[Federal Register Volume 80, Number 230 (Tuesday, December 1, 2015)]
[Rules and Regulations]
[Pages 74991-74996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29865]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AP60
Expanded Access to Non-VA Care Through the Veterans Choice
Program
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) revises its medical
regulations that implement section 101 of the Veterans Access, Choice,
and Accountability Act of 2014 (hereafter referred to as ``the Choice
Act''), which requires 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 (VHA) or who qualify based
on their place of residence (hereafter referred to as the ``Veterans
Choice Program'' or the ``Program''). These regulatory revisions are
required by the most recent amendments to the Choice Act made by the
Construction Authorization and Choice Improvement Act of 2014, and by
the Surface Transportation and Veterans Health Care Choice Improvement
Act of 2015. The Construction Authorization and Choice Improvement Act
of 2014 amended the Choice Act to define additional criteria that VA
may use to determine that a veteran's travel to a VA medical facility
is an ``unusual or excessive burden,'' and the Surface Transportation
and Veterans Health Care Choice Improvement Act of 2015 amended the
Choice Act to cover all veterans enrolled in the VA health care system,
remove the 60-day limit on an episode of care, modify the wait-time and
40-mile distance eligibility criteria, and expand provider eligibility
based on criteria as determined by VA. This interim final rule revises
VA regulations consistent with the changes made to the Choice Act as
described above.
DATES: Effective date: This rule is effective on December 1, 2015.
Comment date: Comments must be received on or before March 30,
2016.
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: The Veterans Access, Choice, and
Accountability Act of 2014 (the Choice Act, Pub. L. 113-146, 128 Stat.
1754) was enacted on August 7, 2014. Further amendments to the Choice
Act were made on September 26, 2014, by the Department of Veterans
Affairs Expiring Authorities Act of 2014 (Pub. L. 113-175, 128 Stat.
1901, 1906); on December 16, 2014, by the Consolidated and Further
Continuing Appropriations Act of 2015 (Pub. L. 113-235, 128 Stat. 2130,
2568); on May 22, 2015, by the Construction Authorization and Choice
Improvement Act (Pub. L. 114-19, 129 Stat. 215); and on July 31, 2015,
by the Surface Transportation and Veterans Health Care Choice
Improvement Act (Pub. L. 114-41, 129 Stat. 443). This interim final
rule revises VA regulations that implement the Choice Act in accordance
with the most recent amendments made by Public Laws 114-19 and 114-41.
Prior to discussing the regulatory changes made in this interim final
rule, a brief history of previous rulemakings that created and revised
regulations that implement the Choice Act is provided below.
Section 101 of the Choice Act creates the Veterans Choice Program
(the Program) and requires VA to enter into agreements with identified
eligible non-Department of Veterans Affairs (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. On November 5, 2014, VA published an interim
final rule, as required by section 101(n) of the Choice Act, to
implement the Veterans Choice Program through new regulations at 38 CFR
17.1500-17.1540. 79 FR 65571 (hereafter referred to as the ``November
interim final rule''). VA published another interim final rule on April
24, 2015, modifying Sec. 17.1510(e) to revise the methodology for
calculating distances under that section from geodesic (or ``straight-
line'') distance to driving distance. 80 FR 22906 (hereafter referred
to as the ``April interim final rule''). VA published a final rule
(hereafter referred to as the ``final rule'') amending the payment
rates in the Program to account for two exceptions: One for Alaska, and
one for states with an All-Payer Model Agreement (Maryland). These two
payment rate exceptions were authorized by section 242 of Division I of
Public Law 113-235. 128 Stat. 2568.
