[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Rules and Regulations]
[Pages 25998-26018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11468]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ47


Urgent Care

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final a 
proposed rule amending its regulations that govern VA health care. This 
final rule grants eligible veterans access to urgent care from 
qualifying non-VA entities or providers without prior approval from VA. 
This rulemaking implements the mandates of the VA MISSION Act of 2018 
and increases veterans' ability to choose health care in the community.

DATES: This final rule is effective June 6, 2019.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director of Policy and 
Planning. 3773 Cherry Creek North Drive, Denver CO 80209. 
[email protected]. (303) 370-1637. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on January 31, 2019, VA published a proposed rule, which 
proposed to amend its regulations that govern VA health care. 84 FR 
627. VA provided a 30-day comment period, which ended on March 4, 2019. 
We received 3,285 comments on the proposed rule.
    On June 6, 2018, section 105 of Public Law 115-182, the John S. 
McCain III,

[[Page 25999]]

Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems 
and Strengthening Integrated Outside Networks Act of 2018, or the VA 
MISSION Act of 2018, amended title 38 of the United States Code 
(U.S.C.) by adding a new section 1725A, Access to walk-in care. The new 
section 1725A was further amended through the Department of Veterans 
Affairs Expiring Authorities Act of 2018 (Pub. L. 115-251). This 
benefit is intended to offer eligible veterans convenient care for 
certain, limited, non-emergent health care needs. Section 1725A(a) and 
(g) direct the Secretary to establish procedures and regulations to 
ensure eligible veterans are able to access such care from qualifying 
non-VA entities or providers to ensure their access to care when minor 
injury or illness arise. VA is required to develop procedures to ensure 
eligible veterans can access this care from qualifying non-VA entities 
or providers. Eligible veterans would include any enrolled veteran who 
has received care under chapter 17 of title 38 U.S.C. within the 24-
month period preceding the furnishing of care under this section. Care 
under chapter 17 of title 38, U.S.C. would include any of the 
following: Care provided in a VA facility, care authorized by VA 
performed by a community provider, emergency room care authorized by VA 
performed by a community provider, care furnished by a State Veterans 
home, or urgent care under this proposed section. Qualifying non-VA 
entities or providers would include any non-VA entity or provider that 
has entered into a contract, agreement, or other arrangement with VA to 
provide services under this section.
    VA refers to this benefit as urgent care, instead of walk-in care. 
This benefit will include care provided at both urgent care facilities 
and walk-in retail health clinics.
    This rule implements the mandates of section 1725A, as added by the 
VA MISSION Act of 2018 as amended, by establishing a new Sec.  17.4600. 
Multiple commenters generally supported the proposed rule, but had 
several suggestions and concerns on various aspects of the rule, while 
others strongly opposed the proposed rule. We have grouped similar 
comments into the various sections below for ease of readability.

Positive Comments

    VA received numerous comments in favor of the rule. One commenter 
stated that the rule would provide veterans vital services as well as 
provide longer hours of operation in convenient locations. Another 
commenter said urgent care would bring a better sense of care to 
veterans in need. A commenter also stated that the proposed rule would 
provide access to quality accessible community care to serve the 
veteran community. Several commenters stated that the proposed rule 
would provide at lower cost many services that veterans might otherwise 
seek from an emergency room. Several commenters indicated that the 
proposed rule would save veterans time in that they would not have to 
travel long distances to their nearest VA medical facility to receive 
health care. Another commenter indicated that urgent care would free up 
VA medical facility resources so that VA can focus on treating service-
connected conditions and managing long term care. Several commenters 
stated that urgent care will ensure that veterans receive timely and 
appropriate, immediately necessary care in a short period of time, 
which will save lives. Another commenter stated that the proposed rule 
is an important step in ensuring that veterans will receive appropriate 
care regardless of whether the best treatment is in VA or the private 
sector. Another commenter stated that the rule would alleviate the 
burden of disabled or elderly veterans who might face obstacles in 
reaching VA medical facilities. This commenter also stated that the 
rule would help restore trust in the VA health care system. Another 
commenter similarly stated that the proposed rule would benefit 
veterans who live in rural areas, the homeless, and those veterans who 
lack transportation. Several commenters supported VA's decision to call 
the new benefit urgent care, which is consistent with industry 
practice. Another commenter supported the proposed rule stating that 
the rule should expand community care options for veterans. Several 
commenters agreed that urgent care should not replace primary and 
specialty care coordinated through VA. One commenter also stated that 
urgent care would allow for better delivery of timely access for 
serious or life-threatening emergency situations in VA medical 
facilitates. A commenter supported the proposed rule stating that it 
will widen the stream of health care and allow more veterans to get the 
care they need. Another commenter supported the proposed rule stating 
that urgent care should only be for the treatment of a single condition 
and that follow-up care should be managed by the VA medical facility. 
The commenter also agreed with the publishing of a list of the non-VA 
providers and entities who will provide urgent care, as well as the 
establishment of the $30 copayment. One commenter stated that urgent 
care has the potential for high value for veterans. We thank the 
commenters and make no changes based on these comments.

Comments on Copayments

    We stated in the proposed rule that VA would establish a regular 
copayment for urgent care of $30. An eligible veteran's liability for 
the $30 regular copayment would depend on the veteran's enrollment 
category and the number of visits in a calendar year. Veterans enrolled 
in priority groups 1 through 6 (except those veterans described in 
Sec.  17.36(d)(3)(iii) for all matters not covered by priority category 
6), would be required to pay the $30 copayment after their third visit 
in the calendar year. All other veterans would be required to pay the 
$30 copayment on every visit, subject to certain exceptions explained 
further in the proposed rule. Most of the comments received on the 
proposed rule were in opposition to VA charging a copayment for urgent 
care for veterans enrolled in priority groups 1 through 6, service-
connected veterans, or other specific subsets of veterans. The 
commenters' concerns are summarized as follows.
    Many commenters stated charging a copayment for service-connected 
veterans is unreasonable and unacceptable. Some commenters had more 
specific concerns and suggestions about the category of veterans who 
should be charged copayments. For instance, some comments stated that 
copayments should only be charged for non-service-connected conditions, 
veterans who were 100 percent service-connected should not be charged a 
copayment, veterans who are enrolled in priority group 1 should not be 
charged copayments, and that veterans with a disability rating over 30 
percent should not pay a copayment. Another commenter stated that 
subjecting American Indian and Alaska Native veterans to a copayment as 
a condition of health care violates the Federal trust responsibility.
    VA acknowledges that veterans enrolled under priority groups 1 
through 6 generally are not required to pay copayments under other 
health care programs administered under title 38; however, section 
1725A(f)(1)(B) states that an eligible veteran not required to pay a 
copayment under the title may access walk-in care without a copayment 
for the first two visits in a calendar year. For any additional visits, 
a copayment at an amount determined by the Secretary may be required. 
VA has decided to utilize this authority to require copayments for 
these veterans,

[[Page 26000]]

including for the categories of veterans that the commenters 
specifically noted, because the copayment is designed to encourage 
appropriate use of the benefit. Collecting a copayment after the third 
visit will help ensure that the urgent care benefit is utilized 
appropriately and is not being used as a substitute for primary care. 
As explained in the proposed rule, copayments are a common feature of 
health care, including VA health care, and are an important mechanism 
for guiding behavior to ensure that patients receive care at an 
appropriate location. The copayment is designed to encourage veterans 
to seek care from VA first, when VA can provide the needed care, and to 
utilize urgent care when prompt treatment is necessary to prevent the 
condition from becoming emergent. Urgent care is considered to be a 
convenient option for care, but is not intended to be used as a 
substitute for traditional primary care that emphasizes longitudinal 
management and care coordination. Also, collecting copayments allows VA 
to utilize its health care resources more efficiently. Generally 
speaking, copayments are applicable to all similarly situated veterans 
and VA care is provided to eligible veterans in connection with 
military service. However, VA is not authorized to waive copayments for 
specific categories of veterans, such as American Indian or Alaskan 
Native veterans, as suggested by one commenter.
    In addition, VA has decided to utilize this authority to require 
copayments for these veterans, including for the categories of veterans 
that the commenters specifically noted, because the copayment is 
designed to discourage excessive use or misuse of the benefit. VA 
anticipates that veterans, on average, will use this benefit fewer than 
three times per year. VA used Medicare sampling data, which is 
frequently used by health researchers and others, to estimate that 85 
percent of visits are an enrollees' first or second visit. We have 
confidence that these data should be accurate given the similarity of 
the benefit (open access), the availability of multiple network 
providers, and the comparable morbidities between the Medicare 
population and the veteran population. While the Medicare data does not 
have the same copayment as VA's proposed rate (it assumed a higher 
copayment), we have adjusted for this by assuming higher utilization 
given the lower cost. Therefore, VA believes that the majority of 
service-connected veterans will not pay a copayment, as their first 
three visits in the calendar year are exempt from the copayment 
requirement.
    Many commenters were concerned that the copayment could cause a 
financial burden on veterans and some were further concerned that the 
copayment may act as a deterrent for using the urgent care benefit. In 
particular, one commenter suggested that there should be no copayment 
to encourage veterans to use the urgent care benefit instead of 
emergency room, which is free. Another commenter stated that veterans 
in priority groups 1 through 6 who are 10 percent service-connected are 
not required to pay a copayment, and will not be expecting a bill. In 
addition, the commenter stated that beneficiaries have been warned 
through the military health system and Medicare about providers going 
after patients for money they do not owe (so called balance billing 
schemes). The commenter added that as such, eligible veterans may have 
been conditioned to ignore bills they receive, which could lead to 
unpaid medical bills and collection actions against veterans.
    VA does not believe the rule as proposed will create a copayment 
burden for most veterans. VA has a waiver process for copayments in 
place for existing copayments when these liabilities would produce a 
financial hardship for veterans, and this process will apply to 
copayments assessed under this benefit. In fiscal year (FY) 2018, VA 
granted approximately two-thirds of waiver requests from veterans, but 
only received fewer than 25,000 such requests. We interpret these data 
to mean that those veterans who face an actual hardship are granted 
relief, while the copayment liabilities are not an obstacle for most 
veterans. VA believes the $30 copayment after three visits is a 
reasonable mechanism to help ensure that veterans are going to use 
urgent care appropriately. VA worked with the support of contractors to 
analyze different copayment structures in the context of the urgent 
care benefit and the impact of these copayments on utilization. 
Copayments are common for urgent care visits both in the private and 
public sectors. The analysis showed that copayments are an appropriate 
method to influence utilization. Also, VA has developed educational 
materials that will alert the public of the availability of the new 
urgent care benefit, the eligibility criteria, as well as the copayment 
obligation. VA expects that these educational materials will assist 
veterans in taking full advantage of the urgent care benefit while 
listing upfront charges for the copayment structure. We are not making 
any changes based on these comments.
    To ensure that neither the veteran nor their insurer is billed by 
the provider when VA is responsible for the payment of urgent care, we 
are adding a new paragraph (f). This new paragraph states that payments 
made for urgent care constitute payment in full and extinguish the 
liability of the veteran. It also states the qualifying non-VA entity 
or provider may not impose any additional charge on a veteran or his or 
her health care insurer for any urgent care service for which payment 
is made by VA. Finally, it states that this section does not abrogate 
VA's right under section 1729 to recover or collect from a third party 
the reasonable charges of the care or services provided under this 
section. These provisions are consistent with current practice under 
other authorities for community care and should address the commenters' 
concerns. We are also adding a new paragraph (c)(1)(B) that states that 
the eligible veteran must declare at the time of the episode of care 
that the veteran is using the VA benefit under this section. We believe 
this requirement will also help reduce the potential for inadvertent 
billing, as the qualifying non-VA entities or providers will know in 
advance that this care is being furnished under the VA benefit. A 
collateral benefit of this change is that it should also help reduce 
the potential that services that are outside the scope of VA's benefit 
will be furnished to eligible veterans. We further make a clarifying 
edit to the language in paragraph (c)(1) to refer more broadly to 
urgent care under this section.
    Some commenters suggested that a copayment be charged for veterans 
in priority groups 1 through 6 after a different number of visits 
(other than after the third visit). For instance, one commenter stated 
that copayments should not be imposed until after the sixth visit while 
another suggested that the copayment should not be imposed until after 
the tenth visit. As previously explained, VA determined it would be 
appropriate to require a copayment after the third visit for priority 
groups 1 through 6. VA is not limiting the total number of visits a 
veteran may make in a year, as VA is striving to ensure veterans will 
have access to convenient care when necessary. However, this urgent 
care benefit is not meant to supplant primary and specialty care 
provided by VA. VA is limiting the types of services provided to ensure 
that preventive care is not provided through this benefit and the 
veteran's primary care is managed through the veteran's primary care 
provider. A copayment after the third visit will encourage

