1725 to 
reimburse an eligible veteran (or the provider of the emergency 
treatment or another person or entity who paid such expenses on the 
veteran's behalf) for the reasonable value of emergency treatment 
furnished to the Veteran at a non-VA medical facility. Under 38 U.S.C. 
1728, VA is authorized to reimburse eligible veterans (or the provider 
of the emergency treatment or another person or entity who paid such 
expenses on the veteran's behalf) for the customary and usual charges 
of non-VA emergency treatment furnished to the veteran.
    Section 1725 provides that in order for VA to reimburse a veteran 
for the reasonable value of non-VA emergency treatment under that 
section, such veteran must, among other things, be personally liable 
for the emergency treatment received in a non-VA medical facility, be 
enrolled in the VA health care system, and must have received medical 
care under chapter 17 of title 38 U.S.C. within the 24-month period 
prior to the receipt of such emergency

[[Page 44319]]

treatment. Reimbursement is authorized under section 1728 when non-VA 
emergency treatment was rendered to such veteran for: The treatment of 
an adjudicated service-connected disability; a non-service-connected 
disability associated with and held to be aggravating a service-
connected disability; any disability of a veteran if the veteran has a 
total disability permanent in nature from a service-connected 
disability; and for any illness, injury or dental condition if the 
veteran is participating in a vocational rehabilitation program and is 
determined to be in medical need of care or treatment to make possible 
the veteran's entrance into a course of training, or prevent 
interruption of a course of training, or hasten the return to a course 
of training which was interrupted because of such illness, injury, or 
dental condition.
    Current VA regulations implementing 38 U.S.C. 1725 and 1728 each 
state that covered emergency treatment includes ``medication, including 
a short course of medication related to and necessary for the treatment 
of the emergency condition that is provided directly to the patient for 
use after the emergency condition is stabilized and the patient is 
discharged.'' See 38 CFR 17.120(b) and 17.1002. It is undisputed that 
medications directly provided to the veteran or administered to the 
veteran as part of the emergency treatment are covered. However, the 
language ``provided directly to the patient'' has been found to be 
vague inasmuch as it does not clearly indicate that it also extends to 
a short course of necessary medication provided to the veteran by way 
of a prescription that is written or called in to an outpatient or 
commercial pharmacy by the emergency non-VA provider with instructions 
to the veteran-patient to obtain and use the medication post-discharge, 
as directed. We note this issue was not addressed in the original 
rulemakings associated with the implementation of section 1725; it was 
raised however in subsequent amendatory rulemaking in 2011. In 2011, 
final rulemaking for Sec. Sec.  17.120(b) and 17.1002 included changes 
to further define ``emergency treatment.'' Among other things, new 
language was added to Sec. Sec.  17.120(b) and 17.1002 to indicate that 
emergency treatment includes ``medication, including a short course of 
medication related to and necessary for the treatment of the emergency 
condition that is provided directly to the patient for use after the 
emergency condition is stabilized and the patient is discharged.'' It 
was explained that such change merely reflected VA's original intention 
and was done for clarification purposes only, in response to a 
commenter's concerns. See 76 FR 79067, 79069-79070 (Dec. 21, 2011).
    VA has interpreted, and still interprets, emergency treatment, for 
purposes of both Sec. Sec.  17.120 and 17.1002, to extend to situations 
where the veteran receives, during the emergency treatment episode, a 
prescription from the non-VA emergency provider for a short course of 
necessary medication (related to and necessary for treatment of the 
emergency condition post-stabilization) which the veteran-patient is 
directed to obtain post-discharge and use at home as directed. Nor 
should it matter whether the non-VA emergency provider, in the course 
of providing such emergency treatment, provides the prescription in 
writing or, at the request of a patient, calls it into an outpatient or 
commercial pharmacy on the patient's behalf. Again it was never 
intended or contemplated that the language ``directly provided to the 
patient'' would be interpreted to mean only medications actually 
administered to the patient during the emergency treatment episode and 
exclude such related prescriptions. The proposed amendments would be 
consistent with VA policy and would help ensure our regulations are not 
interpreted more narrowly than VA intends (as discussed herein).
    Specifically, we propose to amend Sec.  17.120(b) to clarify that 
VA would reimburse the cost of a short course of medication prescribed 
for the veteran at the time that the veteran was receiving emergency 
treatment, by stating that emergency treatment would include ``a short 
course of medication related to and necessary for the treatment of the 
emergency condition that is provided directly to or prescribed for the 
patient for use after the emergency condition is stabilized and the 
patient is discharged.'' We propose to make similar amendment to the 
introductory paragraph of Sec.  17.1002.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as proposed to be 
revised by this 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 5 U.S.C. 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), 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. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually

[[Page 44320]]

within 48 hours after the rulemaking document is published. 
Additionally, a copy of the rulemaking and its 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.''

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; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 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. Robert L. 
Nabors II, Chief of Staff, Department of Veterans Affairs, approved 
this document on July 20, 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, Health care, Health 
facilities, Health professions, Health records, Homeless, Mental health 
programs, Nursing homes, Veterans.

    Dated: July 22, 2015.
William F. Russo,
Acting Director, Office of Regulation Policy & Management, Office of 
the General Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 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.


Sec.  17.120  [Amended]

0
2. Amend the first sentence of Sec.  17.120(b) by adding ``or 
prescribed for'' immediately after ``provided directly to''.

Sec.  17.1002  [Amended]

0
3. Amend the introductory text of Sec.  17.1002 by adding ``or 
prescribed for'' immediately after ``provided directly to''.
[FR Doc. 2015-18331 Filed 7-24-15; 8:45 am]
 BILLING CODE 8320-01-P