Changes in Public Law 114-19 Related to the ``Unusual or Excessive
Burden'' Standard
Under the November interim final rule at Sec. 17.1510(b)(4)(ii),
veterans may be eligible to participate in the Veterans Choice Program
if they live 40 miles or less from a VA medical facility but face an
``unusual or excessive burden'' in traveling to such medical facility
based on the presence of a body of water or a geologic formation that
cannot be crossed by road. As explained in the November interim final
rule, this standard for ``unusual or excessive burden'' was VA's
interpretation of the language in the Choice Act, which at that time
required the burden to be ``due to geographical challenges, as
determined by the Secretary.'' Sec. 101(b)(2)(D)(ii)(II), Pub. L. 113-
146, 128 Stat. 1754. As explained in the final rule, section 3(a)(2) of
Public Law 114-19 amended section 101(b)(2)(D)(ii)(II) of the Choice
Act by defining additional criteria that could be the basis for finding
that a veteran faced an ``unusual or excessive burden'' in traveling to
receive care in a VA medical facility, including environmental factors
such as roads that are not accessible to the general public, traffic,
or hazardous weather; a medical condition that affects the ability to
travel; or other factors, as determined by the Secretary. VA
implemented two of these factors, namely the environmental factors such
as roads that are not accessible to the general public, traffic, or
hazardous weather, or a medical condition that affects the ability to
travel, ahead of these regulatory revisions. We did so because we
believe these factors are
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easily understood by the public and that implementation fulfilled a
clear Congressional mandate that had an immediate effective date. These
changes were not subject to notice and comment prior to implementation
because they had an immediate effective date and VA did not need to
interpret the language to give it effect. VA is now adding these
criteria to Sec. 17.1510(b)(4)(ii) and is merely restating the
existing statutory law to make our regulations consistent with
Congressional intent as well as consistent with our current practice.
These new criteria in Sec. 17.1510(b)(4)(ii) are a virtually verbatim
copy from section 3(a)(2) of Public Law 114-19 without the addition of
further clarifying criteria, although we provide some examples here for
clarity. For instance, roads that are not accessible to the general
public include roads through military bases or other restricted areas.
If veterans are only able to access a VA medical facility that is 40
miles or less from their residence via such a restricted road, they can
be considered eligible for the Program under this standard. Traffic or
hazardous weather includes special traffic congestion and patterns or
weather conditions that make travel of a veteran to a VA medical
facility 40 miles or less from their residence excessively or unusually
burdensome. A medical condition that affects the ability to travel
includes a medical condition of the veteran that affects the ability of
the veteran to safely travel for 40 miles or less to a VA medical
facility or that otherwise makes such travel burdensome. As an example,
veterans on portable ventilators or with oxygen tanks may only be able
to travel for a certain amount of time before their health is in
jeopardy. As another example, veterans with spinal cord injuries or
other serious conditions may require the use of assistive devices or
may not be able to traverse over bumpier or windier roads, and may also
face an unusual or excessive burden in traveling to a VA medical
facility that is 40 miles or less from their residence. If traveling to
a non-VA facility would be safer for such veterans than traveling to
the nearest VA medical facility, they can qualify for the Program under
this standard because traveling to the VA medical facility would be
unusually or excessively burdensome. These are intended to be
clarifying but not exhaustive examples of medical conditions that may
qualify veterans to receive care at non-VA facilities under the new
medical condition criterion in Sec. 17.1510(b)(4)(ii). VA currently
makes determinations regarding eligibility under the ``unusual or
excessive burden'' criterion in Sec. 17.1510(b)(4)(ii) based on the
facts presented by the particular veteran's circumstances, and will
continue to do so under the new criteria in Sec. 17.1510(b)(4)(ii).
Such determinations do not need to be made in person and can instead be
made based on information that is available in the veteran's medical
record or that is otherwise available to VA.
In addition to the express factors in section 3(a)(2) of Public Law
114-19 that are related to the environment or that are related to the
medical condition of a veteran, we add three ``other factors'' to Sec.
17.1510(b)(4)(ii)(A) through (C) that the Secretary may consider when
determining whether a veteran faces an unusual or excessive burden in
travelling to a VA medical facility that is 40 miles or less from their
residence. These criteria are newly implemented in this interim final
rule and are not intended to be an exhaustive list, although VA
anticipates they will address the majority of cases that could
reasonably be the basis for finding an unusual or excessive burden in
travel. These other factors are the nature or simplicity of the
hospital care or medical services the veteran requires, how frequently
the veteran needs hospital care or medical services, and the need for
an attendant, which is defined as a person who provides required aid
and/or physical assistance to the veteran, for a veteran to travel to a
VA medical facility for hospital care or medical services. Considering
the nature or simplicity of the care or services will allow VA to
determine, for example, that routine and simple procedures that do not
necessarily require the expertise or best practices of VA providers
(such as simple tests or treatments like an allergy test or an
immunization) do not justify traveling a longer distance just to
receive that care from VA. Similarly, if a veteran needs repeated
appointments for a course of treatment, such as chemotherapy, the
frequency of travel could become an excessive burden on the veteran
that could be alleviated or lessened by receiving care closer to home.