[[Page 26001]]

veterans enrolled in these priority groups to seek only episodic urgent 
care from the community and direct other care to the local VA facility. 
VA is working to increase internal capacity at medical facilities while 
ensuring veterans have access to community facilities to address urgent 
care needs.
    Many commenters suggested alternative copayment structures. For 
instance, one commenter suggested that veterans enrolled in priority 
group 1 pay no copayment; priority groups 2 through 6 pay $30 after two 
visits; and priority groups 7 and 8 pay $40 after one visit. Another 
commenter stated that the copayment should not be more than $12. A 
commenter indicated that VA should adopt the $8 copayment that is 
charged for Medicare, instead of the proposed $30. Several commenters 
stated that the copayment for urgent care should be $5 to $10. A 
commenter recommended that VA apply a standard copayment rate for all 
beneficiaries and be consistent as to which services require a 
copayment. When modeling the proposed rule, VA looked at various 
copayment structures between $0 and $75, the effect of requiring 
copayments after a different number of visits, and considered 
instituting different copayments for the various priority groups. We 
believe that these various models reflect the general proposals that we 
received suggesting that VA adopt different copayment structures. We 
determined that the model proposed and adopted here as final is 
appropriate given our goals of ensuring access, reducing over-reliance, 
ensuring the right level of care, and being fiscally responsible. In 
addition, the $30 copayment is still less than the industry average, 
which is $67 based on the market average as determined by analysis 
conducted by VA that was published in conjunction with the proposed 
rule. We are not making any changes based on these comments.
    Multiple commenters also suggested that the copayment structure 
mirror the copayment structure VA uses for care provided at VA 
facilities. A commenter stated that the proposed rule as drafted raises 
the standard copayment from $15 to $30 for all urgent care visits 
without adequate justification. The commenter indicated that currently, 
veterans seeking same-day services for urgent non-service connected 
care are required to pay a copayment amount equivalent to a primary 
care visit, which is $15, not $30. The commenter also noted that the 
proposed rule's cost-benefit analysis failed to provide data comparing 
the existing $15 copayment to the proposed $30 copayment to justify the 
increase. The comment further explained that our MISSION Act Copayment 
Study Assessment Analysis (assessment) concluded this would be the 
least disruptive option, while new copayment levels would result in 
``significant disruption from a people, process, and technology 
perspective''. The commenter added that the disparity in copayments 
between VA facilities and qualifying non-VA entities will punish 
veterans for using health facilities outside of VA for urgent care and 
that raising the copayment rates for urgent care will financially 
punish veterans for seeking routine health care.
    As previously explained, section 1725A(f) allows VA to establish a 
copayment for each episode of care furnished under this section. In 
preparation for the implementation of the VA MISSION Act of 2018, VA 
reviewed industry copayment structures for urgent care. The assessment 
reviewed commercial best practices and cost sharing structures and the 
applicability of those structures to VA. The assessment defined several 
scenarios and provided analytics based on utilization data and behavior 
change assumptions to develop costs and benefits for each possibility 
to make a recommendation on how VA could structure a copayment for 
urgent/walk-in care. VA acknowledges that this assessment recommended a 
$15 copayment for the urgent care benefit and the assessment did not 
provide data comparing the existing $15 copayment to the proposed $30 
copayment to justify the increase; however, the assessment did not look 
at the clinical consideration to make certain that the veterans receive 
the right level of care, better care coordination, and patient 
outcomes. In this regard, the higher copayment VA proposed would 
encourage veterans to seek care with their primary care providers at a 
lower copayment. In addition, although VA's assessment did not include 
data using a $30 copayment, it did analyze various different dollar 
amounts. In our assessment of copayments, we found that copayments 
ranged from $15 to $100, and the majority of copayments in commercial, 
health maintenance organization (HMO), preferred provider organization 
(PPO), and government plans fell between $40 and $70. Moreover, we 
considered both a $15 copayment and an escalating copayment, both with 
a requirement for preauthorization beyond the second visit. However, we 
believe that a $30 copayment for each visit without a preauthorization 
requirement is consistent with the need to ensure that veterans receive 
the right level of care, better care coordination, and improved patient 
outcomes. This copayment is below what other commercial and government 
plans charge and is in line with the copayment structure used by 
TRICARE Prime for retirees. Regarding the technological concern stated 
by the commenter, VA is addressing this concern through system changes 
to facilitate the charging of the different copayments for urgent care. 
Once the system changes are in place, this will allow for automation, 
thereby streamlining our process and ensuring that employee workload is 
no greater than what it is for charging copayments for other community 
care claims today. We are not making any changes based on these 
comments.
    A commenter stated that there is an exception to the copayment rule 
for veterans described in 38 CFR 17.36(d)(3)(iii) and questioned how 
the exception applies to veterans in priority group 4 based on 
catastrophic disability. We initially note that the exception in Sec.  
17.36(d)(3)(iii) does not affect veterans enrolled in priority group 4. 
Veterans who are enrolled in priority group 4 will not have a copayment 
for the first three urgent visits in each calendar year at an eligible 
facility, but they will be required to pay a $30 copayment starting on 
the fourth visit of such calendar year. This copayment requirement 
includes veterans who are determined to be catastrophically disabled by 
VA under priority group 4. There is no limit on the number of urgent 
care visits for an eligible veteran. The $30 copayment discourages over 
utilization of the benefit, while still making on-demand care 
accessible and without prior authorization.
    A commenter stated that they do not agree with the $30 copayment 
after a few urgent care visits because it will create an added burden 
on VA staff to manage. Although VA acknowledges that administrative 
actions will be required to collect the copayment, VA believes that the 
burden will not be unreasonable, and VA has implementation plans in 
place to address the administrative aspects of implementing the rule. 
We are not making any edits changes on this comment.
    A commenter agreed with the $30 copayment but suggested that VA 
periodically adjust the copayment to account for market changes in the 
cost of delivering health care. VA has the authority to adjust the $30 
copayment for urgent care visits through subsequent rulemaking and may 
choose to do so in the future. We are not making any changes based on 
this comment.

[[Page 26002]]

    A commenter stated that the copayment for urgent care does not seem 
to control usage because a non-service connected veteran would pay $30 
for urgent care, which is less than the copayment for a specialty 
visit. VA acknowledges that a copayment for specialty care is $50. 
Urgent care may be used for services that VA considers specialty care, 
for example x-rays, however, these services must be provided in a 
single visit. We believe that it is unlikely that veterans will be this 
selective in terms of only seeking specialty care services through 
qualifying non-VA entities or providers. Moreover, VA believes that 
most types of specialty care are longitudinal care, which is not 
covered under the section 1725A. We defined longitudinal management of 
conditions in the proposed rule to mean outpatient care that addresses 
important disease prevention and treatment goals and is dependent upon 
bidirectional communications that are ongoing over an extended period 
of time. For purposes of this section, the term ``longitudinal 
management of conditions'' and ``longitudinal care'' are synonymous.
    Another commenter requested clarification that non-VA urgent care 
entities will not be responsible for collection of veteran copayments. 
We stated in the proposed rule that eligible veterans would not owe 
copayments at the time of service, consistent with current practice for 
VA and VA-authorized community care. VA finds that this language is 
sufficiently clear in that VA does not intend for members of the non-VA 
urgent care network to collect or bill veterans for copayments 
resulting from urgent care visits.
    A commenter stated that VA should waive copayments for urgent care 
visits during which a flu shot is the only service provided. The 
proposed rule, in Sec.  17.4600(d)(2), already provided that an urgent 
care visit consisting solely of an immunization against influenza (flu 
shot), as well as a visit consisting solely of a service VA has 
identified under Sec.  17.4600(b)(5)(iii) (VA's authority to provide 
additional services not typically covered by this benefit, now 
(b)(5)(iv)) is not subject to the $30 copayment amount.
    Several commenters were under the impression that the proposed rule 
would establish a new copayment for urgent care provided in a VA 
medical facility and opposed such change. The urgent care benefit under 
38 U.S.C. 1725A will not be provided at VA medical facilities. This 
benefit will be provided by qualifying non-VA entities or providers. 
The copayment requirements for similar care provided at VA medical 
facilities will not be amended by this rule. We are not making any 
changes based on these comments.
    Several commenters indicated that instead of charging a copayment 
for urgent care, VA should stop collecting severance pay from their 
service-connected disability compensation. Section 3.700(a)(3) of 38 
CFR states that where the disability or disabilities found to be 
service-connected are the same as those upon which disability severance 
pay is granted, or where entitlement to disability compensation was 
established on or after September 15, 1981, an award of compensation 
generally will be made subject to recoupment of the disability 
severance pay. The proposed rule only addressed urgent care authorized 
under section 1725A. The recoupment of disability severance pay is 
beyond the scope of the proposed rule. We are not making any changes 
based on these comments.
    Several commenters stated that undocumented immigrants are afforded 
free health care and veterans who have served their countries are 
charged copayments. The proposed rule addressed urgent care authorized 
by 38 U.S.C. 1725A. Health care for undocumented immigrants is beyond 
the scope of the proposed rule. We are not making any edits based on 
these comments.
    One commenter was concerned that the rule would destroy the 
priority care afforded to service-connected disabled veterans. The 
commenter added that when service-connected veterans are stripped of 
their priority status for care and placed on the same level as veterans 
with no service connected disability then you have created the problem 
of access to services. The new urgent care benefit does not change any 
priority status for veterans. Furthermore, we contemplate that the 
availability of urgent care in the community will be sufficient to 
provide ready access to veterans qualifying for that service. We are 
not making any changes based on this comment.
    We are making further revisions to our amendments to Sec.  17.108. 
In our proposed rule, we proposed amending paragraph (e) of that 
section to apply the exceptions identified in that paragraph to 
copayments for the urgent care benefit. Upon closer review, we have 
determined that applying all of the copayment exceptions under Sec.  
17.108(e) to urgent care copayments would create inequities that VA did 
not intend. For example, Sec.  17.108(e)(1) provides that care for a 
veteran for a non-compensable zero percent service-connected disability 
is not subject to an outpatient copayment. Applying this exception to 
the urgent care benefit would create an illogical result where 
treatment for zero percent service connected disabilities were not 
subject to a copayment, but treatment for 100 percent service connected 
disabilities (after a third visit by that veteran) were subject to a 
copayment. Similarly, subparagraphs (2), (4), and (10) apply to other 
care that, while not service connected, is generally treated as the 
equivalent of service connected, and thus would generate the same 
inequities. We are also omitting the exception under Sec.  
17.108(e)(14) from applying to the urgent care copayments, as this 
provision exempts laboratory services, flat film radiology services, 
and electrocardiograms from copayments. Exempting these services from 
copayment liabilities in the context of the urgent care benefit could 
create an incentive for veterans to receive these services through this 
benefit, but these procedures are typically necessary for the 
longitudinal management of conditions, and are always needed for 
purposes of care coordination. As we explained in the proposed rule and 
do so again here in further detail below, we believe that care 
coordination by a primary care provider is essential to overall health, 
and thus we seek to reduce the potential for fragmentation and 
duplication of care that could occur through multiple providers 
ordering lab services or radiology services. As a result, we are 
amending section 17.108(e) to state that the exceptions in 
subparagraphs (1), (2), (4), (10), and (14) do not apply as exceptions 
to the copayment obligation under the urgent care benefit in Sec.  
17.4600.

Comments on Scope of Available Services

    Several commenters had questions regarding the scope of services 
that would be provided under the urgent care benefit. These commenters 
indicated that there should be clear guidance for what VA would 
consider episodic care and questioned what the dispute process would be 
if care was provided that was not considered episodic. A commenter 
specifically questioned what would happen if a veteran went to an 
urgent care clinic for care that is not considered episodic.
    The urgent care benefit under 38 U.S.C. 1725A(h) is limited to 
eligible veterans seeking immediate, non-emergent care from a 
qualifying non-VA entity or provider that furnishes episodic care and 
not longitudinal management of conditions. VA further proposed defining 
the term episodic

[[Page 26003]]

care in Sec.  17.4600(b)(2) as applying to a particular health 
condition, or a limited set of particular health conditions, without an 
ongoing relationship being established between the eligible veteran and 
the qualifying non-VA entity or provider. VA will provide educational 
materials to the public that will state that VA will not pay for 
preventive care, such as annual examinations and routine screenings, 
and will post such materials on VA's website at www.va.gov. VA will not 
provide an exhaustive list to account for the needed flexibility in 
administering the benefit. VA will monitor utilization of this benefit 
and may make further revisions to the website in the future. Any 
services provided that are outside of the scope of this benefit are the 
financial liability of the veteran. These educational materials will be 
provided to comply with section 121 of the VA MISSION Act of 2018. VA 
will educate the third-party administrators (TPA), as discussed below, 
on the urgent care benefit, as required by section 122 of the VA 
MISSION Act of 2018.
    The veteran will be responsible for any urgent care medical claims 
that do not meet the criteria set forth in this rulemaking. 
Specifically, a veteran could be liable if: The veteran is not an 
eligible veteran (i.e., the veteran is either not enrolled or has not 
received care under chapter 17 of title 38 within the prior 24 months); 
the provider is not a qualifying non-VA entity or provider (meaning it 
does not meet the requirements in Sec.  17.4600(b)(4), such as having a 
contract, agreement, or other arrangement with VA to furnish care and 
services under this section); or if the care or services do not meet 
the definition of urgent care in Sec.  17.4600(b)(5) (i.e., the care is 
not care available from an entity or provider submitting claims for 
payment as a walk-in retail health clinic or an urgent care facility; 
or the care is preventive care, is dental care, or is managing a 
chronic disease). To reduce the potential of veterans' facing 
unexpected copayments, VA will be available by phone, in person, and by 
other means to advise veterans who are unsure of their eligibility for 
this benefit. VA also will make a list of qualifying non-VA entities or 
providers available on VA's website (www.va.gov) so that veterans know 
where to go and which providers can furnish this care. VA will provide 
information regarding the services that are generally available through 
this benefit on a website and will work with its contractors to educate 
them on the scope of services VA covers. Veterans will also have the 
option to contact either a VA call center or the non-VA entity or 
provider to discuss urgent care benefit information including 
eligibility, covered services, and the nearest qualifying facility and 
location. Although VA does not anticipate that the urgent care 
providers will provide care outside of the scope of the urgent care 
benefit, if this does occur, the veteran would be charged for the cost 
of care, but both the provider and the veteran would have the ability 
to appeal this determination. We are not making any changes based on 
this comment.
    Several commenters had concerns regarding follow-up care. A 
commenter strongly disagreed with VA's proposal that episodic care is 
addressed in a single visit. The commenter wants the urgent care/walk-
in care benefit to be expanded to allow for follow-up care as a 
clinical best practice. Another commenter stated that the definition in 
the proposed rule fails to recognize the role of urgent care facilities 
in the health care delivery system and continuity of care and could 
create a barrier to necessary follow-up care subsequent to an urgent 
care encounter for illness or injury. We appreciate the commenters' 
perspective regarding whether or not episodic care can be furnished in 
a single visit; however, VA maintains that in order to ensure that care 
provided is not longitudinal, episodic care is care that can be 
furnished in a single visit. For this reason, we are amending Sec.  
17.4600(b)(2) to amend the definition of episodic care to specifically 
state that the care must be provided in a single visit.
    Another commenter asked who will determine cases where a veteran 
argues that an episode of care requires several follow-up visits to 
ensure continuity and full treatment of an acute condition. The 
commenter further asked whether each visit will count against the three 
visits that are not subject to a copayment or if the provision 
regarding three visits without a copayment apply to three visits for 
unrelated episodes of care. Under our regulations, each visit either 
counts as one of the three free visits or is subject to a copayment, 
depending upon the eligible veteran's priority group, the number of 
visits, and whether the visit is exclusively for a flu shot (or a 
similar treatment under Sec.  17.4600(b)(5)(iv). Based upon this and 
other comments, we are amending Sec.  17.4600(b)(5)(iii) to clarify 
that veterans requiring follow-up care as a result of an urgent care 
visit under this section must contact VA or their VA-authorized primary 
care provider to arrange such care. At the time that the veteran 
contacts VA for follow-up care, VA will schedule the necessary follow-
up care at a VA medical facility or by referral through a community 
provider. If a veteran instead chose to subsequently go to a qualifying 
non-VA entity or provider for a follow-up visit, this visit would 
either count as another visit or could be determined to be not covered 
if it constituted the longitudinal management of a condition if the 
encounter was not episodic. VA staff will make the determination of 
whether care is episodic or not, and an appeals process will be 
available for providers and patients as described above. VA also makes 
a minor clarifying edit to the language in this provision to change the 
conjunction.
    Multiple commenters had concerns with follow-up care and one 
commenter indicated that the standard should be that urgent care 
providers are allowed to provide the same level and scope of care in 
that urgent care visit for the complete course of treatment that a VA 
operated urgent care provider would provide as part of the course of 
treatment in that urgent care visit. The commenter added that to 
require the course of treatment by the urgent care provider to be 
arbitrarily and prematurely terminated simply to protect some standard 
of separation for ``longitudinal care'' is not justified. The treatment 
that would be provided at a non-VA urgent care facility should be the 
same as that treatment received in a VA urgent care facility. VA 
believes that limiting urgent care to a single visit is appropriate 
because it is important that a veteran's care be provided by a primary 
care provider to eliminate duplicate treatment and improve health 
outcomes. Moreover, the separation of longitudinal care as being 
outside the scope of this benefit is statutorily prescribed in section 
1725A(h).
    A commenter questioned if a clinical determination was made before 
or after the fact and based on whose judgement. The commenter also 
questioned how the best medical interest provision would apply in cases 
where the veteran believes that care was urgent and not preventative. 
VA notes that the best medical interest provision in the MISSION Act is 
a specific eligibility criterion for care that is authorized under the 
Veterans Community Care Program under section 1703 of title 38, as 
modified by section 101 and as addressed in VA's separate rulemaking, 
RIN 2900-AQ46 (Veterans Community Care Program), which is published 
elsewhere in this issue of the Federal Register. As previously stated, 
this urgent care benefit provides certain veterans access to urgent and 
walk-in care from qualifying non-VA entities or providers without prior 
approval by VA.

