[Federal Register Volume 81, Number 137 (Monday, July 18, 2016)]
[Rules and Regulations]
[Pages 46603-46606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16917]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP59


Hospital Care and Medical Services for Camp Lejeune Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
regulations to reflect a statutory mandate that VA provide health care 
to certain veterans who served at Camp Lejeune, North Carolina, for at 
least 30 days during the period beginning on August 1, 1953, and ending 
on December 31, 1956. The law requires VA to furnish hospital care and 
medical services for these veterans for certain illnesses and 
conditions that may be attributed to exposure to toxins in the water 
system at Camp Lejeune. This rule does not address the statutory 
provision requiring VA to provide health care to these veterans' family 
members; regulations applicable to such family members will be 
promulgated through a separate final rule.

DATES: Effective Date: This rule is effective July 18, 2016.

FOR FURTHER INFORMATION CONTACT: Bridget Souza, Deputy Director, 
Business Policy, VHA Office of Community Care (10D), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., 
Washington, DC 20420, (202) 382-2537. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On August 6, 2012, the President signed into 
law the Honoring America's Veterans and Caring for Camp Lejeune 
Families Act of 2012, Public Law 112-154 (``the Act''). Among other 
things, section 102 of the Act amended section 1710 of title 38, United 
States Code (U.S.C.), to require VA to provide hospital care and 
medical services, for certain specified illnesses and conditions, to 
veterans who served at the Marine Corps base at Camp Lejeune, North 
Carolina (hereinafter referred to as Camp Lejeune), while on active 
duty in the Armed Forces for at least 30 days during the period 
beginning on January 1, 1957, and ending on December 31, 1987.
    On September 11, 2013, VA published a notice of proposed rulemaking 
setting forth proposed regulations to provide hospital care and medical 
services to certain veterans who served at Camp Lejeune for at least 30 
days from January 1, 1957, to December 31, 1987 (``the 1957 cohort''). 
78 FR 55671-55675, Sept. 11, 2013. A final rule issuing those 
regulations was published on September 24, 2014, at 79 FR 57409-57415. 
In addition to various other provisions, the rule promulgated 38 CFR 
17.400, Hospital care and medical services for Camp Lejeune veterans.
    Subsequently, Congress passed the Consolidated and Further 
Continuing Appropriations Act, 2015, Public Law 113-235 (``the 
Consolidated Act''), which President Obama signed into law on December 
16, 2014. Division I, Title II, Sec.  243 of the law amended 38 U.S.C. 
1710(e)(1)(F) by striking ``January 1, 1957,'' and inserting ``August 
1, 1953.'' This added a new cohort of veterans to the group who are 
eligible for care pursuant to 38 U.S.C. 1710(e)(1)(F), namely, veterans 
who served on active duty in the Armed Forces at Camp Lejeune, North 
Carolina, for not fewer than 30 days during the period from August 1, 
1953, to December 31, 1956 (the ``1953 cohort''). Although this 
rulemaking revises regulations to reflect this statutory amendment, we 
note that VA is currently providing health care to veterans in the 1953 
cohort under section 1710(e)(1)(F), as amended.
    Pursuant to the Consolidated Act, VA amends Sec.  17.400 to account 
for the change in the date that begins the period of eligibility for 
Camp Lejeune veterans to receive VA hospital care and medical services. 
Specifically, we amend the definition of ``Camp Lejeune veteran'' in 
Sec.  17.400(b) by deleting ``January 1, 1957'' and adding in its place 