If a veteran requires an attendant to travel to a VA medical facility,
this could also create an excessive or unusual burden on the veteran,
as he or she may need to arrange transportation with another person. VA
will define the term ``attendant'' to include any person who provides
required aid and/or physical assistance to the veteran to travel to a
VA medical facility for hospital care or medical services. This
definition is consistent with the definition of this term in VA's
beneficiary travel regulation (see 38 CFR 70.2.), but the definition at
Sec. 70.2 is dependent on separate eligibility under the beneficiary
travel program, and therefore is not cross referenced in Sec.
17.1510(b)(4)(ii)(C). The list of factors in Sec. 17.1510(b)(4)(ii)(A)
through (C) is demonstrative and not exhaustive. There may be other
unique factors that create an unusual or excessive burden for a
veteran, and in such cases, VA will make a determination on a case-by-
case basis.
Changes Made by Public Law 114-41 Related to Veteran Eligibility,
Periods of Follow Up Care, Wait Times, Distance Requirements, and
Provider Eligibility
Section 4005 of the Surface Transportation and Veterans Health Care
Choice Improvement Act of 2015 amended section 101 of the Choice Act
to: Remove the August 1, 2014 enrollment date restriction, thereby
making all veterans enrolled in the VA health care system under Sec.
17.36 eligible for the Program if they meet its other eligibility
criteria; remove the 60-day limit on an episode of care; modify wait-
time eligibility requirements; modify the 40-mile distance eligibility
criterion; and expand provider eligibility based on criteria as
determined by VA. Sec. 4005, Public Law 114-41, 129 Stat. 443.
Paragraph (a) of Sec. 17.1510 is therefore revised, and paragraphs
(a)(1) and (2) are removed, so it is clear under revised Sec.
17.1510(a) that all veterans enrolled under Sec. 17.36 are potentially
eligible, as required by subsection (b) of section 4005 of Public Law
114-41. VA has already implemented these changes related to removal of
the August 1, 2014 enrollment date ahead of the regulatory revisions in
this interim final rule. These changes were not subject to notice and
comment prior to implementation because they had an immediate effective
date and VA did not need to interpret the language to give it effect.
These changes are merely a restatement of existing statutory law to
make our regulations consistent with Congressional intent as well as
consistent with our current practice. VA enrolls new veterans every
day, so these changes have allowed more veterans who also meet the
other eligibility requirements under Sec. 17.1510 to be eligible for
the Program.
We discuss below the remaining changes made by Public Law 114-41 to
section 101 of the Choice Act that are newly implemented in this
interim final rule. Section 4005(a) of Public Law 114-41 amended
section 101(h) of the Choice Act by removing the 60-day
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limitation on an ``episode of care.'' Sec. 4005(a), Public Law 114-41,
129 Stat. 443. The definition of ``episode of care'' in Sec. 17.1505
is therefore revised by removing the phrase ``which lasts no longer
than 60 days from the date of the first appointment with a non-VA
health care provider.'' We replace the 60-day limitation with a 1-year
limitation, consistent with VA's authority in section 101(c)(1)(B)(i)
of the Choice Act to establish a timeframe for authorization of care.
This change creates a broader standard in terms of the possible
duration of an episode of care, but the definition of ``episode of
care'' in Sec. 17.1505 still means a ``necessary course of treatment,
including follow-up appointments and ancillary and specialty services''
for identified health care needs. VA therefore retains clinical
judgment in this revised definition to determine whether ancillary and
specialty care of any duration up to 1 year is actually needed in the
course of a veteran's treatment. We reiterate from the November interim
final rule that while some episodes of care require only a single
visit, others may require multiple visits, but in all cases VA will
authorize only the care that it deems necessary as part of a course of
treatment. If a non-VA health care provider believes that a veteran
needs additional care outside the scope of the authorized course of
treatment, the health care provider must contact VA prior to
administering such care to ensure that this care is authorized and
therefore will be paid for by VA. Whether additional care constitutes a
new ``episode of care'' will continue to be a clinical determination
made by VA on a case-by-case basis. VA anticipates that the vendors
that administer the Choice Program will require additional time after
the effective date of this interim final rule to fully integrate this
revision into their administrative functions. VA will work with the
vendors that administer the Choice Program to ensure that care under
the Choice Program is authorized in accordance with this rulemaking,
even as the administrative functions of these vendors continue to
change to accommodate this revision.