[[Page 26004]]

The urgent care benefit will provide the treatment of conditions that 
are episodic in nature. Eligible veterans have a dedicated primary care 
provider and this benefit is intended only to supplement, not supplant, 
such providers. These dedicated primary care providers coordinate care 
and reduce the duplication of care to improve patient outcomes. In 
these cases, if follow up care is required after an urgent care visit, 
the veteran will need to coordinate such care with VA, as explained 
above. Further, and as also discussed above, determinations regarding 
whether services are covered within the benefit will be made by VA 
staff, and veterans or providers who disagree may appeal this 
determination.
    A commenter recommends that VA publish a list of conditions and 
symptoms for which veterans can seek urgent care. They state that most 
individuals are not familiar with the names of services that are used 
to diagnose and treat the symptoms they may be experiencing, and they 
believe a list would reassure veterans their urgent care visit would be 
covered. While VA understands the commenter's concern, VA is not going 
to list symptoms because we would not want to inadvertently divert care 
from the appropriate level of care. For instance, pain is a symptom, 
and could be indicative of a minor illness that would be appropriately 
treated at an urgent care facility but could also be indicative of a 
life-threatening condition necessitating emergency treatment. VA will 
provide examples of care and services that are excluded from the 
benefit and will make that available to the public at www.va.gov. VA 
will consult with clinical staff, including women's health care 
providers, in developing the services available at the urgent care and 
walk-in care facilities.
    The same commenter stated that VA should cover emergency 
contraception for women veterans who request it during an urgent care 
visit. Urgent care facilities generally do not administer the 
medication suggested by the commenter during a visit. VA encourages 
women veterans to use their women's health care provider as their 
primary care provider, who may provide these services. However, women 
veterans may access certain services through this benefit that might 
otherwise be provided by a women's health care provider, such as 
treatment for urinary tract infections or vaginitis.
    This commenter also recommended flu shots and therapeutic vaccines 
in the urgent care benefit to be available for all veterans, including 
pregnant women. In addition, the commenter recommended that VA waive 
copayments for urgent care visits during which a flu shot is the only 
service provided. VA agrees with the commenter. The new urgent care 
benefit will include immunizations against influenza (flu shots), which 
will be available to all veterans as clinically appropriate, including 
pregnant women. The proposed rulemaking provides an urgent care visit 
consisting solely of an immunization against influenza (flu shot) is 
not subject to the $30 copayment amount. VA, in response to other 
comments, is amending proposed Sec.  17.4600(d)(2) to exempt visits 
that consist solely of flu shots from the number of visits an eligible 
veteran may receive before being charged a copayment.
    A commenter stated that their urgent care representative stated 
that veterans must have a pre-authorization to receive urgent care, and 
that their local VA medical facility indicated that urgent care is not 
covered for veterans. The commenter stated that women veterans are not 
receiving equal access to health care and added that VA should help all 
veterans have equal access to health care. We wish to clarify two 
points in light of this comment. First, eligible veterans will not be 
required to request VA authorization prior to receiving urgent care 
from a qualifying non-VA entity or provider under this benefit. As 
stated previously, VA will consult with health care providers, 
including women's health care providers, regarding this benefit to 
ensure equal access to health care. Second, the new urgent care benefit 
authorized under 38 U.S.C. 1725A has not been effective prior to this 
rulemaking, and thus the statement by the local VA medical facility was 
accurate at the time it was made, as all VA community care (except for 
emergency care provided under 38 U.S.C. 1725 or 1728) has required VA 
authorization prior to veterans seeing community providers. We are not 
making any changes based on this comment.
    Another commenter had questions about prior authorization required 
for the urgent care visit as well as any necessary follow-up care. 
Urgent care benefits under section 1725A do not require authorization 
from VA. However, follow-up care must be coordinated by VA, and it is 
the veteran's responsibility to coordinate follow-up care and must 
contact VA or their VA-authorized primary care provider to arrange such 
care.
    Another commenter stated that urgent care centers have a role in 
preventive care, ranging from influenza vaccines to diabetes and 
hepatitis screenings. The commenter further stated that irrational 
barriers being proposed in this rule disallowing urgent care centers 
from providing follow-up care after an acute care visit or preventive 
care should be removed so urgent care facilities are not restricted 
from improving the health of our nation's veterans. The commenter also 
stated that urgent care facilities serve an essential role as part of 
the primary care safety net across the country. We understand the 
commenters point, but note that eligible veterans are not like other 
potential users of urgent care centers or walk-in retail health 
clinics, as they, by definition, are enrolled in VA health care and are 
receiving care and services from VA. As such, the ability of urgent 
care centers to serve as a primary care safety net and to provide 
preventive care for eligible veterans is less important because they 
already have means of accessing these services. Cost-free preventive 
care is already available to all eligible enrolled veterans at VA 
clinics and hospitals, usually on a walk-in or same-day basis; there is 
no need for a veteran to seek such care at a retail walk-in clinic or 
urgent care center. Veterans requiring services that are not available 
within walk-in retail health clinics or urgent care centers will need 
to contact VA, or in the case of a medical emergency, seek care at the 
nearest emergency room. We are, however, making one edit based on these 
comments. We are revising Sec.  17.4600(b)(5)(ii)(B) to authorize 
specifically screenings related to the treatment of symptoms associated 
with an immediate illness or exposure. We believe this addresses some 
of the commenter's concerns and should provide additional flexibility 
so that patients who present for care with symptoms may receive 
diagnostic screenings for purposes of identifying the specific clinical 
need and treating it appropriately.
    Several commenters encouraged VA to include preventive services 
generally, or at least certain preventive services (such as physical 
therapy services), and to cover a broader range of immunizations than 
influenza, not just on an as-needed or as-appropriate basis. Section 
1725A(h) does not provide for urgent care to be used for the 
longitudinal management of health care, such as physical therapy. 
Preventive health services are excluded because such services are best 
coordinated and managed by a primary health care provider who addresses 
important disease prevention and treatment goals through bidirectional 
communication. We are clarifying that urgent care in Sec.  
17.4600(b)(5)(ii)(A) does not include

[[Page 26005]]

preventive care or chronic disease management. Also, physical therapy 
services are considered ``rehabilitative services'', which are not 
included in the definition of preventive services in 38 U.S.C. 1701(9).
    Continuous care generally reduces the risk of adverse reactions, 
and that is one of VA's primary goals, but we have made an exception 
here for flu shots and therapeutic vaccines because there is so little 
risk in these areas and because they are necessary as part of treatment 
of certain conditions. VA considers other types of preventive care 
vaccines to be part of the veteran's longitudinal care, and as such, 
these other vaccines should be provided by the veteran's primary care 
provider and not as part of urgent care. Other vaccines may produce 
unique risks of adverse reaction or duplication that could potentially 
harm the patient. Managing these vaccines through a primary health care 
provider reduces these risks. In response to the example provided by 
the commenter, physical therapy, if not properly coordinated and 
performed, can lead to worse health outcomes.
    One commenter stated that in the proposed rule, VA acknowledged 
that there may be other preventive treatments with minimal risk of 
adverse action; however, VA considered these preventive care treatments 
to be part of the veteran's longitudinal care, and accordingly these 
other treatments should be provided by the veteran's primary care 
provider and not as part of urgent care. The commenter questioned 
whether these other services would not be paid by VA and added if there 
would be some discussion as to paying for some services as outpatient 
care because urgent/walk-in care providers do not provide inpatient 
care or extended care services and would this result in an argument 
over payment. Urgent care is authorized under section 1725A and only 
includes the limited scope of services; however, additional care can be 
authorized in the community under a separate authority. This type of 
care is addressed under a separate rulemaking with distinct eligibility 
criteria, which is published elsewhere in this issue of the Federal 
Register.
    Another commenter stated that they were in favor of the proposed 
rule, but added that for the service to be effective, urgent care 
should include lab tests. VA agrees with the commenter and the benefit 
would cover certain lab tests, such as sexually transmitted disease 
testing and blood tests.
    A commenter stated that the rule should clearly define urgent care 
versus convenience care. Specifically, the commenter stated that VA 
should distinguish convenience care for a veteran who goes to an urgent 
care clinic to refill a medication for a chronic condition or a visit 
strictly for obtaining a flu shot versus a flu shot given 
opportunistically to a veteran who is at the urgent care clinic for 
another purpose. The commenter also stated that the rule should specify 
the services provided; for example, diagnostic studies should be 
limited to those necessary for the acute condition that can be 
accomplished in that visit. VA appreciates the comment regarding 
refilling medication and addresses this topic below in more detail. 
Veterans will be permitted to refill medications, however, VA will only 
pay or reimburse for a 14 day supply; anything beyond that would have 
to be submitted to VA. Also, the visit to obtain a refill of a 
medication for a chronic condition may not be considered urgent care 
and may be considered as part of the veteran's longitudinal care. In 
addition, veterans can use the benefit for obtaining a flu shot and 
would also be able to obtain the flu shot if the veteran was at the 
qualifying non-VA entity or provider for another purpose. The rule 
clearly provides that flu shots are available through this benefit. 
Similarly, VA believes the rule is clear that services provided are 
limited to those necessary to treat a particular health condition, or a 
limited set of particular health conditions, without an ongoing 
relationship being established between the eligible veteran and 
qualifying non-VA entities or providers. In this rulemaking, we further 
clarified that episodic care has to be addressed in a single visit.
    The commenter also suggested that diagnostics requiring scheduling 
at a later date should be coordinated by VA, as well as prosthetic 
items that are not readily available in retail stores, in addition to 
specialty care consultations. The commenter also stated that follow-up 
care should also be coordinated through VA.
    When a veteran has seen an urgent care provider, the veteran is 
responsible for contacting VA to arrange for any follow-up care that is 
needed. We agree with the commenter in that prosthetics that are not 
readily available in retail stores should not be covered under urgent 
care. As discussed further below, in response to comments, VA is 
including language in a new paragraph (e) regarding prescriptions for 
medications, medical equipment, and medical devices for urgent care. VA 
will determine whether to provide the necessary care and services, such 
as prosthetic items, at a VA facility or through a community health 
care provider.
    We are comparing the prescription of urgent care medications to the 
Veterans Community Care Program, under a separate rulemaking (RIN 2900-
AQ46), which is published elsewhere in this issue of the Federal 
Register. We are addressing VA's payment and fulfillment of 
prescriptions obtained by covered veterans from eligible entities and 
providers, but would clarify VA's current practice that distinguishes 
circumstances under which VA pays for (versus fills) such prescriptions 
in new paragraph Sec.  17.4600(e). Paragraph Sec.  17.4600(e)(1) would 
match the practice proposed in Sec.  17.4025 in RIN 2900-AQ46, and 
would also retain the practice in the Veterans Choice Program that VA 
will pay for prescriptions, including prescription drugs, over-the-
counter drugs, and medical and surgical supplies available under the VA 
national formulary system written by non-VA health care providers 
furnishing services through VA community care, but would clarify that 
such payment would be for a course of treatment for urgent care that 
lasts no longer than 14 days. This current practice to limit payment 
for non-VA prescriptions is reasonable, as it would allow VA to ensure 
that any amount of medication in excess of 14 days would be filled 
through VA's Consolidated Mail Order Pharmacy system to ensure cost and 
quality controls. VA believes that the economies of scale related to 
bulk purchase of medications allow for the best maximization of Federal 
resources. Paragraph Sec.  17.4600(e)(2) establishes the correlate rule 
from the Veterans Choice Program, and the rule proposed in RIN 2900-
AQ46, that VA would fill longer-term prescriptions available under the 
VA national formulary system for courses of treatment that exceed 14 
days if they are filled through VA's Consolidated Mail Order Pharmacy 
system. We note that these authorities would only be available for 
prescriptions furnished as part of urgent care under this section.
    Paragraph Sec.  17.4600(e)(3) further clarifies current practice 
under the Veterans Choice Program and would mirror provisions proposed 
in RIN 2900-AQ46 regarding VA paying for or filling prescriptions 
written by non-VA health care providers for durable medical equipment 
(DME) and devices. As we stated in our proposed rule for the Veterans 
Community Care Program (RIN 2900-AQ46), the Veterans Choice Program 
currently permits VA to pay for such prescriptions to be furnished by a 
community provider only when there is an urgent or emergent need for 
the