``August 1, 1953.''
    Currently, Sec.  17.400(d)(2) establishes a right to retroactive 
reimbursement for the 1957 cohort for any copayments paid to VA for VA 
care provided to the veteran on and after August 6, 2012, so long as 
the veteran requests Camp Lejeune status no later than September 24, 
2016. We previously noted in a Notice of Proposed Rulemaking that the 
basis for limiting beginning of this retroactivity period to August 6, 
2012, was that the law authorizing Camp Lejeune benefits became 
effective on that date. We also explained in the proposed and final 
rules that the basis for the end date of September 24, 2016, was that 
it provided veterans with sufficient time (ultimately two years from 
the date that the regulation took effect) to file for retroactive 
benefits. 79 FR 57410. In this rulemaking, we are providing a similar 
retroactivity provision in Sec.  17.400(d)(2) for the new 1953 cohort.
    We further amend Sec.  17.400(b) by adding a definition for 
``covered illness or condition.'' This definition is comprised of the 
15 illnesses and conditions for which VA is required to provide 
hospital care and medical services to veterans under 38 U.S.C. 
1710(e)(1)(F). These illnesses and conditions are currently listed in 
Sec.  17.400(d)(1), which addresses exemptions from copayments. We 
remove the list of these illnesses and conditions from Sec.  
17.400(d)(1) and add it as part of the newly-added definition of 
``covered illness or condition'' in Sec.  17.400(b) for the purpose of 
improving the overall clarity of Sec.  17.400. This is not a 
substantive change. We also amend Sec.  17.400(b) to correct the 
spelling of the condition ``Myelodysplastic syndromes,'' which is 
misspelled in current Sec.  17.400. Similarly, we amend Sec.  17.400(b) 
to make the word ``lymphoma'' lower case.
    We make one technical change to Sec.  17.400(c) to remove the 
reference to ``illnesses or conditions listed in paragraph (d)(1)(i) 
through (xv) of this section,'' and add in its place a reference to 
``covered illness or condition,'' because this term is now defined in 
Sec.  17.400(b), as explained above. We make one clarifying change to 
Sec.  17.400(c). Current Sec.  17.400(c) refers to ``the veteran's 
active duty in the Armed Forces'' and ``the veteran's service,'' but 
does not specifically reference the veteran's active duty service at 
Camp Lejeune. We revise Sec.  17.400(c) to state ``VA will assume that 
a covered illness or condition is attributable to the veteran's active 
duty service at Camp Lejeune unless it is clinically determined, under 
VA clinical practice guidelines, that such an illness or condition 
resulted from a cause other than such service.'' This is not a 
substantive change. As we stated in the preamble to the proposed rule, 
``[i]n Sec.  17.400(c), we would explain that VA would assume that a 
veteran who has been diagnosed with one of the 15 illnesses or 
conditions listed in Sec.  17.400(d)(1)(A)-(O) has that specific 
condition or illness due to his or her exposure to contaminated water 
during service at Camp Lejeune.'' 78 FR 55671, 55673.
    We make several amendments to Sec.  17.400(d). First, we amend 
paragraph (d)(1) by removing the current list of covered illnesses and 
conditions and adding them to the definitions in Sec.  17.400(b), as 
noted above.
    We further amend Sec.  17.400(d)(1) to specify the dates for each 
cohort for the exemption from copayments for hospital care and medical 
services provided for a covered illness or condition. Specifically, 
paragraph (d)(1)(i) provides that members of the 1957 cohort are not 
subject to such copayments for hospital care and medical services 
provided on or after August 6, 2012, the date that the