Section 4005(d) of Public Law 114-41 amended section 101(b)(2)(A)
of the Choice Act to create eligibility for veterans that are unable to
be scheduled for an appointment within ``the period determined
necessary for [clinically necessary] care or services if such period is
shorter than'' VHA's wait time goals. Sec. 4005(d), Public Law 114-41,
129 Stat. 443. This new wait-times based criterion is added as
paragraph (b)(1)(ii) of Sec. 17.1510, and creates eligibility when VA
clinically determines that a veteran requires care within a period of
time that is shorter than 30 days from the date an appointment is
deemed clinically appropriate by a VA health care provider, or shorter
than 30 days from the date that a veteran prefers to be seen.
Section 4005(e) of Public Law 114-41 amended section 101(b)(2)(B)
of the Choice Act to modify the 40-mile distance eligibility criterion.
Section 101(b)(2)(B)(i)-(ii) of the Choice Act now provides that
veterans may be eligible if they reside more than 40 miles from ``(i)
with respect to a veteran who is seeking primary care, a medical
facility of the Department, including a community-based outpatient
clinic, that is able to provide such primary care by a full-time
primary care physician; or (ii) with respect to a veteran not covered
under clause (i), the medical facility of the Department, including a
community-based outpatient clinic, that is closest to the residence of
the veteran.'' We find it would be impracticable to apply a ``seeking
primary care'' eligibility criterion as literally written in the Act.
Many individuals that seek VA care generally do not specifically
``seek'' primary care, but rather ``seek'' treatment for a specific
complaint, and are directed first to primary care for the very purpose
of determining what health care needs must be addressed. For instance,
a veteran who is eligible for the Program and who seeks VA care for a
complaint of generalized back pain would in most cases be directed
first to primary care and not immediately to an orthopedist or
chiropractor. Under a strict reading of the phrase ``seeking primary
care'' in section 4005(e) of Public Law 114-41, such a veteran might
not be considered eligible under the new section 101(b)(2)(B)(i)
criterion because they did not specifically ``seek'' primary care.
Rather than make this distinction, between those veterans ``seeking
primary care'' and those not ``seeking primary care,'' we interpret
section 4005(e) of Public Law 114-41 as a clarification of the
eligibility criterion for the 40-mile distance determination.
Effectively, this would raise the threshold for what constitutes a
qualifying VA medical facility to include only those facilities with at
least a full-time primary care physician. For instance, previously, if
a veteran lived 10 miles from a VA-community based outpatient clinic
(CBOC) that did not have a full-time primary care physician, but lived
50 miles from another VA medical facility that did, the veteran would
not be eligible for the Program because of their proximity to the CBOC.
Under this interim final rule, however, that veteran would be eligible
for the Program because the nearest VA medical facility with a full-
time primary care physician is more than 40 miles away. We therefore do
not revise the general 40-mile requirement in Sec. 17.1510(b)(1), but
do revise Sec. 17.1505 to add a definition of ``full-time primary care
physician,'' as well as amend the definition of ``VA medical facility''
to require that such a facility have a full-time primary care
physician. We note that ``full-time primary care physician'' will mean
at least one individual physician whose workload, or multiple
physicians whose combined workload, equates to a 0.9 full time
equivalent employee that works at least 36 clinical work hours per
week. This definition's requirement that 36 of the 40 hours must be
clinical is reasonable to ensure that for purposes of determining
eligibility for the Veterans Choice Program, we are taking into account
how much clinical work, as opposed to administrative work, a physician
actually performs. VA updates full-time equivalent employee data for
primary care physicians on a regular basis, and will use such data when
making these determinations.
Not distinguishing between those veterans that are ``seeking
primary care'' and other veterans is additionally more veteran-centric
because we find that a veteran's access to specialty care can be as
important as their access to primary care, and in a majority of cases
if a veteran lives more than 40 miles from a VA medical facility with a
full-time primary care physician, it is very likely that such veteran
also lives more than 40 miles away from a VA medical facility that
would be able to provide the vast majority of specialty care that we
know our veteran population requires. Lastly, if VA did distinguish
between those veterans that are ``seeking primary care'' versus all
other veterans who otherwise live more than 40 miles from a VA facility
with a full-time primary care physician, this may have the effect of
creating an unintentional back door for veteran eligibility in the
Program, whereby veterans might be directed to seek primary care to be
determined eligible, when such veterans may not actually need primary
care. This interpretation gives effect to section 4005(e) of Public Law
114-41 by accounting for those veterans that would be specifically
``seeking primary care'' and that live more than 40 miles from a VA
facility with a full-time primary care physician, as well as for
[[Page 74994]]
those veterans seeking care generally that live more than 40 miles from
a VA facility with a full-time primary care physician.