[[Page 26006]]

durable medical equipment or medical device, meaning the veteran has a 
medical condition of acute onset or exacerbation manifesting itself by 
severity of symptoms including pain, soft tissues symptomatology, bone 
injuries, etc. Urgent DME or medical devices may include, but are not 
limited to: Splints, crutches, canes, slings, soft collars, walkers, 
and manual wheelchairs. This current practice to limit payment for non-
VA prescriptions of DME or medical devices to only what is immediately 
needed is reasonable, as VA must ensure administrative oversight as 
well as clinical appropriateness of all other DME and medical devices 
prescribed by non-VA health care providers. DME and medical devices are 
specific to a particular clinical need and in most cases are further 
specifically tailored to fit or serve an individual, and as such 
require direct provision by VA (except when urgently needed) to ensure 
clinical appropriateness and the best use of Federal resources. 
Paragraph Sec.  17.4600(e)(3) establishes that VA may pay for 
prescriptions written by eligible entities or providers for covered 
veterans that have an immediate need for durable medical equipment and 
medical devices to address urgent conditions, and parenthetically 
references a non-exhaustive list of such devices to include splints, 
crutches, and manual wheelchairs. These provisions of the final rule 
are a logical outgrowth of both the proposed rule and the comments we 
received seeking clarification as to the scope of prescription benefits 
under this program.
    Multiple commenters did not agree with VA changing the name of the 
benefit from walk-in care to urgent care. One commenter suggested that 
the benefit should be referred to as walk-in care with a clear 
distinction between retail clinics (those in pharmacies, grocery 
stores, and big-box stores) that are places of service code (POS) 17 
and urgent care facilities recognized as places of service code (POS) 
20. Another commenter stated that in calling the benefit urgent care, 
VA is trying to deter veterans from using it because they will not 
think their conditions are ``urgent''. The commenter also cited to a 
Congressional report describing this benefit as offering non-urgent 
care. The comment further noted that other provisions of regulations 
and VA's Community Care Network proposal use the term differently.
    VA appreciates the comments, but does not believe that veterans 
will be deterred from using this benefit based upon the name. The lack 
of consistency in defining the name both in the industry and within the 
comments signifies the importance that VA define its own benefit and 
therefore VA looks towards a name that is easy to remember and has some 
market relevance. VA also does not believe it is necessary to 
distinguish between retail clinics that are POS 17 and urgent care 
facilities recognized as POS 20. VA will continue to develop 
educational materials on the benefit that will be available to 
veterans. Congress provided the Secretary authority to define what 
walk-in care includes through section 1725A(h). VA has exercised its 
authority to include services that are available at walk-in retail 
health clinics and urgent care facilities. As noted at the beginning of 
Sec.  17.4600(b), the definitions only apply to this section.
    Regarding the services provided by walk-in clinics, the commenter 
cited several examples of major chains (CVS, Walgreens) that offer 
preventive services (the commenter says about half of the services they 
offer appear to be preventive), but these would not be included in the 
benefit. The commenter argued that VA's rationale (the need to 
coordinate preventive care) is invalid because clinics have to provide 
records, and VA is required to coordinate care. Also, the commenter 
asked who would be liable if the veteran goes to an urgent clinic for 
something that VA considers preventive care and thus not within the 
scope of this benefit.
    As we have already stated in this rulemaking, care is not just 
about providing the veteran's medical record, care includes the veteran 
establishing a relationship with the veteran's primary care provider, 
which cannot be accomplished in one urgent care visit. Regarding the 
exclusion of preventive services, such services are best coordinated 
and managed by a primary health care provider who addresses important 
disease prevention and treatment goals through bidirectional 
communication. Such a provider can also ensure that care is not 
duplicated, both improving patient care while reducing costs. The 
veteran would be liable for the cost for any care that VA determines is 
not within the scope of the benefit. We are not making any changers 
based on these comments.
    A commenter asked whether the definition of urgent care would also 
include several key conditions or other uses of the term ``urgent 
care'' or ``urgent services'' in other VA regulations, specifically 
Sec. Sec.  17.101, 17.106, and 70.71. Also, the commenter asked if the 
change of the statutory term walk-in care to urgent care would create 
confusion in the veteran community that could lead to billing disputes. 
The commenter also asked what is the likelihood that any care that is 
provided to an eligible veteran that does not meet this definition of 
urgent care, whether it be that the care was provided by a non-
qualifying entity or provider or that the care provided was beyond the 
scope of urgent care as defined in this section, will not be covered by 
VA. The commenter stated that in these situations, the eligible veteran 
would be liable for the cost of such care and questioned how this 
determination will be made and whether there will be any provision for 
review and/or appeal. As stated in the proposed rule, the urgent care 
definition under Sec.  17.4600(b)(5) only applies to the mandates under 
38 U.S.C. 1725A. Regarding the regulations listed by the commenter, 
those regulations were developed at a separate time and address other 
types of benefits not provided under this rulemaking. We do not believe 
that the change in name to urgent care would result in billing 
disputes, but we can amend these regulations in the future if VA 
encounters any confusion regarding the interaction between this rule 
and the ones listed by the commenter. Moreover, bills can only be 
submitted by parties who have a contract, agreement, or other 
arrangement to furnish care and services under this section. By statute 
and regulation, only in-network providers can furnish urgent care under 
this section. Urgent care provided at an out-of-network facility will 
not be covered, and the veteran will be responsible for the cost of 
that care. An eligible veteran will be responsible for the payment for 
any care that does not meet the definition of urgent care; a non-
eligible veteran would be liable for any care provided by any provider, 
whether in or out of VA's network. VA staff will determine whether the 
care meets the requirements of this section, and veterans and providers 
will be notified of their appeal rights in connection with VA's 
decision.
    One commenter stated that veterans enrolled in priority group 4 who 
are paraplegic with bladder problems should be able to see any hospital 
to meet their health care needs, especially if they have to drive more 
than 30 miles to the nearest VA medical facility. Several commenters 
similarly indicated that veterans should be able to go to any doctor, 
hospital, or clinic for all of their care and not have to drive 60 
miles to receive VA care. Section 1725A does not place a mileage limit 
for non-VA entities or providers that would offer urgent care. The 
intent of the urgent care benefit is to provide care that is

[[Page 26007]]

accessible to eligible veterans and is within the veterans' community. 
The provision of any other types of health care services, such as 
hospital or primary care, that is not covered under section 1725A is 
beyond the scope of the proposed rule. We are not making any changes 
based on these comments.
    A commenter requested that urgent care be expanded to care that is 
directly related to a veteran's service-connected condition, 
specifically for wound care. This commenter stated that there is a 
dividing line between ongoing care and urgent care, especially if the 
veteran has a chronic condition, which may be service-connected, that 
sometimes has urgent symptoms. The commenter questioned if such a 
veteran would still qualify to receive urgent care. Under this rule, 
urgent care may be provided for the immediate treatment of a chronic 
condition, including a service-connected condition, that does not 
address important disease prevention and treatment goals. We are not 
making any changes based on this comment.
    One commenter stated that the proposed definition of urgent care in 
Sec.  17.4600(b)(5) defines urgent care, in part, as those services 
being provided by walk-in retail health clinics or urgent care 
facilities, as designated by the Centers for Medicare & Medicaid 
Services (CMS). The commenter indicated that they were not aware of any 
process by which the CMS ``designates'' urgent care facilities. Rather, 
the link in the Supplementary Information section of the proposed rule 
leads to the CMS website listing of places of service codes (POS) used 
for billing purposes. The commenter further stated that while CMS does 
designate POS codes that providers must use to bill for services, this 
does not result in CMS designating specific facilities as specific 
types of providers. We appreciate the commenter's input and agree that 
VA's proposed rule was not sufficiently clear on this issue. We are 
amending the definition of urgent care in paragraph (b)(5)(i) to state 
that urgent care includes services available from entities or providers 
submitting claims for payment as a walk-in retail health clinic (CMS 
Place of Service code 17) or urgent care facility (CMS Place of Service 
code 20). This concept had previously been included in the introductory 
language of paragraph (b)(5), but is now, with minor revisions, being 
relocated to paragraph (b)(5)(i), which has subsequently resulted in a 
renumbering of the other clauses and conforming amendments to other 
provisions of the regulation citing these provisions.
    The same commenter stated that relying on Medicare POS codes is not 
an appropriate means to define urgent care providers. The commenter 
suggested that VA broaden the definition of urgent care to include all 
providers or facilities that provide episodic walk-in or urgent care 
services to Medicare beneficiaries. We think that the reliance on 
entities or providers who furnish services and bill as POS 17 or 20 
facilities is consistent with the scope of services established under 
section 1725A. These facilities generally offer clinically appropriate 
and convenient care. See S. Rpt. 115-212, page 18. We recognize that VA 
was not required to limit the types of services to those available from 
providers who submit claims for payment under POS 17 and 20, but we 
believe that the services available from these types of facilities 
would offer a clear and readily verifiable distinction between those 
facilities that are included and those that are not.
    A commenter recommended that Congress add a new benefit similar to 
the commercial Silver Sneakers to provide overweight veterans with 
limited income assistance in weight reduction. This comment recommends 
action by Congress on a separate program, which is beyond the scope of 
this rulemaking. We are not making any changes based on this comment.
    One commenter stated that VA needs to provide dental services for 
veterans. Although the proposed rule was silent on dental care, we are 
clarifying in Sec.  17.4600(b)(5)(ii)(A) that dental care is not 
covered under the urgent care benefit. Eligibility for dental care is 
complex and a limited number of eligible veterans qualify for this 
benefit under 38 U.S.C. 1712. In addition, there are a limited number 
of urgent care facilities that provide dental care. Eligible veterans 
seeking dental care will need to contact their local VA Dental Service. 
We are not making any changes based on this comment.

Comments on Medications Prescribed in Urgent Care Visit

    Several commenters questioned how veterans would fill prescriptions 
that were prescribed during an urgent care visit. The commenters raised 
the following questions: What does a veteran need to do to get a 
prescription filled? would a veteran submit the prescription to VA and 
wait another week to obtain the prescription? what is the procedure for 
obtaining prescriptions? and who is responsible for the cost and what 
is the cost? Another commenter stated that they were in favor of the 
proposed rule, but added that for service to be effective, urgent care 
should include prescriptions. A commenter stated that the rule should 
specify that medications prescribed during an urgent care visit should 
be limited to a two-week supply. Another commenter recommended that VA 
address non-VA physicians' writing prescriptions for veterans eligible 
for non-VA care adding that those veterans should be allowed to have 
those prescriptions filled by a pharmacy.
    As discussed above, VA is adding a new paragraph (e) to state that 
veterans will be allowed to have prescriptions written by the urgent 
care providers filled by VA. In addition, prior to the deployment of 
the new community care network contract, veterans who need a short-term 
medication (14 days or less fill) immediately may take it to any 
pharmacy and have it filled at their expense and be reimbursed by VA. 
Upon deployment of the Community Care Network contract, veterans will 
be able to use contracted pharmacies to fill the immediate need 
medications without paying out of pocket.
    Long term medications must be sent to VA to be filled by VA, 
typically through a Consolidated Mail Outpatient Pharmacy. The 
copayments for medications under the new urgent care benefit follow 
VA's tiered medication copayment system. For more information on 
medication copayments see 38 CFR 17.110(b) or https://www.va.gov/COMMUNITYCARE/revenue_ops/copays.asp#Medications. We are not making any 
changes beyond the inclusion of paragraph (e) based on these comments.

Comments on Information Included on Website and Communications

    Many commenters had concerns about how information regarding the 
new urgent care benefit would be disseminated to veterans and what type 
of information would be included on VA's website. Several commenters 
had suggestions on the type of information that should be provided on 
the website and the type of information that should be communicated to 
veterans on this benefit.
    One commenter recommended that the rule should focus more on the 
importance of creating a website that outlines urgent care in an 
accessible way. The commenter stated that the website should include 
the name, locations, contact information for the qualifying non-VA 
entity or provider, and the type of care that a veteran is eligible to 
receive. Similarly, several commenters wanted to ensure that veterans 
would be able to see which providers would be covered, whether 
preauthorization would be required, and

[[Page 26008]]

the scope of services (what constitutes episodic care versus 
longitudinal care). Similarly, another commenter encouraged VA to 
ensure that information about available services is carefully defined, 
vetted, and communicated clearly to veterans. Another commenter stated 
that, as proposed, the information about the scope of services offered 
should be ``site specific,'' and the directory of locations should be 
updated regularly to ensure accuracy. A commenter added that in order 
for the program to be successful, VA must make it easy for the veteran 
to identify urgent care facilities within their community. Along with 
information regarding scope of services and locations, the commenter 
urged VA to also include information about the required copay amounts 
that veterans will be charged when seeking urgent care. In addition, 
one commenter was concerned how veterans will know that they are 
eligible for urgent care, particularly in cases when driving time, as 
determined by geospatial mapping can be disputed.
    VA agrees with the commenters that it is important to provide 
veterans with information on the new urgent care benefit. Veterans will 
have access to urgent care benefit information on VA's website 
(www.va.gov), and they can call their local VA medical facility to 
confirm eligibility. The website, which will be updated regularly, will 
include information on eligibility, examples of excluded services, 
copayment requirements, and a list of qualifying non-VA entities or 
providers. We are making one minor edit to this portion of the rule, to 
clarify that VA's website will provide the information described above. 
It is possible that in the future, much of this information will be 
presented on a contractor's website, so to avoid duplicating content 
(or potentially creating inconsistencies between two sites), we are 
revising the rule to not state that VA's website will contain this 
information, but merely provide it. If, in the future, a contractor's 
website is used, VA's website will provide veterans the information 
they need through links to these third party sites. To clarify for the 
commenters, any enrolled veteran who has received VA care under chapter 
17 in the last 24-months is eligible for the urgent care benefit. Drive 
time and geospatial mapping are not a consideration for the new urgent 
care benefit. In addition, only urgent care received from a qualifying 
non-VA entity or provider will be covered under the benefit; veterans 
obtaining urgent care from out-of-network providers will be responsible 
for the cost of the care.
    Another commenter stated that VA should publish a website 
containing information on urgent care. However, if this website 
experienced technical difficulties, the commenter asked if veterans 
would be able to use a 24 hour a day/7 day a week/365 day a year toll-
free number to verify whether a non-VA provider or entity is in VA's 
network. VA agrees with the need to provide this information through 
other means, and eligible veterans may call their nearest VA medical 
facility, which will have a list of authorized providers. VA fact 
sheets on this benefit will list both the online web address and call-
in numbers. However, this is an operational matter and does not require 
regulation, so we are not making changes to the rule based on these 
comments.
    Another commenter recommended that VA provide notice to veterans of 
the proposed rule changes upon implementation. The commenter indicated 
that simply providing this information on the VA website will not be 
sufficient notice and that VA should post this information in prominent 
places within each VA medical facility, including information about the 
location of the nearest urgent care centers. VA agrees that 
communication about this benefit will be crucial, and as a result, VA 
is developing posters, fact sheets, and other guidance that will detail 
what care and services are included in the urgent care benefit and will 
be provided when the new benefit goes into effect. The name and 
location of qualifying non-VA entities or providers will be available 
on VA's website or by contacting VA. We are not making any changes 
based on this comment.
    A commenter stated that VA would publish a website with the 
information on the non-VA entities or provides but questioned how often 
this site would be updated to indicate additions to the list as well as 
deletions from the list. The commenter added that without requiring 
prior approval from VA, a veteran could, through no fault of his or her 
own, receive services from a non-VA provider who is no longer approved 
for the program. VA will update the list of qualifying non-VA entities 
and providers under this program on a regular basis. VA is not making 
any changes based on this comment.
    A commenter recommends that preventative measures be in place to 
alert veterans prior to incurring charges that they will be liable for 
the costs of care. VA will provide urgent care benefit information on 
VA's website at www.va.gov, which will include information on veteran 
eligibility for the benefit, available services, and qualifying non-VA 
entities or providers. If a veteran is not eligible, receives services 
that are not covered, or receives care from an out-of-network provider, 
the veteran may be responsible for the cost of that care.
    Another commenter was concerned that the VA website will not 
provide sufficient information for veterans to allow them to determine 
whether a retail walk-in care clinic or the more extensive range of 
services available at an urgent care facility better suits their needs. 
VA will provide information on qualifying non-VA entities and providers 
on a website. Veterans will also be able to call the qualifying non-VA 
entity or provider to determine which services they provide. VA 
believes this will allow them to determine which qualifying non-VA 
entity or provider can best address their particular needs. In addition 
to VA's website, VA is developing posters, fact sheets, and news 
releases to educate and inform veterans, VSOs and community providers 
about the new benefit. VA will be able to update this information to 
reflect concerns, trends, and advances in this benefit as needed.
    Another commenter stated that new rules need to be very clearly 
defined and that VA should post flyers in every VA medical facility as 
well as mail such flyers to accredited Veteran Service Offices, County 
Veteran Service Offices, and Tribal Veteran Service Offices. VA is 
developing guidance on the changes to health care and services that 
will be provided under 38 U.S.C. 1725A. This guidance will be widely 
distributed in a variety of formats to veterans, Veterans Service 
Organizations (VSO), and the public. We are not making any changes 
based on these comments.
    Another commenter recommended that VA provide patient and clinician 
education regarding aspects of this proposed rule. VA will provide 
training and education on our website for both providers and veterans. 
In accordance with section 121 of the MISSION Act, VA will be 
developing and administering an education program that teaches veterans 
about their health care options through VA; moreover, VA will be 
communicating with veterans through multiple avenues, with VA's website 
being the most comprehensive method of obtaining information on the new 
urgent care benefit. Additionally, as required by section 122 of the 
MISSION Act, VA is developing and implementing a training program to 
train employees and contractors of the Department on how to administer 
non-VA health care programs, including the

