[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Proposed Rules]
[Pages 55547-55549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25269]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP20


Third Party Billing for Medical Care Provided Under Special 
Treatment Authorities

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 to clarify that VA will not bill third party payers 
for care and services provided by VA under certain statutory 
provisions, which we refer to as ``special treatment authorities.'' 
These special treatment authorities direct VA to provide care and 
services to veterans based upon discrete exposures or experiences that 
occurred during active military, naval, or air service. VA is 
authorized, but not required by law, to recover or collect charges for 
care and services provided to veterans for non-service connected 
disabilities. This proposed rule would establish that VA would not 
exercise its authority to recover or collect reasonable charges from 
third party payers for care and services provided under the special 
treatment authorities.

DATES: Comments must be received by VA on or before January 22, 2018.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue 
NW., Room 1063B, 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-AP20, Third Party Billing for 
Medical Care Provided under Special Treatment Authorities.'' Copies of 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1063B, 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: Joseph Duran, Director, Policy and 
Planning VHA Office of Community Care (10D1A1), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (303-370-1637). (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Many veterans enrolled in VA's health care 
system also have private insurance. VA is authorized by law under 38 
U.S.C. 1729 to recover or collect reasonable charges from third parties 
under certain situations for care and services provided for non-
service-connected disabilities. For example, VA may recover or collect 
such charges when a veteran requires medical care following a motor 
vehicle accident or an injury at work. 38 U.S.C. 1729(a)(2)(A)-(B). 
These provisions are reflected in regulation at 38 CFR 17.101. VA does 
not have authority to recover or collect charges from third parties for 
care or services provided for service-connected disabilities.
    Under the statutes referred to as the special treatment 
authorities, which are codified at 38 U.S.C. 1710(a)(2)(F) and (e), 
1720D, and 1720E, VA provides care and services to veterans for 
conditions and disabilities that are related to certain exposures or 
experiences during active military, naval, or air service, regardless 
of whether such condition or disability is formally adjudicated by the 
Veterans Benefits Administration (VBA) to be service-connected. 
Specifically, these statutory provisions do not expressly refer to the 
conditions or disabilities resulting from such exposures or experiences 
as service-connected. Therefore, if veterans meet the eligibility 
criteria of these discrete categories in law, they receive the health 
care benefits enumerated in the special treatment authorities. A brief 
description of each of the special treatment authorities follows.
    Subject to the availability of appropriations, under 38 U.S.C. 
1710(a)(2)(F), VA provides hospital care and medical services, and may 
furnish nursing home care, to veterans who were exposed to a toxic 
substance, radiation, or other conditions identified in 38 U.S.C. 
1710(e) for the treatment of the disabilities described in subsection 
(e). More specifically, subject to the requirements in 38 U.S.C. 
1710(e)(2)-(4), such care and services are available under 38 U.S.C. 
1710(a)(2)(F) and 1710(e) (at no cost to the veteran) as follows:
     For the treatment of any disability of a Vietnam-era, 
herbicide-exposed veteran, notwithstanding that there is insufficient 
medical evidence to conclude that such disability may be associated 
with such exposure;
     For the treatment of any disease specified by 38 U.S.C. 
1112(c)(2) or for which the Secretary, based on the

[[Page 55548]]