Section 4005(c) of Public Law 114-41 amended sections 101(a)(1)(B)
and 101(d) of the Choice Act to permit VA to expand provider
eligibility beyond those providers expressly listed in section
101(a)(1)(B) of the Choice Act, in accordance with criteria as
established by VA. Sec. 4005(c), Public Law 114-41, 129 Stat. 443.
Under the authority of sections 101(a)(1)(B)(v) and 101(d)(5) of the
Choice Act, we revise Sec. 17.1530(a) to refer to a new paragraph (e)
that will establish eligibility for these other providers, and add a
new paragraph (e) to Sec. 17.1530 to list these providers
specifically. We also revise paragraph (d) to reorganize current
requirements and add new requirements for these providers, in
accordance with section 101(d)(5) of the Choice Act. We revise
paragraph (d) to retain all requirements related to provider
credentialing and licensure, as well as the annual provision to VA of
documentation of such requirements, in new paragraph (d)(1)(A). We add
paragraph (d)(1)(B) to require that all providers not be excluded from
participation in a Federal health care program, as defined in
particular sections of the Social Security Act, as well as not be
listed as excluded sources or excluded providers or entities in
databases and lists maintained under certain Federal programs (such as
the System for Award Management or the List of Excluded Individuals and
Entities that is maintained by the U.S. Department of Health and Human
Services). These requirements in Sec. 17.1530(d)(1)(B) ensure that
providers that would participate in the Program are not those that are
otherwise excluded from participating in Federal health care programs
for a number of reasons, such as being convicted of criminal Medicare
or Medicaid fraud, patient abuse or neglect, or felony convictions for
other health care-related fraud, theft, or other financial misconduct.
Lastly, new paragraph (d)(2) maintains the current requirement that
eligible entities must ensure that their providers meet the standards
established in Sec. 17.1530(d).
Paragraph 17.1530(e) will specifically add new eligible providers
for the Veterans Choice Program. Paragraph (e)(1) of Sec. 17.1530 adds
to the list of eligible providers any health care provider that is
participating in a State Medicaid plan under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.), including any physician
furnishing services under such program, if the provider has an
agreement under a State plan under title XIX of such Act (42 U.S.C.
1396 et seq.) or a waiver of such a plan. Opening eligibility to
Medicaid providers will increase VA's ability to offer certain services
under the Program, including dental services (for veterans otherwise
eligible for VA dental care) as well as some unskilled home health
services, because providers of such services are not typically one of
the provider types listed in section 101(a)(1)(B)(i)-(iv) of the Choice
Act. We note that these services such as dental care and certain home
health services are already considered ``medical services'' that VA is
authorized to furnish under the Choice Act as well as under other
statutory authorities that permit VA to provide non-VA care to
veterans. See 38 U.S.C. 1703 and 38 U.S.C. 8153. Making Medicaid
providers eligible under the Veterans Choice Program therefore does not
newly authorize the provision of services to veterans generally, but
merely expands services offered under the Veterans Choice Program
specifically by expanding the pool of potential Choice providers.
Paragraph (e)(2) will make certain providers of extended care
services eligible, namely an Aging and Disability Resource Center, an
area agency on aging, or a State agency (as defined in section 102 of
the Older Americans Act of 1965 (42 U.S.C. 3002)), or a center for
independent living (as defined in section 702 of the Rehabilitation Act
of 1973 (29 U.S.C. 796a)). Paragraph (e)(3) of Sec. 17.1530 will
establish eligibility for any provider meeting all requirements of
Sec. 17.1530(d) that is not listed in section 101(a)(1)(B)(i)-(iv) of
the Choice Act or Sec. 17.1530(e)(1)-(e)(2). This is essentially a
flexible provision for these regulations so that VA can furnish care
under the Program through providers who do not fall into the specific
categories listed in section 101(a)(1)(B)(i)-(iv) of the Choice Act or
Sec. 17.1530(e)(1)-(e)(2), but satisfy the requirements in Sec.