[[Page 26009]]

urgent care benefit. We are not making any changes to the rule based on 
these comments.
    One commenter stated that veterans should not have to make 
telephone calls to arrange for or confirm care. VA agrees with the 
commenter and is constantly searching for new avenues to expand veteran 
access for health care services. In addition to traditional in-person 
or telephone scheduling of appointments, veterans can communicate with 
their medical team using secure email via the My HealtheVet portal, and 
many services are now available electronically via video telehealth, 
allowing veterans to schedule appointments and even to receive face-to-
face care from their home, office, or other location without traveling 
to a VA facility. We are not making any changes based on this comment.
    We note here we made minor revisions to Sec.  17.4600(a) to clarify 
the scope of the urgent care benefit under this rulemaking. 
Specifically, we emphasize that eligible veterans may obtain urgent 
care in accordance with the requirements and processes set forth in 
this section, and that qualifying non-VA entities or providers must be 
in VA's network and will be identified in accordance with paragraph 
(c)(2). We regard these are clarifying edits only. We also make minor 
clarifying edits to paragraph (c)(2) to note the website will provide 
information on urgent care, and that the contact information will be 
for qualifying non-VA entities or providers from which urgent care is 
available under this section.

Comments on Emergency Care

    Many commenters had suggestions and recommendations regarding the 
inclusion of emergency care or emergency follow-up care as part of this 
benefit.
    Several commenters suggested that a patient should be admitted to a 
local non-VA hospital at VA expense if the urgent care provider deems 
it necessary. Similarly, some commenters questioned what would happen 
if a veteran seeks care in an urgent care clinic and during this visit 
the health care professional determines that the veteran requires 
emergency care--would the veteran be billed for the subsequent 
emergency care visit? Another commenter requested that VA allow access 
to emergency care without pre-authorization. Another commenter 
similarly stated that they lived 45 miles from their nearest VA medical 
facility and that they should be able to visit their local hospital 
emergency room (5 miles away) in the event they encounter an emergency. 
Several other commenters suggested that the rule should also include 
emergency room care. Another commenter also stated that veterans should 
have access to urgent care for the emergency treatment of conditions 
incurred in service.
    The intent of this rulemaking is to provide eligible veterans the 
ability to receive treatment for certain, limited, non-emergent care 
from approved walk-in retail health clinics and urgent care centers. 
The authority for this new benefit, section 1725A, precludes the 
inclusion of emergent care by its definition of walk-in care in 
1725A(h). Therefore, any emergent care deemed necessary by the urgent 
care provider will not be provided under section 1725A and the urgent 
care benefit. Instead, VA's authority to provide emergency treatment in 
the community is 38 U.S.C. 1725 and 38 U.S.C. 1728. The eligibility 
criteria for emergency treatment in the community are defined through 
these statutes and their implementing regulations and are also 
administered separately. Veterans seeking emergency care may be liable 
for the cost of such care. We are not making any changes based on these 
comments.
    A commenter additionally stated that Congress should give VA the 
ability to pay copayments, even in the case of emergency. We appreciate 
the commenter's suggestion, but as noted in the comment itself, this 
would require Congressional action. As such, this is beyond the scope 
of the rulemaking, and we are not making any changes based on this 
comment.
    One commenter suggested that the urgent care benefit under 38 
U.S.C. 1725A meant care provided in non-VA emergency rooms and that 
veterans would now be charged for emergency room care. As previously 
stated in this rulemaking, the current regulations that address 
emergency room care at non-VA medical facilities will not be amended by 
this rule. We are not making any changes based on this comment.
    Several commenters stated that patients are often confused between 
the definition of urgent care and emergency care and encouraged VA to 
clearly define what is meant by urgent care, and how this is 
distinguished from emergency care. The term emergency treatment is 
defined in statute at section 1725(f)(1)(B) as care or services 
rendered in a medical emergency of such nature that a prudent layperson 
reasonably expects that delay in seeking immediate medical attention 
would be hazardous to life or health. Urgent care, as defined in the 
proposed rule, is care that does not require immediate, emergent 
medical attention. If veterans are unsure whether or not they are 
having a medical emergency, they should call 9-1-1 or visit their 
nearest emergency room. We are not making any changes to the rule based 
on these comments.

Comments on Contracts With Non-VA Entities or Providers and Billing

    Several commenters requested that community health care providers 
accepting Medicare or Medicaid be required to accept veterans and that 
veterans be able to receive care at any facility. Health care providers 
are independent businesses, licensed by the State in which they are 
offering health care services to the public. There are no statutes or 
Federal regulations that require an independent business to contract 
with a Federal agency to provide health care services without the 
consent of the provider. The comment addresses VA's community care 
program more broadly and is thus beyond the scope of this rulemaking, 
which is limited just to the urgent care benefit.
    One commenter questioned how the contracts between the urgent care 
facilities and VA would be written, specifically asking if VA or the 
veteran will be the payer. The commenter indicated that the veteran 
should not be billed when VA fails to pay the urgent care facility 
timely. One commenter was also concerned that the non-VA entities or 
providers may not accept VA patients because VA has not issued payments 
timely. Similarly, another commenter further questioned whether the 
payment to the urgent care facility will be faster than similar 
payments to care in the community. The commenter was concerned that if 
the payment to the urgent care facility takes too long, the bill for 
care could be sent for collection, destroying the veteran's credit 
rating. Also, the commenter asked what would happen if VA took too long 
to pay and the urgent care facility billed the veteran's Medicare or 
other health insurance, incurring a bill above the VA copayment saying 
that they gave VA a reasonable amount of time to pay. Qualifying non-VA 
entities or providers must have a contract, agreement, or other 
arrangement to furnish benefits under this section. The terms of these 
contracts or agreements will define the provider's ability to seek 
payment and VA's responsibilities for payment. VA will be administering 
this benefit through a managed network, where VA has a contractual 
relationship with a third-party administrator (TPA) that in turn has 
contracts or agreements with a network of providers. Payments are 
similarly separated--VA pays the TPA,

[[Page 26010]]

and the TPA pays the provider. We believe that these arrangements 
provide sufficient assurances that eligible veterans will not be billed 
for urgent care furnished by qualifying non-VA entities or providers. 
As we have stated previously, though, if an eligible veteran received 
urgent care from an entity or provider that is not a qualifying non-VA 
entity or provider, VA would have no contract or mechanism to prohibit 
that provider from billing the veteran. We recommend veterans contact 
VA if they have any question as to whether or not the walk-in retail 
health clinic or urgent care center they are planning to access is in 
VA's network. We are not making any changes based on this comment.
    A commenter indicated that the proposed rule would increase access 
to much needed health care. However, the commenter was concerned that 
non-VA doctors would not want to enter into contracts with VA because 
the pay may be less than their regular fees. VA has entered into 
contracts with TPAs to administer this benefit, and we believe the 
payment rates for providers under these contracts are sufficient to 
maintain an adequate network of providers because they are comparable 
to rates negotiated by other Federal health care agencies and third-
party health plan contracts. We are not making any changes based on 
this comment.
    A commenter recommended that if an agreement currently exists with 
a non-VA provider or entity, VA should amend such contracts by adding 
an addendum to include urgent care. The commenter wanted to avoid 
creating a separate agreement for urgent care because it would cause an 
undue burden on the non-VA entity or provider and having said addendum 
would fast track the process and bring needed service expansion to 
eligible veterans. The method VA uses to procure these services is 
outside the scope of this rulemaking, which deals exclusively with the 
scope of the benefit, not how it will be purchased. We are not making 
any changes based on this comment.
    Another commenter stated that the rule would be a huge advantage 
for veterans to receive timely access to urgent care services. However, 
the commenter cautioned that CMS should impose strict billing 
guidelines so that veterans do not end up with surprise bills. The 
commenter suggested that facilities and providers be attested with CMS 
and thoroughly perform Recovery Audit Contractors (RAC) audits of any 
facility treating veterans. Another commenter cautioned that VA must 
make certain that veterans are not burdened with a financial obligation 
beyond the copayment. We note that CMS billing is not applicable to VA; 
while VA generally pays CMS rates, CMS does not pay claims on VA's 
behalf or audit VA's community network of providers. VA does not 
anticipate veterans will have surprise bills for the reasons described 
above concerning VA's contractual arrangements with TPAs, and the TPAs' 
relationships with providers. Veterans will only be charged a copayment 
for the services, if applicable, by VA. However, as noted, care that is 
provided to a non-eligible veteran or by a non-qualifying entity or 
provider could be billed to the veteran. We are not making any changes 
based on these comments.
    Another commenter was concerned that VA contracts with retail walk-
in clinics and urgent care centers will not adequately address the 
difference in the care offered by the various types of retail walk-in 
clinics versus urgent care centers. VA understands and appreciates the 
differences and similarities between the types of care offered at 
urgent care facilities and walk in care clinics in the private sector. 
VA will provide information on a website on the qualifying non-VA 
providers and entities. VA believes that veterans will be able to call 
the qualifying non-VA entity or provider would best address their 
needs. We are going to have TPA contracts that require the TPA to 
provide a network of providers to furnish these services on our behalf. 
VA appreciates the commenters concern and will ensure that the 
information available to veterans is adjusted to ensure veterans 
understand this benefit and can use it as intended. The veteran will be 
able to go to whichever contracted facility has the service that they 
require.
    One commenter requested clarification on the process stated in 
proposed Sec.  17.4600(b)(4) stating that VA will enter into an 
agreement with non-VA entities or providers to furnish urgent care. The 
commenter stated that they believed that it is in the best interest of 
the veteran that a streamlined process be established to ensure the 
availability of urgent care to veterans, particularly those who live in 
rural areas. The commenter also requested that VA specify that the 
payment for urgent care services will be at the same rates Medicare 
pays the specific providers for those services. VA will be contracting 
with TPAs to provide urgent care. The payment rate for care and 
services will be included in the terms of the contract. We are not 
making any changes based on these comments. We revise the proposed 
definition of a qualifying non-VA entity or provider to recognize 
explicitly that VA intends to use third-party administrators to make 
urgent care available to veterans. In implementing this authority, VA 
intends to utilize contracts with non-VA entities, third-party 
administrators, to furnish services under this section. The third-party 
administrators would, in turn, have their own contracts or agreements 
with direct care providers in the community that furnish urgent care to 
veterans under this section. To remove any ambiguity as to what we mean 
when we refer to qualifying non-VA entities or providers in this 
regulation, we are recognizing this arrangement with this new language. 
This is consistent with both the plain language of the statute, as well 
as Congressional intent. In a Committee report, the Senate Veterans' 
Affairs Committee stated in the context of section 1725A(c) that, ``It 
is the Committee's intent that the authority in this section be 
exercised nation-wide, among several types of entities or providers to 
ensure adequate coverage, so that all veterans have the option of 
utilizing this convenient, walk-in care.'' S. Rpt. 115-212, p. 19.
    One commenter suggested that VA should consider changing its 
current policy to serve as the secondary payer for urgent non-service 
connected care delivered in the community. VA does not have authority 
to act as a secondary payer for urgent care; such a change would 
require Congress to amend VA's statutory authority. We are not making 
any changes based on this comment.
    A commenter was concerned how VA would qualify the non-VA entities 
or providers as ``approved'' vendors. VA will be entering into 
contracts or agreements with TPAs to access a network of urgent care 
centers and walk-in retail health clinics to create a network of 
qualified local providers. VA defines a qualifying non-VA entity or 
provider to mean a non-VA entity or provider that has entered into a 
contract, agreement, or other arrangement with VA to furnish urgent 
care. We are not making any changes based on these comments.