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Act was signed by the President and became effective. This provision is 
unchanged from the exemption provision for these veterans in former 
Sec.  17.400(d)(1). Paragraph (d)(1)(ii) provides that members of the 
1953 cohort are not subject to such copayments for hospital care and 
medical services provided on or after December 16, 2014, the date that 
the Consolidated Act was signed by the President and became effective. 
This distinction is required because the Consolidated Act's amendment 
to 38 U.S.C. 1710(e)(1)(F) changed the date of active duty service at 
Camp Lejeune that would qualify a veteran for hospital care and medical 
services based on such service; but it did not make such eligibility 
retroactive to the date on which the Act became effective. Accordingly, 
VA must limit the 1953 cohort's eligibility for exemption from 
copayments to the effective date of the Consolidated Act.
    We also revise Sec.  17.400(d)(2) to provide the criteria for 
eligibility for the 1953 and 1957 cohorts' retroactive exemption from 
copayments, i.e., reimbursement of copayments previously paid to VA for 
hospital care and medical services for a covered illness or condition. 
Under paragraph (d)(2)(i), a Camp Lejeune veteran in the 1957 cohort 
will be reimbursed for copayments if VA provided the hospital care or 
medical services to the veteran on or after August 6, 2012, the date 
the veteran became eligible for hospital care and medical services 
under the Act, and the veteran requested Camp Lejeune veteran status no 
later than September 24, 2016, two years after the date on which Sec.  
17.400 was initially promulgated. This is not a substantive change from 
the retroactive exemption for these veterans in former Sec.  
17.400(d)(2).
    Under paragraph (d)(2)(ii), a Camp Lejeune veteran in the 1953 
cohort will be reimbursed for copayments if VA provided the hospital 
care or medical services to the veteran on or after December 16, 2014, 
the date the veteran became eligible for hospital care and medical 
services by virtue of the Consolidated Act, and the veteran requested 
Camp Lejeune veteran status no later than July 18, 2018, two years 
after the effective date of this rule. We believe that two years will 
provide veterans sufficient time to learn about their new status and 
notify VA that they meet the requirements to be a Camp Lejeune veteran; 
this is the same look-back period provided to veterans in the 1957 
cohort in paragraph (d)(2)(i). As in the case of exemptions from 
copayments, discussed above, we note that veterans in the 1953 cohort 
are not eligible for reimbursement for copayments made before December 
16, 2014, because the Consolidated Act's amendment to 38 U.S.C. 
1710(e)(1)(F) changed only the date of active duty service at Camp 
Lejeune that would qualify a veteran for Camp Lejeune status; it did 
not make such eligibility retroactive to the date of the Act. 
Accordingly, VA must limit the 1953 cohort's eligibility for 
reimbursement of copayments to the effective date of the Consolidated 
Act.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
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.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds under 5 U.S.C. 553(b)(B) 
that there is good cause to publish this rule without prior opportunity 
for public comment, and under 5 U.S.C. 553(d)(3) that there is good 
cause to publish this rule with an immediate effective date. This 
rulemaking makes clarifying, non-substantive changes to Sec.  17.400 in 
addition to amending that regulation to incorporate a provision 
mandated by Congress. See Public Law 113-235. Notice and public comment 
is unnecessary because it could not result in any change to this 
provision. Further, since the public law became effective on its date 
of enactment, VA believes it is impracticable and contrary to law and 
the public interest to delay this rule for the purpose of soliciting 
advance public comment or to have a delayed effective 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 final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3501-3507) 
requires that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number. 
See also 5 CFR 1320.8(b)(3)(vi).
    This final rule will impose the following amended information 
collection requirements. Veterans will apply for hospital care and 
medical services as a Camp Lejeune veteran under Sec.  17.400 by 
completing VA Form 10-10EZ, ``Application for Health Benefits,'' which 
is required under 38 CFR 17.36(d) for all hospital care and medical 
services. OMB previously approved the collection of information for VA 
Form 10-10EZ and an amendment to that information collection, inclusion 
of a specific checkbox for individuals to identify themselves as 
meeting the requirements of being a Camp Lejeune veteran based on the 
required service at Camp Lejeune between 1957 and 1987, and assigned 
OMB control number 2900-0091. An amendment to the checkbox is needed so 
that veterans can identify themselves as meeting the requirements for 
being a Camp Lejeune veteran based on the required service at Camp 
Lejeune between August 1, 1953, and December 31, 1987. As required by 
the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA 
submitted this information collection amendment to OMB for its review. 
OMB approved the amended information collection requirements under 
existing control number 2900-0091.