17.1530(d) to ensure that the provider is skilled and safe to provide
services to veterans. This avoids the possible scenario that future
required revisions to Sec. 17.1530(e) would create delays in care
being provided to veterans under the Program.
Miscellaneous Changes
To ensure that VA had the resources in place to support care for
eligible veterans, the November 2014 interim final rule established
different start dates for eligible veterans in Sec. 17.1525 so that
implementation of the Program could be phased in. Because the start
dates in Sec. 17.1525 have already passed, we remove the language in
Sec. 17.1525 to include the section header, but retain Sec. 17.1525
and mark it is as reserved for future use.
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. 553(d)(3) that there is good cause to
publish this rule with an immediate effective date. Section 101(n) of
the Choice Act authorized VA to implement the Veterans Choice 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. Additionally, the Program is only authorized to
run until August 7, 2017, or until funds expire, which creates a need
for expedited action. The changes made by the Construction
Authorization and Choice Improvement Act included an immediate
effective date under section 3(b) of that Act. These provisions clearly
demonstrate that Congress intended that VA act quickly in expanding
access to non-VA care options.
This interim final rule changes the criteria VA may consider when
determining if a veteran faces an unusual or excessive burden in
traveling to the nearest VA medical facility. This interim final rule
also expands eligibility for veterans in other ways (through the new
criteria related to wait times and to the distance requirements), as
well as expands eligibility for providers as required and permitted by
the most recent amendments to the Choice Act. These changes will
increase the number of veterans who are eligible for the Veterans
Choice Program. In order for these veterans to have access to needed
health care under the Program, it is essential that the revised
criteria be made effective as soon as possible. For the above reasons,
we are issuing this rule as an interim final rule. However, VA will
consider and address comments that are received within 120 days of the
date this interim final rule is published in the Federal Register.
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this
interim final rule, 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
[[Page 74995]]
rulemaking if possible or, if not possible, such guidance is superseded
by this rulemaking.
Paperwork Reduction Act
Although this action contains provisions constituting collections
of information, at 38 CFR 17.1530(d), under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections
of information are associated with this interim final rule. The
information collection requirements for Sec. 17.1530(d) are currently
approved by the Office of Management and Budget (OMB) and have been
assigned OMB control number 2900-0823.
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 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), 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 that good cause exists under 5 U.S.C.
808(2) to make this regulatory action effective on the date of
publication, consistent with the reasons given for the publication of
this interim final rule. 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 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. Robert L.
Nabors II, Chief of Staff, Department of Veterans Affairs, approved
this document on October 9, 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: November 19, 2015.
Michael P. Shores,
Chief Impact Analyst, Office of Regulation Policy & Management, Office
of the General Counsel, Department of Veterans Affairs.
For the reasons set forth 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. 17.1505 by:
[[Page 74996]]
0
a. Revising the definition of ``episode of care''.
0
b. Adding a definition of ``full-time primary care physician''.
0
c. Revising the definition of ``VA medical facility''.
0
d. Revising the authority citation.
The revisions and addition read as follows:
Sec. 17.1505 Definitions.
* * * * *
Episode of care means a necessary course of treatment, including
follow-up appointments and ancillary and specialty services, which
lasts no longer than 1 calendar year from the date of the first
appointment with a non-VA health care provider.
Full-time primary care physician means a single VA physician whose
workload, or multiple VA physicians whose combined workload, equates to
0.9 full time equivalent employee working at least 36 clinical hours a
week at the VA medical facility and who provides primary care as
defined by their privileges or scope of practice and licensure.
* * * * *
VA medical facility means a VA hospital, a VA community-based
outpatient clinic, or a VA health care center, any of which must have
at least one full-time primary care physician. A Vet Center, or
Readjustment Counseling Service Center, is not a VA medical facility.
* * * * *
(Authority: Sec. 101, Pub. L. 113-146, 128 Stat. 1754; Sec. 4005,
Pub. L. 114-41, 129 Stat. 443)
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3. Amend Sec. 17.1510 by revising paragraphs (a), (b)(1), (b)(4)(ii),
and the authority citation to read as follows:
Sec. 17.1510 Eligible veterans.
* * * * *
(a) A veteran must be enrolled in the VA health care system under
Sec. 17.36.