Comments on Information Sharing With Community Providers

    Multiple commenters had concerns and suggestions regarding medical 
record sharing with qualifying non-VA entities or providers.
    One commenter indicated that strategically-placed partnerships with 
urgent care providers must be combined with bidirectional access to the 
veterans' medical data through VA provided highly secure encrypted 
hardware that will not locally store

[[Page 26011]]

personal health information (PHI). Another commenter similarly stated 
that VA medical records should be shared with the urgent care clinics. 
One commenter suggested that physicians and insurers enroll and certify 
in VA-mandated reporting and integration of the veterans' medical 
records. A commenter proposed that VA set forth the expectation that 
non-VA entities or providers must provide electronic interoperable 
visit summaries to VA so that this information can be added to the 
electronic health record. The commenter further stated that submission 
of these visit summaries should be a condition for payment. Another 
commenter worried that the urgent care provider would not be able to 
provide the veteran the best care needed because the provider does not 
have access to the veteran's VA health record at the time of the urgent 
care visit. The commenter also noted that this lack of access to 
medical records may, in turn, not reflect that the veteran is addicted 
to opioids, or the urgent care facility could dispense medication that 
may adversely interfere with a medication that has been prescribed by 
VA. Another commenter suggested that non-VA urgent care entities 
possess the information technology capabilities to be able to interface 
with VA electronic medical record system.
    Section 1725A(e) of 38 U.S.C. requires VA to ensure continuity of 
care for this new benefit; specifically, VA is required to establish a 
mechanism to receive medical records from walk-in care providers and 
provide pertinent medical records to providers of walk-in care. VA 
participates in industry standard Health Information Exchanges (HIE) to 
share medical records, which has security measures in place to protect 
the veteran's medical records. If the provider does not participate in 
an HIE, VA can provide pertinent medical records through other means, 
including through requesting access to a secure web-based version of 
veterans' medical records (Community Viewer). Therefore, although VA 
acknowledges the commenter's concern about potential negative health 
outcomes, which include adverse reactions to medications or substance 
abuse of opioids, if the qualifying non-VA entity or provider is not 
provided access to the veteran's medical records, VA has systems in 
place, either through the HIE or through community viewer, to make the 
needed health information available to the qualifying non-VA entity or 
provider at the point of care.
    Continuity of care will be managed because the urgent care provider 
must submit medical documentation back to VA so that the veteran's VA 
provider has access to the information. If further treatment is 
required, the veteran is responsible for contacting VA to coordinate 
any follow-up care. We are not making any changes based on these 
comments.

Comments on Other VA Health Care Programs

    Many commenters submitted comments related to VA's Community Care 
Program or Veterans Choice Program. These comments are beyond the scope 
of the rulemaking as this rulemaking only implements 38 U.S.C. 1725A, 
which is distinct from VA's authority to provide the care in the 
community generally under 38 U.S.C. 1703, as amended by section 101 of 
the MISSION Act. However, we are summarizing them here in the interest 
of transparency.
    One commenter indicated that they wanted to comment on the first 
two items of the VA News Letter dated January 30, 2019. Because the 
commenter could not find a comment section in the VA News Letter, the 
commenter decided to comment on the rule. The commenter added that 
urgent care was the third item, for which they didn't provide a 
comment. Instead, the commenter requested more information on the 
grandfathering of the Veterans Choice Program and the qualification 
standards for the new access standards for the program that would 
replace the Veterans Choice Program. Another commenter asked if the 
proposed rule would mean that if a veteran lives more than 30 minutes 
away from their nearest VA medical facility the veteran can do all of 
their health care outside VA. Multiple commenters stated that they 
routinely had their appointments cancelled when they sought care in the 
community and that the average wait time for the appointment was five 
to six months. One commenter added that they had no choice in where to 
receive the care in the community because the VA physician ordered the 
appointment. A commenter similarly asked if the proposed rule means 
that since it takes a month to get a VA mental health appointment, the 
veteran can go to a local health care provider. Another commenter 
suggested that the drive distance to obtain urgent care should be 50 
miles. The commenter stated that they had to receive care from 
emergency rooms because they were not able to obtain an appointment in 
a VA medical facility timely. Another commenter stated that the 
proposed new travel distances, travel times, and appointment wait times 
do nothing to improve a veteran's care. The commenter further stated 
that changing from travel distance to travel time criteria will allow 
more veterans in metropolitan areas where there are large VA hospitals 
to use non-VA providers, which will deplete VA funds and deprive rural 
veterans of non-VA care for services not provided in smaller VA 
hospitals and clinics. Another commenter concurs with the proposed 
access standards and holds VA accountable for meeting, if not exceeding 
them. Another commenter also states that distance and time are major 
factors when someone is suffering from injury or pain and mentions that 
the 40 mile criterion is essential for all rural areas. Similarly, a 
commenter questioned if the proposed rule meant that the veteran can 
find a local cardiologist rather than the 75-mile drive to the nearest 
VA medical facility.
    This rulemaking does not implement or affect eligibility under 
section 1703 for VA's Community Care Program of Veterans Choice 
Program. Travel distances are also not a consideration for urgent care. 
Section 1725A does not place a mileage limit for non-VA entities or 
providers that would offer urgent care. VA will enter into contracts or 
agreements with qualifying non-VA entities or providers within the 
community, and we believe this will expand access to care in the 
community (through additional locations) and in VA facilities (by 
freeing up some resources). These comments are beyond the scope of the 
rulemaking. We will not make any changes to the rule based on these 
comments.
    One veteran was not in favor of the rule, stating that the rule 
morphs fee basis in name only in an attempt to convince veterans that 
something has changed for the better. The commenter recommends that VA 
replace the Choice Act with the Civilian Health and Medical Program of 
the Department of Veterans Affairs (CHAMPVA). The Veterans Choice 
Program authorizes VA to furnish hospital care and medical services to 
eligible veterans, as defined in Sec.  17.1510, through agreements with 
eligible entities or providers, as defined in Sec.  17.1530. See 
Sec. Sec.  17.1500 through 17.1540. The authority for the Veterans 
Choice Program is Sec. 101, Public Law 113-146, 128 Stat. 1754, as 
amended, and VA's authority to furnish care and services under that 
Program will end on June 6, 2019. CHAMPVA furnishes medical care to 
certain dependents and survivors of active duty and retired members of 
the Armed Forces and is authorized under 38 U.S.C. 1781. The proposed 
rule did not address the Veterans Choice Program, the Veterans 
Community Care Program, or CHAMPVA, and any comment regarding

[[Page 26012]]

those programs is beyond the scope of this rulemaking.

Comments on Quality

    Several commenters were concerned that the quality of providers at 
urgent care facilities would not be as good as the quality of care 
veterans receive at VA facilities. One commenter stated that VA already 
provides same-day access to veterans at every VA facility. The 
commenter stated that this is the preferred source of care in terms of 
quality, cost effectiveness, and coordination of care. If there are 
staffing or space needs to ensure same day urgent care access at every 
VA facility, that should be addressed first through oversight and 
funding to fill the over 40,000 unfilled positions in the Veterans 
Health Administration. Another commenter recommended that treatment for 
rated illnesses and complex issues should be under tighter VA control 
and tight certification of non-VA providers. VA agrees with the 
commenter that quality health care services are important; therefore, 
we have revised the procedures under Sec.  17.4600(c) to add a new 
paragraph (4) that states that urgent care furnished under this section 
must meet VA's standards for quality established under 38 U.S.C. 1703C, 
as applicable. We note that VA's standards for quality may not be fully 
incorporated into the contracts or agreements by the effective date of 
this regulation, or some standards may refer to population-based 
metrics that are not relevant in individual circumstances, and 
therefore we have included the language ``as applicable'' to 
demonstrate that urgent care will only be required to meet the 
standards for quality once those standards have been articulated and 
are in the contracts or agreements. VA reiterates that it is solely the 
veteran's choice whether to seek urgent care at a qualifying non-VA 
entity or provider or seek care at a VA facility. VA further notes that 
the funding to fill the over 40,000 VA unfilled positions as stated by 
the commenter is beyond the scope of the proposed rule.
    A commenter stated that there must be a mechanism to generate data 
to assess quality improvements and cost savings and accountability for 
the $1.4 billion in spending for the urgent care benefit. VA is working 
on processes to assess quality improvements and cost savings for the 
benefit. We will conduct reviews once the benefit is implemented. 
However, as these are internal administrative matters, we are making no 
changes to the rule based on this comment.
    A commenter questioned how the proposed rule would affect providers 
and what provisions are being taken to ensure there is no provider 
burnout as clinical roles have a high burnout rate. The commenter added 
that it would be unfortunate to have greater access, but poorer quality 
of care due to burnout. We do not expect this benefit would affect or 
contribute to provider burnout. If the commenter is referring to 
qualifying non-VA entities or providers, they are independent 
businesses, licensed by the individual States in which they are 
offering health care services to the public. It is their 
responsibility, and in their interest, to determine how many patients 
can be treated. VA agrees with the commenter that quality health care 
services are important; therefore, VA will require the urgent care 
furnished under this section to meet VA's standards for quality under 
section 1703C. If the commenter is referring to burnout of VA health 
care professionals, although the proposed rule itself does not address 
provider burnout, VA is using VA patient aligned care teams (PACT) help 
manage the flow of care and information. Several studies have shown 
PACTs to be associated with lower provider burnout.\1\ We are not 
making any changes based on this comment.
---------------------------------------------------------------------------

    \1\ Karin M. Nelson, MD, MSHS; Christian Helfrich, MPH, Ph.D.; 
Haili Sun; et al: Implementation of the Patient-Centered Medical 
Home in the Veterans Health Administration Associations With Patient 
Satisfaction, Quality of Care, Staff Burnout, and Hospital and 
Emergency Department Use: JAMA Intern Med. June 23, 
2014;174(8):1350-1358; Christian D. Helfrich, MPH, Ph.D., Joseph A. 
Simonetti, MD, MPH, Walter L. Clinton, Ph.D.; et al: The Association 
of Team-Specific Workload and Staffing with Odds of Burnout Among VA 
Primary Care Team Members: J Gen Intern Med February 23, 
2017:32(7):760-6.
---------------------------------------------------------------------------

    A commenter stated that the proposed rule should address quality as 
well as access. The commenter urged VA to include in the contracts with 
the non-VA entity or provider a requirement that they have earned the 
National Committee for Quality Assurance Patient-Centered Connected 
Care Recognition. The commenter indicated that this program is designed 
to help ensure that urgent, retail, and other clinics connect and 
coordinate with the patient's primary care provider. The commenter 
further stated that Patient-Centered Connected Care Recognition creates 
a roadmap for how urgent care and retail clinics can fit into the 
medical neighborhoods of Patient-Centered Medical Homes and Patient-
Centered Specialty Practices, which closely align with the VA MISSION 
Act of 2018's non-urgent care quality standards by avoiding re-creating 
the wheel and requiring non-VA entities or providers to meet ready-made 
standards. The National Committee for Quality Assurance (NCQA) is a 
private organization that contracts its services out to the private 
sector and government agencies to assist them with measuring and 
improving quality. Another commenter suggested that non-VA entities 
receive Joint Commission accreditation prior to being included in the 
VA urgent care network of providers. The commenter also indicated that 
the proposed rule does not mention assessing quality metrics for the 
non-VA entities or providers who will provide urgent care services. The 
commenter recommends that every provider should be pre-screened for 
equivalent credentials, training, and expertise that is required of VA 
health care professionals. Lastly, the commenter recommended that every 
provider of urgent care should track and report quality processing and 
outcomes of the veteran patients in order to adequately assess the 
quality of care provided.
    As stated before, VA agrees with the commenters that quality health 
care services are important; therefore, we have revised the procedures 
associated with urgent care under Sec.  17.4600(c) to include a new 
paragraph (4) that states that urgent care furnished under this section 
must meet VA's standards for quality established under 38 U.S.C. 1703C, 
as applicable. We are not making any changes based on this comment.
    A commenter stated that VA is the national leader in integrating 
primary care and mental health, and they believe that walk-in clinics 
will result in inferior, fragmented mental health care by providers 
with significantly less training and supervision. Although the majority 
of the care provided for mental health is generally considered 
longitudinal care, if a veteran has a need for urgent mental health 
care, they may receive such care through this benefit. VA emphasizes 
that long-term mental health care should be coordinated through the 
veteran's primary care provider and not through the urgent care 
benefit. VA has also been expending resources to expand access to 
immediate and urgent mental health care, and we believe that better 
patient outcomes can be achieved by furnishing such care through VA. In 
2007, VA established the Veterans Crisis Line, which provides 
confidential support to veterans in crisis. Veterans, as well as their 
family and friends, can call, text, or chat online with a caring, 
qualified responder, regardless of eligibility for VA care or 
enrollment in VA's health care system. VA is committed to

[[Page 26013]]

providing free and confidential crisis support to veterans 24 hours a 
day, 7 days a week. In addition, VA has implemented a ``no wrong door'' 
philosophy so that every VA employee will assist veterans in need.

