[Federal Register Volume 83, Number 130 (Friday, July 6, 2018)]
[Rules and Regulations]
[Pages 31452-31454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14573]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending 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 rule establishes that VA will 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: This final rule is effective August 6, 2018.

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: In a document published in the Federal 
Register on November 22, 2017, VA proposed to amend its regulation 
concerning billing third party payers for

[[Page 31453]]

health care received under its special treatment authorities. 82 FR 
55547.
    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. 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, 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. These 
authorities are codified at 38 U.S.C. 1710(a)(2)(F) and (e), 1720D, and 
1720E. 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, the limitations 
found in 38 U.S.C. 1710(e)(2) and (3), and the definitions in 
1710(e)(4), under section 1710(a)(2)(F), VA provides hospital care and 
medical services, and may furnish nursing home care, to veterans who 
were exposed to specified hazards or served under certain circumstances 
as identified in 38 U.S.C. 1710(e). The exposures include herbicide 
exposure, ionizing radiation, and certain chemical and biological 
weapons testing, and circumstances of service include service in the 
Southwest Asia theater during the Persian Gulf War and at Camp Lejeune 
during specified time periods. A more comprehensive list of the 
specific exposures and disabilities is located at 38 U.S.C. 1710(e).
    Under 38 U.S.C. 1720D, VA may 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 that 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 
treated as the practical equivalent for medical care purposes. 
Therefore, in the proposed rule, we proposed adding 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. VA provided a 60-day comment 
period, which ended on January 22, 2018. We received 2 comments on the 
proposed rule.
    One commenter explained that he was born at Camp Lejeune and that 
he and his family members have illnesses that he believes are related 
to exposures while on the base. He questioned why he was denied 
eligibility for the Camp Lejeune family member program and stated that 
more people should be eligible for the program. While we are 
sympathetic to the commenter, this rulemaking only codifies VA's 
practice of not exercising its discretionary authority in section 1729 
to recover or collect from a third party the cost of care and services 
provided under a special treatment authority, by creating an exception 
to 38 CFR 17.101. This comment is, therefore, beyond the scope of the 
rulemaking and we make no changes based on this comment.
    The other commenter raised concerns about the commenter's claim for 
unspecified benefits and a subsequent court decision that are not 
related to this regulation. The comment is beyond the scope of this 
rulemaking and we make no changes based on this comment.
    Based on the rationale set forth in the SUPPLEMENTARY INFORMATION 
to the proposed rule and in this final rule, VA is adopting the 
proposed rule as a final rule with no changes.

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.

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 final rule.
    The information collection requirements for Sec.  17.101 are 
currently approved by the Office of Management and Budget (OMB) and 
have been assigned OMB control number 2900-0606.

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-
612. We are not imposing any new requirements that would have such an 
effect. Our standards 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, 13563, and 13771

    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

[[Page 31454]]

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 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 website at 
http://www.va.gov/orpm, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year To Date.'' This rule is not 
an E.O. 13771 regulatory action because this rule is not significant 
under E.O. 12866

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 final 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 64.011--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; 64.026--Veterans State Adult 
Day Health Care; 64.029--Purchase Care Program; 64.033--VA Supportive 
Services for Veteran Families Program; 64.034--VA Grants for Adaptive 
Sports Programs for Disabled Veterans and Disabled Members of the Armed 
Forces; 64.035--Veterans Transportation Program; 64.039--CHAMPVA; 
64.040--VHA Inpatient Medicine; 64.041--VHA Outpatient Specialty Care; 
64.042--VHA Inpatient Surgery; 64.043--VHA Mental Health Residential; 
64.044--VHA Home Care; 64.045--VHA Outpatient Ancillary Services; 
64.046--VHA Inpatient Psychiatry; 64.047--VHA Primary Care; 64.048--VHA 
Mental Health clinics; 64.049--VHA Community Living Center; 64.050--VHA 
Diagnostic 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, 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. Jacquelyn 
Hayes-Byrd, Acting Chief of Staff, Department of Veterans Affairs, 
approved this document on June 28, 2018, for publication.

    Dated: July 2, 2018.
Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, 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 in part as 
follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
0
2. Amend Sec.  17.101 by:
0
a. Adding paragraph (a)(9).
0
b. Revising the authority citation at the end of the section.
    The addition and revision 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 this section, 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. 2018-14573 Filed 7-5-18; 8:45 am]
 BILLING CODE 8320-01-P