advice of the Advisory Committee on Environmental Hazards, determines 
that there is credible evidence of a positive association between 
occurrence of the disease in humans and exposure to ionizing radiation, 
of any radiation-exposed veteran;
     For treatment of any disability of a veteran who served on 
active duty between August 2, 1990, and November 11, 1998, in the 
Southwest Asia theater of operations during the Persian Gulf War, 
notwithstanding that there is insufficient medical evidence to conclude 
that such disability may be associated with such service;
     For treatment of any illness suffered by a veteran who 
served on active duty in a theater of combat operations during a period 
of war after the Persian Gulf War or in combat against a hostile force 
during a period of hostilities after November 11, 1998, notwithstanding 
that there is insufficient medical evidence to conclude that such 
condition is attributable to such service;
     For treatment of any illness suffered by a veteran who 
participated in a test conducted by the Department of Defense Deseret 
Test Center as part of a program for chemical and biological warfare 
testing from 1962 through 1973 (including the program designated as 
``Project Shipboard Hazard and Defense (SHAD)'' and related land-based 
tests) notwithstanding that there is insufficient medical evidence to 
conclude that such illness is attributable to such testing; and
     For treatment of certain illnesses or conditions 
identified by statute suffered by a veteran who served on active duty 
in the Armed Forces at Camp Lejeune, North Carolina, for not fewer than 
30 days during the period beginning on August 1, 1953, and ending on 
December 31, 1987, notwithstanding that there is insufficient medical 
evidence to conclude that such illnesses or conditions are attributable 
to such service.
    Under 38 U.S.C. 1720D, VA is authorized to provide counseling and 
appropriate care and services to help veterans overcome psychological 
trauma, which in the judgment of a mental health professional employed 
by VA, resulted from a physical assault of a sexual nature, battery of 
a sexual nature, or sexual harassment which occurred while the veteran 
was serving on active duty, active duty for training, or inactive duty 
training.
    Under 38 U.S.C. 1720E, VA is authorized to provide any veteran, 
whose service records include documentation of nasopharyngeal radium 
irradiation treatments, a medical examination, hospital care, medical 
services, and nursing home care that is needed for the treatment of any 
cancer of the head or neck that the Secretary finds may be associated 
with the veteran's receipt of those treatments in active military, 
naval, or air service; additionally, notwithstanding the absence of 
such documentation, VA may provide such care to a veteran who served as 
an aviator in the active military, naval, or air service before the end 
of the Korean conflict or a veteran who underwent submarine training in 
active naval service before January 1, 1965.
    The special treatment authorities do not require an adjudication of 
service-connection to establish eligibility for care. These veterans 
are eligible under those authorities for treatment of specific 
conditions, which although not adjudicated as service-connected, are 
the practical equivalent for medical care purposes. VA proposes, 
therefore, in the interest of equity, to add a new paragraph (a)(9) in 
Sec.  17.101 to exclude from recovery or collections any reasonable 
charges from third parties for care and services provided under the 
special treatment authorities. This would conform the regulation to the 
current general practice of not seeking recovery or collection from 
third parties for medical care and services related to conditions and 
disabilities under the special treatment authorities.
    Proposed paragraph (a)(9)(i) would state that, notwithstanding any 
other provision in this part authorizing VA to recover or collect such 
charges, VA will not seek to recover or collect reasonable charges from 
a third party payer for care and services when such care and services 
are being provided under any of the special treatment authorities 
discussed above. Proposed paragraphs (a)(9)(i)(A)-(C) would cite each 
of these authorities.
    The special treatment authorities of 38 U.S.C. 1710(a)(2)(F) and 
(e) do not extend, however, to conditions and disabilities that the 
Under Secretary for Health determines, consistent with the terms of 38 
U.S.C. 1710(e)(2)(A)-(B), have resulted from causes other than those 
described in the special treatment authorities. In these cases, needed 
treatment is still provided to the veteran but, depending on the facts, 
the veteran may be subject to copayment requirements in connection with 
the receipt of such treatment. In proposed Sec.  17.101(a)(9)(ii), VA 
would clarify that we would continue to have the right to recover or 
collect reasonable charges from third parties, pursuant to 38 CFR 
17.101, for the cost of care that VA provides to these same veterans 
for conditions and disabilities that VA determines are not covered by 
any of the special treatment authorities. For example, VA would not 
recover or collect charges from a third party payer for treatment of a 
veteran's lung cancer if that veteran served on active duty in the 
Armed Forces at Camp Lejeune, North Carolina, for not fewer than 30 
days during the period beginning on August 1, 1953, and ending on 
December 31, 1987. However, VA could recover or collect reasonable 
charges from a third party payer for treatment of the same veteran's 
broken leg incurred in a post-deployment automobile accident. 
Similarly, VA would not recover or collect charges from a third party 
payer for treatment of a Vietnam-era herbicide-exposed veteran's 
disability found to be possibly related to such exposure, but VA could 
recover or collect reasonable charges from a third party payer for 
treatment of a condition determined by the Under Secretary for Health 
to have resulted from a cause other than such exposure. Continuing with 
this last example, the determination of whether a Vietnam-era 
herbicide-exposed veteran's disability may be related to that exposure 
is strictly a clinical judgment to be made by the responsible physician 
(acting in accordance with the guidelines issued by the Under Secretary 
of Health and a report issued in accordance with section 3 of the Agent 
Orange Act of 1991 by the National Academy of Sciences).
    Finally, VA also proposes to amend the list of authorities 
appearing at the end of Sec.  17.101 to include 38 U.S.C. 1720D and 
1720E. These are two of the special treatment authorities previously 
discussed. The list of authorities already includes 38 U.S.C. 1710.

Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this 
proposed rulemaking, would represent the exclusive legal authority on 
this subject. No contrary rules or procedures would be authorized. All 
VA guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

Paperwork Reduction Act

    Although this action contains provisions constituting collections 
of information at 38 CFR 17.101, under the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501-3521), no new or proposed collections of 
information are associated with this proposed rule.
    The information collection requirements for Sec.  17.101 are 
currently approved by the Office of Management and Budget (OMB) and 
have been

[[Page 55549]]

assigned OMB control number 2900-0606.

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. The Secretary certifies that this proposed rule will 
not result in a significant economic impact on a substantial number of 
small entities. We have not proposed any new requirements that would 
have such an effect. Our proposed standards would almost entirely 
conform to the existing statutory requirements and existing practices 
in the program. Therefore, pursuant to 5 U.S.C. 605(b), this rule is 
exempt from the initial and final regulatory flexibility analysis 
requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety 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 proposed 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://www1.va.gov/orpm, by following the link for ``VA Regulations 
Published.''

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 an 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 program numbers and 
titles for this rule are as follows: 64.005, Grants to States for 
Construction of State Home Facilities; 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.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Grant programs-veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing home care, Philippines, 
Reporting and recordkeeping requirements, scholarships and fellows, 
travel, and transportation expenses, veterans.

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 November 6, 2017, for publication.

    Dated: November 17, 2017.
Janet Coleman,
Chief, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.
    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 17 as follows:

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.  17.101 by:
0
a. Adding a new paragraph (a)(9).
0
b. Amending the authority citation at the end of the section.
    The revisions read as follows:


Sec.  17.101  Collection or recovery by VA for medical care or services 
provided or furnished to a veteran for a nonservice-connected 
disability.

    (a) * * *
    (9) Care provided under special treatment authorities.
    (i) Notwithstanding any other provisions in this section, VA will 
not seek recovery or collection of reasonable charges from a third 
party payer for:
    (A) Hospital care, medical services, and nursing home care provided 
by VA or at VA expense under 38 U.S.C. 1710(a)(2)(F) and (e).
    (B) Counseling and appropriate care and services furnished to 
veterans for psychological trauma authorized under 38 U.S.C. 1720D.
    (C) Medical examination, and hospital care, medical services, and 
nursing home care furnished to veteran for cancer of the head or neck 
as authorized under 38 U.S.C. 1720E.
    (ii) VA may continue to exercise its right to recover or collect 
reasonable charges from third parties, pursuant to 38 CFR 17.101, for 
the cost of care that VA provides to these same veterans for conditions 
and disabilities that VA determines are not covered by any of the 
special treatment authorities.
* * * * *

    Authority: 38 U.S.C. 101, 501, 1701, 1705, 1710, 1720D, 1720E, 
1721, 1722, 1729.

[FR Doc. 2017-25269 Filed 11-21-17; 8:45 am]
 BILLING CODE 8320-01-P