Comments on VA Staffing, Hiring, and Budget

    Several commenters had concerns and suggestions regarding internal 
VA structure, including VA's staffing, hiring, and budget 
considerations. We are addressing the comments related to these 
subjects in this section, but because they are outside the scope of 
this rulemaking, we will not be making changes as a result of these 
comments.
    Multiple commenters expressed concerns that, absent increased and 
dedicated funding by Congress equal to the actual costs of the new 
urgent care program, which they noted may be grossly underestimated by 
the administration and the Congressional Budget Office, funds may be 
diverted from traditional medical services within VA or other VA 
services. One commenter suggested Congress should provide funding for 
double the estimated usage. Another commenter strongly urged VA to work 
with Congress to provide the necessary additional funding to existing 
VA medical facilities that have the capability to provide urgent care 
services. VA performed an actuarial analysis to estimate the total cost 
of the increased reliance that would result from the new MISSION 
standards. We will continue to monitor resource needs and utilization 
and respond accordingly. The provision of funds from Congress for the 
urgent care benefit is beyond the scope of the proposed rule.
    Several commenters stated that privatizing VA health care, or any 
move towards privatization, is the wrong move and will eventually harm 
veterans and cost taxpayers hundreds of billions of dollars in 
giveaways to the private sector. VA has no intention to privatize and 
does not believe that this benefit moves towards privatization. The 
purpose of this benefit is to implement section 1725A by providing 
veterans a convenient option for seeking episodic care.
    One commenter additionally suggested that because the government 
already has TRICARE and Medicare, VA should authorize a special class 
of eligible users and provide separate funding for the anticipated 
impact that would allow veterans more access to civilian care, but 
within already established program channels. TRICARE and Medicare are 
not entities that are governed by VA and, as such, the substitution of 
VA care for these two benefits is beyond the scope of the proposed rule 
and is neither authorized nor even contemplated by law. We are not 
making any changes based on these comments.
    Multiple commenters were concerned with the rule because they 
believe that veterans' care should be managed by VA. VA is the primary 
provider of care and services to veterans; the proposed rule will not 
change that. The proposed rule will increase veterans' access to care 
and services available from local community providers in limited 
circumstances. VA believes that the implementation of this new benefit, 
as structured, will encourage veterans to seek care from VA facilities 
for primary and longitudinal care and only access urgent care when 
necessary and appropriate to treat an episodic condition.
    One commenter suggested that VA staff VA medical facilities with 
medical personnel from the Reserve and National Guard to accomplish 
their active duty training. The commenter added that VA should 
incentivize civilian workers and retired medical persons to volunteer 
their services, possibly under the supervision of an active duty 
medical person. We appreciate the commenter's suggestion; however, the 
appointment of health care professionals as VA employees or volunteers 
is beyond the scope of the proposed rule. We are not making any changes 
based on this comment.
    One commenter suggested that VA medical facilities have longer 
operating hours and use local doctors and nurses to work in VA medical 
facilities. In doing so, VA would not have a need to use the Veterans 
Choice Program. The operating hours of VA medical facilities are beyond 
the scope of the proposed rule, but we note that VA is implementing the 
Improving Capacity, Efficiency, and Productivity initiative, a 
collaboration among VA offices focused on creating efficient practice 
solutions, including offering extended hours (evenings and Saturdays), 
using telehealth and video appointments, providing facilities with 
appropriate guidance for overbooking, and adopting point-of-care 
scheduling. We are making no changes based on this comment.
    One commenter stated that VA cannot staff their VA medical 
facilities and questioned why VA was trying to make veterans think that 
VA could open walk-in clinics. Although VA provides same-day services 
at VA medical facilities, the urgent care benefit will not be creating 
new VA medical facilities to provide urgent care to eligible veterans, 
nor will it impose any new obligations on VA facilities in terms of 
care delivery. Urgent care will be furnished through qualifying non-VA 
entities or providers, as stated in 38 U.S.C. 1725A. We are not making 
any changes based on this comment.
    One commenter requested that VA fill the existing vacancies at all 
VA departments. The commenter added that not hiring persons for empty 
existing vacancies is causing problems for veterans. We presume that 
the commenter meant the hiring of VA health care professionals. The 
proposed rule addressed urgent care authorized by 38 U.S.C. 1725A. The 
hiring of VA health care professionals is beyond the scope of the 
proposed rule. We are not making any changes based on this comment.
    One commenter stated that one of the most important programs within 
the VA system is training of residents. The commenter expressed concern 
that a reduction in volume at VA facilities due to reliance on the new 
urgent care benefit may result in a reduction in this program, or a 
reduction in the types of training or opportunities it could provide. 
The commenter states that if these training programs for residents are 
reduced or eliminated it could have a far-reaching downstream effect, 
not only on the nation's veterans but on the nation as a whole. We do 
not believe that the urgent care benefit is a diversion of care away 
from VA medical facilities. We are not making any changes based on this 
comment.
    Multiple commenters addressed the need for triage or a nurse line. 
In particular, one commenter agreed that urgent care is a nice addition 
to VA health care, but believed that VA should have a few checks and 
balances for the use of urgent care. The commenter recommended that 
every veteran who seeks urgent care should be required to call their VA 
clinic or be provided triage or VA nurse helpline prior to running out 
and receiving urgent care. The commenter also recommended hiring more 
health care staff and manning a VA urgent care clinic after hours. The 
commenter stated that when possible, the health care needs of the 
veteran should be kept in the VA health care system. Veterans always 
have the ability to contact a VA call center or their VA or VA-
authorized primary care provider for guidance or to seek care within 
the VA health care system. However, pre-approval from VA is not a 
requirement for eligible veterans to receive urgent care, and this 
benefit is intended to be a supplement to existing VA services. We are 
not making any changes based on this comment.

[[Page 26014]]

    One commenter recommends delaying the implementation of the 
proposed rule. For the reasons stated under the Congressional Review 
Act heading below, we do not believe it would be in the public interest 
to delay the effective date of this rule. We are not making any changes 
based on this comment.

Comments on Veteran Eligibility and Other Benefits

    One commenter opposed the use of walk-in clinics to supplement the 
primary and specialty care provided by VA and demanded that VA place a 
firm limit on the number of times a patient may use these walk-in 
clinics and the type of services that will be provided, exercise 
oversight authority over these clinics as providers, and work to 
increase VA's ability to provide same-day access at VA facilities. VA 
agrees with the commenter as the urgent care benefit is not meant to 
supplant primary and specialty care provided by VA. VA is not limiting 
the number of visits, as VA is striving to ensure veterans will have 
access to convenient care when necessary. VA is limiting the types of 
services provided to ensure that preventive care is not provided 
through this benefit and the veteran's primary care is managed through 
the veteran's primary care physician. VA is working on increasing 
internal capacity at medical facilities while ensuring veterans have 
access to facilities to address urgent care needs.
    Several commenters recommended that VA allow veterans to present 
their VA medical card as insurance to any health care facility in the 
community. Another commenter similarly recommended that VA provide a 
State and County wide database that contains all of the veterans in the 
VA health care system that can be accessed by the attending physician. 
The commenter added that the chip in the veteran's VA or Veterans 
Choice Program card can be used for this purpose. Similarly, one 
commenter recommended that VA patient identification cards contain all 
the data related to the veteran's status, including priority group, 
enrollment status for the Veterans Choice Program (40 mile rule), and 
disability rating. The commenter also stated that if a care center or 
doctor accepts Medicare or Medicaid, they should also accept any 
authorized care, including Veterans Choice and Tri-West. Several 
commenters similarly stated that veterans should automatically receive 
urgent care at any non-VA entity or provider in the country by simply 
showing the VA card with the veteran's picture on it, and getting 
reimbursed by VA, rather than having to drive to the VA facility miles 
away. With today's technology, the commenter indicated that a veteran 
should not be making calls to arrange or confirm care. These comments 
all deal with programs or benefits that are beyond the scope of this 
rulemaking. While VA provides the Veteran Health Identification Card 
(VHIC) for veterans enrolled in the VA health care system, VA is not an 
insurance program and the cards do not provide proof of health 
insurance coverage. VA does not place the veteran's personal or medical 
information on electronic chips embedded in VA issued cards; instead, 
VA utilizes a secure national database available to VA clinicians and 
staff charged with the responsibility for providing care and services 
to eligible veterans. We are not making any changes based on these 
comments.
    One commenter indicated that they highly recommend physical therapy 
assistants and occupational therapy assistants as TRICARE providers. 
The commenter added that both health care professionals are supervised 
by physical therapists and occupational therapists and are an 
underutilized health care resource. The use of physical therapy 
assistants and occupational therapy assistants as TRICARE providers is 
beyond the scope of the proposed rule. We are not making any changes 
based on this comment.
    One commenter was concerned with what constitutes having received 
health care for purposes of meeting the 24-month eligibility 
requirement. Another commenter did not believe VA should limit the 
urgent care to veterans seen by VA within the last 24 months. The 
eligibility requirement is set forth in 38 U.S.C. 1725A(b), and VA 
cross-referenced this requirement in its proposed rule without further 
elaboration. However, as we explained, this provision of law requires 
the veteran be enrolled in VA's health care system and have received 
care under chapter 17 within the 24-month period preceding the 
furnishing of walk-in or urgent care. This latter requirement would be 
met in any of the following circumstances: Care provided in a VA 
facility, care authorized by VA performed by a community provider, care 
reimbursed under VA's Foreign Medical Program (38 U.S.C. 1724) or an 
emergency treatment authority (38 U.S.C. 1725 or 1728) care furnished 
by a State Veterans Home, or urgent care furnished under this 
authority. A commenter also questioned what does not constitute 
received health care for purposes of meeting the 24-month eligibility 
requirement. Any care furnished to a veteran that is not furnished 
under a provision in chapter 17 of title 38, United States Code, would 
not satisfy the requirement in section 1725A(b)(2). We are not making 
any changes based on these comments.
    Another commenter was concerned that the proposed rule would 
exclude veterans who receive care under the Foreign Medical Program 
because they might not meet the 24-month requirement. The commenter 
recommended that the rule be amended to specifically state that 
eligible veterans include those in the Foreign Medical Program. As 
previously stated the Foreign Medical Program is covered under the 24-
month eligibility requirement stated in section 1725A. We are not 
making any changes based on these comments.
    Another commenter stated that it would be nice if urgent care also 
applies to disabled veteran expatriates. The commenter added that 
currently even 100 percent disabled veterans not living in the United 
States covered by the Foreign Medical Program are not truly covered. VA 
currently does not have contracts in foreign countries. Section 
1725A(c) requires that VA have contracts in place to provide the urgent 
care benefit. Consequently, without such contracts, VA cannot furnish 
urgent care through the Foreign Medical Program. We are not making any 
changes based on this comment.
    One commenter stated that TRICARE and CHAMPVA require enrollment in 
Medicare Part B when eligible. The commenter questioned why VA did not 
require veterans to enroll in Medicare Part B, when eligible, and added 
that this would help offset the cost of non-VA provided care. Section 
1725A of 38 U.S.C. provides that any enrolled veteran who has received 
care in the last 24-months is eligible for the new urgent care benefit. 
Section 1725A does not require the veteran to have other health 
insurance coverage, and we do not believe we have the authority to 
impose such a requirement under this authority. We are not making any 
changes based on this comment.
    Another commenter stated that all veterans should be given Medicare 
with the Part B supplemental at no cost to allow veterans to use any 
private hospital in our nation. Another commenter similarly stated that 
VA needs to let Medicare take over billing for veterans and not have 
money assigned to Medicare, VA care, and then payments under contracts 
for such things as the Veterans Choice Program and the Veterans 
Community Care Program. VA does not oversee or implement the Medicare 
program, and

[[Page 26015]]

CMS does not have authority to operate programs on VA's behalf. Further 
these comments are beyond the scope of the proposed rule. We are not 
making any changes based on this comment.
    One commenter suggested that travel not be paid for veterans who 
use urgent care. Beneficiary travel is regulated under 38 CFR 70.1 
through 70.50 and the purpose of the program is to make payments for 
travel expenses incurred in the United States to help veterans and 
other persons obtain care or services from VA. Eligible veterans who 
seek urgent care may also qualify for beneficiary travel if they meet 
the requirements of Sec.  70.10. We are not making any changes based on 
this comment.
    Another commenter stated that VA needs to increase the rate it pays 
for beneficiary travel. The commenter also stated that there should be 
more programs for helping veterans updating their houses. The commenter 
also stated that they were not able to obtain an emotional support dog. 
The proposed rule addressed urgent care authorized by 38 U.S.C. 1725A. 
These concerns are beyond the scope of the proposed rule. We are not 
making any changes based on these comments.
    One commenter stated that more information is needed to evaluate 
whether or not the new urgent care benefit will improve health care 
outcomes or inadvertently harm veterans, particularly those who are 
older and disabled. The commenter further stated that older adults with 
multiple morbidities are better served in a continuity system and use 
of disconnected urgent care visits should not be encouraged. Section 
1725A authorizes VA to provide urgent care to eligible veterans. The 
scope of services available under this program, and the range of 
providers who can furnish this care, will necessarily be limited to 
some degree, and patient health will be monitored by VA clinical staff 
to ensure eligible veterans who use this benefit receive continuous, 
necessary care. We are not making any changes based on this comment.
    Another commenter recommended expanding Medicare's definition of 
urgent care entities and including primary care clinics and emergency 
room departments with fast-tracks for urgent care needs. In defining 
qualifying non-VA entities or providers, VA is utilizing the billing 
codes CMS has developed for walk-in retail health clinics and urgent 
care centers. To the suggestion that VA include primary care clinics 
and emergency room departments with fast tracks for urgent care, VA may 
consider these facilities as qualifying non-VA entities or providers as 
long as they utilize CMS billing codes 17 or 20. We are not making any 
changes based on this comment.
    Another commenter stated that any walk-in clinic pilot or analysis 
should include the input of all key stakeholders, including labor 
representatives of frontline employees who are tasked with providing, 
arranging, and coordinating care as well as VSOs. The rulemaking 
process is meant to ensure stakeholders are allowed to provide input 
for the regulations of this new benefit. VA provided a 30-day comment 
period for this rulemaking. All interested stakeholders were able to 
submit a comment. VA notes that it has used caution and has thoroughly 
reviewed the comments we received. VA will provide educational material 
on the changes to health care and services under section 1725A. This 
material will be widely distributed in a variety of formats through an 
aggressive communications plan with VA's internal and external 
stakeholders including VA staff and Veteran Service Organizations. We 
are not making any changes based on this comment.
    Another commenter supported the efforts to expand access for 
veterans to non-VA care facilities for immediate, time-sensitive care 
and requested that VA take this opportunity to begin the long-delayed 
coordination with Urban Indian Health Programs (UIHP) to address these 
needs. The commenter supports the inclusion of section 1725A(c)(1) to 
clearly define when an eligible veteran can access time-sensitive care 
and VA's decision to allow such care to be furnished without prior 
approval from VA. The commenter added that VA has never fully 
implemented the VA-Indian Health Service Memorandum of Understanding 
(MoU) for UIHPs. The commenter stated that VA must expeditiously 
implement this MoU so that UIHPs can be reimbursed for providing 
culturally competent care (including culturally competent urgent care) 
to the American Indian and Alaska Native veterans residing in urban 
areas. The commenter stated that VA should ensure that opportunities 
and new programs that seek to expand access to care for veterans are 
inclusive of UIHPs. The MoU for UIHPs is beyond the scope of the 
proposed rule, which only addresses urgent care authorized under 
section 1725A.
    This commenter was concerned that the proposal to define urgent 
care to encompass walk-in care will hinder the ability of UIHPs to 
provide services under this program--again leaving UIHPs out of the 
equation. The proposal to define urgent care to encompass walk-in care 
will have no effect if UIHPs can provide the services and qualify to be 
part of our contracted network. As previously explained, VA is defining 
urgent care to mean, in general, those services available at facilities 
that submit claims utilizing the Medicare Place of Service (POS) codes 
17 and 20. We welcome UIHPs to apply to be part of the contracted 
network of care to help meet the needs of veterans. We are not making 
any changes to the rule based on this comment.

Comments on the Rulemaking Process

    Several commenters opposed the shortened public comment period, 
stating that it was a devious and underhanded way to restrict the 
ability of the public to review and comment and to limit the number of 
comments received in opposition, as it is obvious this proposal would 
be greatly opposed. One commenter added that the sole and very obvious 
purpose of the shortened comments period was to make it appear that not 
many people actually oppose this new proposal, and thus ensure its 
adoption. As we explained in the proposed rule, we believe that a 30-
day comment period was appropriate because it would allow the Secretary 
to expedite the commencement of this new benefit, thereby increasing 
access to health care for eligible veterans. We also note that we 
received more than 3,000 comments during this 30-day period, and we 
believe these comments came from a wide cross-section of the public. 
Therefore, we consider the 30-day comment period adequate and 
appropriate.
    One commenter stated that the proposed rule was too complicated and 
that the rule should by simplified. VA understands that some veterans 
may need assistance in understanding how to obtain urgent care. As part 
of the implementation process of the rule, VA will establish a website 
that will state the locations of qualifying non-VA entities or 
providers where eligible veterans may receive urgent care in their 
community. Veterans may also call their local VA medical facility for 
additional assistance in obtaining information on urgent care. We are 
not making any changes based on this comment.
    Several commenters made remarks on the proposed rule but did not 
provide additional information on their comment. In particular, 
commenters stated that they looked forward to seeing veterans get the 
care they deserve but provided no additional information. Other 
commenters opposed the rulemaking but did not explain the basis

[[Page 26016]]

for their opposition. Several commenters simply stated that veterans 
should be honored. Other commenters made non-substantive comments that 
VA considers inappropriate due to language and content and will not be 
addressed in this final rule. We are not making any changes based on 
these comments.
    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 with the edits described in this rulemaking.