(b) * * *
(1) The veteran attempts, or has attempted, to schedule an
appointment with a VA health care provider, but VA is unable to
schedule an appointment for the veteran within:
(i) The wait-time goals of the Veterans Health Administration; or
(ii) With respect to such care or services that are clinically
necessary, the period VA determines necessary for such care or services
if such period is shorter than the wait-time goals of the Veterans
Health Administration.
* * * * *
(4) * * *
(ii) Faces an unusual or excessive burden in traveling to such a VA
medical facility based on geographical challenges, such as the presence
of a body of water (including moving water and still water) or a
geologic formation that cannot be crossed by road; environmental
factors, such as roads that are not accessible to the general public,
traffic, or hazardous weather; a medical condition that affects the
ability to travel; or other factors, as determined by VA, including but
not limited to:
(A) The nature or simplicity of the hospital care or medical
services the veteran requires;
(B) The frequency that such hospital care or medical services need
to be furnished to the veteran; and
(C) The need for an attendant, which is defined as a person who
provides required aid and/or physical assistance to the veteran, for a
veteran to travel to a VA medical facility for hospital care or medical
services.
* * * * *
(Authority: Sec. 101, Pub. L. 113-146, 128 Stat. 1754; Section
3(a)(2) of Pub. L. 114-19, 129 Stat. 215)
Sec. 17.1525 [Removed and Reserved]
0
4. Remove and reserve Sec. 17.1525
0
5. Amend Sec. 17.1530 by revising paragraphs (a), and (d), adding
paragraph (e), and revising the authority citation to read as follows:
Sec. 17.1530 Eligible entities and providers.
(a) General. An entity or provider is eligible to deliver care
under the Veterans Choice Program if, in accordance with paragraph (c)
of this section, it is accessible to the veteran and is an entity or
provider identified in section 101(a)(1)(B)(i)-(iv) of the Veterans
Access, Choice, and Accountability Act of 2014 or is an entity
identified in paragraph (e) of this section, and is either:
* * * * *
(d) Requirements for health care providers. (1) To be eligible to
furnish care or services under the Veterans Choice Program, a health
care provider must:
(i) Maintain at least the same or similar credentials and licenses
as those required of VA's health care providers, as determined by the
Secretary. The agreement reached under paragraph (b) of this section
will clarify these requirements. Eligible health care providers must
submit verification of such licenses and credentials maintained by the
provider to VA at least once per 12-month period.
(ii) Not be excluded from participation in a Federal health care
program (as defined in section 1128B(f) of the Social Security Act (42
U.S.C. 1320a-7b(f)) under section 1128 or 1128A of such Act (42 U.S.C.
1320a-7 and 1320a-7a)), not be identified as an excluded source on the
list maintained in the System for Award Management or any successor
system, and not be identified on the List of Excluded Individuals and
Entities that is maintained by the Office of the Inspector General of
the U.S. Department of Health and Human Services.
(2) Any entities that are eligible to provide care through the
Program must ensure that any of their providers furnishing care and
services through the Program meet the standards identified in paragraph
(d)(1) of this section. An eligible entity may submit this information
on behalf of its providers.
(e) Other eligible entities and providers. In accordance with
sections 101(a)(1)(B)(v) and 101(d)(5) of the Veterans Access, Choice,
and Accountability Act of 2014 (as amended), the following entities or
providers are eligible to deliver care under the Veterans Choice
Program, subject to the additional criteria established in this
section.
(1) A health care provider that is participating in a State
Medicaid plan under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.), including any physician furnishing services under such
program, if the health care provider has an agreement under a State
plan under title XIX of such Act (42 U.S.C. 1396 et seq.) or a waiver
of such a plan;
(2) An Aging and Disability Resource Center, an area agency on
aging, or a State agency (as defined in section 102 of the Older
Americans Act of 1965 (42 U.S.C. 3002)), or a center for independent
living (as defined in section 702 of the Rehabilitation Act of 1973 (29
U.S.C. 796a)).
(3) A health care provider that is not identified in paragraph
(e)(1) or (2) of this section, if that provider meets all requirements
under paragraph (d) of this section.
(Authority: Sec. 101, Pub. L. 113-146, 128 Stat. 1754; Sec. 4005,
Pub. L. 114-41, 129 Stat. 443)
(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-
0823.)
[FR Doc. 2015-29865 Filed 11-30-15; 8:45 am]
BILLING CODE 8320-01-P