Regulatory Flexibility Act

    The Secretary hereby certifies that this 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-
12). This final rule will directly affect only individuals and will not 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
rulemaking is exempt from the initial and final flexibility analysis 
requirements of sections 603 and 604.

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory

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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 final rule 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 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.''

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this rule are 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.012, Veterans 
Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, 
Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home 
Care; and 64.022, Veterans Home Based Primary Care.

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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on June 30, 2016, 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, Medical 
devices, Medical research, Mental health programs, Nursing homes, 
Veterans.

    Dated: June 30, 2016.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the supplementary information of this 
rulemaking, the Department of Veterans Affairs 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. Revise Sec.  17.400 to read as follows:


Sec.  17.400  Hospital care and medical services for Camp Lejeune 
veterans.

    (a) General. In accordance with this section, VA will provide 
hospital care and medical services to Camp Lejeune veterans. Camp 
Lejeune veterans will be enrolled pursuant to Sec.  17.36(b)(6).
    (b) Definitions. For the purposes of this section:
    Camp Lejeune means any area within the borders of the U.S. Marine 
Corps Base Camp Lejeune or Marine Corps Air Station New River, North 
Carolina.
    Camp Lejeune veteran means any veteran who served at Camp Lejeune 
on active duty, as defined in 38 U.S.C. 101(21), in the Armed Forces 
for at least 30 (consecutive or nonconsecutive) days during the period 
beginning on August 1, 1953, and ending on December 31, 1987. A veteran 
served at Camp Lejeune if he or she was stationed at Camp Lejeune, or 
traveled to Camp Lejeune as part of his or her professional duties.
    Covered illness or condition means any of the following illnesses 
and conditions:
    (i) Esophageal cancer;
    (ii) Lung cancer;
    (iii) Breast cancer;
    (iv) Bladder cancer;
    (v) Kidney cancer;
    (vi) Leukemia;
    (vii) Multiple myeloma;
    (viii) Myelodysplastic syndromes;
    (ix) Renal toxicity;
    (x) Hepatic steatosis;
    (xi) Female infertility;
    (xii) Miscarriage;
    (xiii) Scleroderma;
    (xiv) Neurobehavioral effects; and
    (xv) Non-Hodgkin's lymphoma.
    (c) Limitations. For a Camp Lejeune veteran, VA will assume that a 
covered illness or condition is attributable to the veteran's active 
duty service at Camp Lejeune unless it is clinically determined, under 
VA clinical practice guidelines, that such an illness or condition 
resulted from a cause other than such service.
    (d) Copayments--(1) Exemption. (i) Camp Lejeune veterans who served 
at Camp Lejeune between January 1, 1957, and December 31, 1987, are not 
subject to copayment requirements for hospital care and medical 
services provided for a covered illness or condition on or after August 
6, 2012.
    (ii) Camp Lejeune veterans who served at Camp Lejeune between 
August 1, 1953, and December 31, 1956, are not subject to copayment 
requirements for hospital care and medical services provided for a 
covered illness or condition on or after December 16, 2014.
    (2) Retroactive exemption. VA will reimburse Camp Lejeune veterans 
for any copayments paid to VA for hospital care and medical services 
provided for a covered illness or condition if either of the following 
is true:
    (i) For Camp Lejeune veterans who served at Camp Lejeune between 
January 1, 1957, and December 31, 1987, VA provided the hospital care 
or medical services to the Camp Lejeune veteran on or after August 6, 
2012, and the veteran requested Camp Lejeune veteran status no later 
than September 24, 2016; or
    (ii) For Camp Lejeune veterans who served at Camp Lejeune between 
August 1, 1953, and December 31, 1956, VA provided the hospital care or 
medical services to the Camp Lejeune veteran on or after December 16, 
2014, and the veteran requested Camp Lejeune veteran status no later 
than July 18, 2018.
    (The Office of Management and Budget has approved the information 
collection requirement in this section under control number 2900-0091.)

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(Authority: 38 U.S.C. 1710)


[FR Doc. 2016-16917 Filed 7-15-16; 8:45 am]
BILLING CODE 8320-01-P