Effect of Rulemaking

    The Code of Federal Regulations, as revised by this final 
rulemaking, represents 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 final rulemaking if possible or, if 
not possible, such guidance would be superseded by this rulemaking.

Paperwork Reduction Act

    This rulemaking does not contain any provisions constituting 
collections of information under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule does 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 final rule does not have a significant economic impact on 
qualifying non-VA entities or providers. To the extent there is any 
such impact, it would result in increased business and revenue for them 
based on voluntary entry into contracts to provide care. We also do not 
believe there will be a significant economic impact on insurance 
companies, as claims would only be submitted for care that would 
otherwise have been received if the veteran had received this care in a 
primary care visit. Therefore, pursuant to 5 U.S.C. 605(b), this 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866, 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 Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), 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 
the Executive Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and determined that the 
action 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 website at http://www.va.gov/orpm by following the link for VA 
Regulations Published from FY 2004 through FYTD. This final rule is 
considered an E.O. 13771 regulatory action. Details on the estimated 
costs of this final rule can be found in the rule's economic analysis. 
VA has determined that the net costs are $34.3 million over a five-year 
period (FY2019-FY2023) and $6.8 million per year on an ongoing basis 
discounted at 7 percent relative to year 2016, over a perpetual time 
horizon.

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.

Congressional Review Act

    The Secretary of Veterans Affairs finds that there is good cause 
under the provisions of 5 U.S.C. 808(2) to publish this final rule 
without full, prior Congressional review under 5 U.S.C. 801 and to make 
the rule effective on June 6, 2019. Specifically, the Secretary finds 
that it would be contrary to the public interest to delay the date this 
rule could be operative and effective because any delay in implementing 
the rule would have a severe and detrimental impact on eligible 
veterans' health care.
    This rule will grant eligible veterans access to urgent and walk-in 
care from qualifying non-VA entities or providers without prior 
approval from VA. This rulemaking will implement the mandates of 38 
U.S.C. 1725A, as added by section 105 of the VA MISSION Act of 2018, 
and make it easier for eligible veterans to readily and quickly access 
health care in their communities.
    The VA MISSION Act of 2018 provides that VA may not use the 
authority granted by section 101 of the Veterans Access, Choice, and 
Accountability Act of 2014 (Pub. L. 113-146; 38 U.S.C. 1701 note, as 
amended) to furnish care and service after June 6, 2019. And the 
statute defining and authorizing the new Veterans Community Care 
Program (38 U.S.C. 1703) will not go into effect until VA promulgates 
regulations under section 101(c) of the VA MISSION Act of 2018. If VA 
does not have regulations implementing the new Veterans Community Care 
Program in place on June 6, 2019, then, the only authority it would 
have to authorize the vast majority of care in the community would be 
the existing section 1703. Under this statute, VA could not furnish 
care as envisioned by section 101 of the VA MISSION Act of 2018. The 
provisions in the existing section 1703, as well as its implementing 
regulations, do not provide anywhere near a sufficient legal basis to 
meet the requirements of the VA MISSION Act of 2018, or the Veterans 
Choice Program, in areas such as eligibility, appeals, and payment 
rates. Executing a program inconsistent with both existing section 1703 
and its regulations would present significant risks and challenges.
    Although a separate rulemaking with distinct eligibility criteria 
and benefits is published elsewhere in this issue of the Federal 
Register, this rule is integral to the development of VA's 
comprehensive Veterans Community

[[Page 26017]]

Care Program (RIN 2900-AQ46) under 38 U.S.C. 1703, as amended by 
section 101 of the VA MISSION Act of 2018. Taken together, these rules 
develop the system of access to health care in the community called for 
by the VA MISSION Act of 2018. The urgent care benefit will complement 
the new Veterans Community Care Program because the Veterans Community 
Care Program provides access to care generally and the urgent care 
benefit will allow timely access to urgent care to create a 
comprehensive community care program offering access to multiple levels 
of necessary care. In this regard, the Veterans Community Care Program 
requires preauthorization and referral for community care. Under the 
Veterans Community Care Program, VA technically can send eligible 
veterans to urgent care facilities, but the referral and scheduling 
takes time and may not be able to accommodate a same day visit on a 
weekend. However, the urgent care benefit will allow eligible veterans 
to go directly to a qualifying non-VA entity or provider to receive 
same-day treatment for urgent care. Therefore, the urgent care benefit 
is a necessary component for eligible veterans to be able to access 
this level of care in a timely manner as part of a comprehensive 
community care program. The VA MISSION Act of 2018 sets an expectation 
that the urgent care and traditional, routine care authorized through 
the Veterans Community Care Program will work together to provide 
eligible veterans with greater choice and access starting on June 6, 
2019.
    VA also believes that unacceptable risk to eligible veterans' 
health and well-being would be created by delaying implementation of 
the urgent and walk-in benefit. Approximately one third of veterans 
live in rural or highly rural areas, and access to local, walk-in 
options in urgent situations prevents care delays and detrimental 
health outcomes. The urgent and walk-in care benefit is an important 
part of the statutory scheme that Congress enacted to address this 
distance barrier (among other barriers to eligible veterans' care), and 
VA does not wish to impose a burden on veterans by delaying the 
availability of this care option.
    Further, the message that urgent care and traditional, routine care 
coordinated through the Veterans Community Care Program will work 
together to provide eligible veterans with greater choice and access 
beginning on June 6, 2019 has been amplified by stakeholders, including 
Veterans Service Organizations. VA believes that eligible veterans 
understand and are relying upon this synergy. Eligible veterans' belief 
that the two options for care are interconnected is evidenced by the 
numerous comments VA received on this rulemaking that offered 
suggestions and recommendations for separate rulemaking describing the 
general Veterans Community Care Program. Even with a comprehensive 
communications strategy, delaying urgent care implementation would 
create a risk of confusion by eligible veterans. Based on the 
expectation of simultaneous delivery no later than June 6, 2019, set 
forth in the Act and now amplified, eligible veterans may seek urgent 
care prior to implementation and face unexpected financial burden from 
the cost of urgent care visits. For those eligible veterans without 
insurance, this could result in serious financial hardship. Conversely, 
eligible veterans who learn of the delay in implementation could 
postpone care due to the cost and risk potentially serious health 
complications. Also, urgent care will be provided in locations that are 
convenient to the veteran, without having to solely rely on VA medical 
facilities to receive care. Thus, RIN 2900-AQ46 Veterans Community Care 
Program and RIN 2900-AQ47 Urgent Care must be implemented 
simultaneously to improve eligible veterans' health care, achieve 
Congressional objectives, and support comprehensive access to care, and 
it would be contrary to the public interest to delay the effective date 
of the final rule to allow for the Congressional review contemplated by 
the Congressional Review Act.
    Accordingly, the Secretary finds it would be contrary to the public 
interest to delay the effective date of AQ47 and that there is good 
cause to dispense with the opportunity for a 60-day period of prior 
Congressional review and to publish this final rule with an operative 
and effective date of June 6, 2019.

Administrative Procedure Act

    For the reasons set forth in the preceding section, the Secretary 
finds that there is good cause under 5 U.S.C. 553(d)(3) to publish this 
rule with an effective date that is less than 30 days from the date of 
publication.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are as follows: 64.009, Veterans 
Medical Care Benefits; 64.012, Veterans Prescription Service; 64.013, 
Veterans Prosthetic Appliances; and 64.018, Sharing Specialized Medical 
Resources.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Claims, Day care, Dental 
health, Government contracts, Health care, Health facilities, Health 
professions, Health records, Mental health programs, Nursing homes, 
Reporting and recordkeeping requirements, 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on April 10, 2019, for publication.

    Dated: May 29, 2019.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, we are amending 38 CFR 
part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding entries for 
Sec. Sec.  17.105, 17.108, and 17.4600 to read in part as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.105 is also issued under 38 U.S.C. 501, 1721, 1722A, 
1724, and 1725A.
    Section 17.108 is also issued under 38 U.S.C. 501, 1710, 1725A, 
1730A, Sec. 101, Pub. L. 113-146, 128 Stat. 1754.
* * * * *
    Section 17.4600 is also issued under 38 U.S.C. 1725A.


Sec.  17.105  [Amended]

0
2. Amend Sec.  17.105 by:
0
a. In paragraph (c), removing ``or 17.111'' and adding in its place 
``17.111, or 17.4600''.

0
b. Removing the authority citation at the end of the section.

0
3. Amend Sec.  17.108 by:
0
a. Revising paragraph (e) introductory text.
0
b. Removing the authority citation at the end of the section.
    The revision reads as follows:


Sec.  17.108  Copayments for inpatient hospital care and outpatient 
medical care.

* * * * *

[[Page 26018]]

    (e) Services not subject to copayment requirements for inpatient 
hospital care, outpatient medical care, or urgent care. The following 
are not subject to the copayment requirements under this section or, 
except for Sec.  17.108(e)(1), (2), (4), (10), and (14), the copayment 
requirements under Sec.  17.4600.
* * * * *

0
4. Add Sec.  17.4600 to read as follows:


Sec.  17.4600  Urgent care.

    (a) Purpose. The purpose of this section is to establish procedures 
for accessing urgent care. Eligible veterans may obtain urgent care, in 
accordance with the requirements and processes set forth in this 
section, from qualifying non-VA entities or providers in VA's network 
that are identified by VA in accordance with paragraph (c)(2) of this 
section.
    (b) Definitions. The following definitions apply to this section.
    (1) Eligible veteran means a veteran described in 38 U.S.C. 
1725A(b).
    (2) Episodic care means care or services provided in a single visit 
to an eligible veteran for a particular health condition, or a limited 
set of particular health conditions, without an ongoing relationship 
being established between the eligible veteran and qualifying non-VA 
entities or providers.
    (3) Longitudinal management of conditions means outpatient care 
that addresses important disease prevention and treatment goals and is 
dependent upon bidirectional communications that are ongoing over an 
extended period of time. For purposes of this section, the term 
``longitudinal management of conditions'' and ``longitudinal care'' are 
synonymous.
    (4) Qualifying non-VA entity or provider means a non-VA entity or 
provider, including Federally-qualified health centers as defined in 42 
U.S.C. 1396d(l)(2)(B), that has entered into a contract, agreement, or 
other arrangement with the Secretary to furnish urgent care under this 
section, or has entered into an agreement with a third-party 
administrator with whom VA has a contract to furnish such care.
    (5) Urgent care means services provided by a qualifying non-VA 
entity or provider, and as further defined in paragraphs (b)(5)(i) 
through (iv) of this section.
    (i) Urgent care includes service available from entities or 
providers submitting claims for payment as a walk-in retail health 
clinic (Centers for Medicare and Medicaid Services (CMS) Place of 
Service code 17) or urgent care facility (CMS Place of Service code 
20);
    (ii)(A) Except as provided in paragraph (b)(5)(ii)(B) or (b)(5)(iv) 
of this section, urgent care does not include preventive health 
services, as defined in section 1701(9) of title 38, United States 
Code, dental care, or chronic disease management.
    (B) Urgent care includes immunization against influenza (flu 
shots), as well as therapeutic vaccines that are necessary in the 
course of treatment of an otherwise included service and screenings 
related to the treatment of symptoms associated with an immediate 
illness or exposure.
    (iii) Urgent care may only be furnished as episodic care for 
eligible veterans needing immediate non-emergent medical attention, and 
it does not include longitudinal care. Veterans requiring follow-up 
care as a result of an urgent care visit under this section must 
contact VA or their VA-authorized primary care provider to arrange such 
care.
    (iv) If VA determines that the provision of additional services is 
in the interest of eligible veterans, based upon identified health 
needs, VA may offer such additional services under this section as VA 
determines appropriate. Such services may be limited in duration and 
location. VA will inform the public through a Federal Register 
document, published as soon as practicable, and other communications, 
as appropriate.
    (c) Procedures. (1)(i)(A) Eligible veterans may receive urgent care 
under this section without prior approval from VA.
    (B) Eligible veterans must declare at each episode of care if they 
are using this benefit prior to receiving urgent care under this 
section.
    (2) VA will publish a website providing information on urgent care, 
including the names, locations, and contact information for qualifying 
non-VA entities or providers from which urgent care is available under 
this section.
    (3) In general, eligibility under this section does not affect 
eligibility for hospital care or medical services under the medical 
benefits package, as defined in Sec.  17.38, or other benefits 
addressed in this title. Nothing in this section waives the eligibility 
requirements established in other statutes or regulations.
    (4) Urgent care furnished under this section must meet VA's 
standards for quality established under 38 U.S.C. 1703C, as applicable.
    (d) Copayment. (1) Except as provided in paragraphs (d)(2) and (3) 
of this section, an eligible veteran, as a condition for receiving 
urgent care provided by VA under this section, must agree to pay VA 
(and is obligated to pay VA) a copayment of $30:
    (i) After three visits in a calendar year if such eligible veteran 
is enrolled under Sec.  17.36(b)(1) through (6), except those veterans 
described in Sec.  17.36(d)(3)(iii) for all matters not covered by 
priority category 6.
    (ii) If such eligible veteran is enrolled under Sec.  17.36(b)(7) 
or (8), including veterans described in Sec.  17.36(d)(3)(iii).
    (2) An eligible veteran who receives urgent care under paragraph 
(b)(5)(iv) of this section or urgent care consisting solely of an 
immunization against influenza (flu shot) is not subject to a copayment 
under paragraph (d)(1) of this section and such a visit shall not count 
as a visit for purposes of paragraph (d)(1)(i) of this section.
    (3) If an eligible veteran would be required to pay more than one 
copayment under this section, or a copayment under this section and a 
copayment under Sec.  17.108 or Sec.  17.111, on the same day, the 
eligible veteran will only be charged the higher copayment.
    (e) Prescriptions. Notwithstanding any other provision of this 
part, VA will:
    (1) Pay for prescriptions written by qualifying non-VA entities or 
providers for eligible veterans, including over-the-counter drugs and 
medical and surgical supplies, available under the VA national 
formulary system to cover a course of treatment for urgent care no 
longer than 14 days.
    (2) Fill prescriptions for urgent care written by qualifying non-VA 
entities or providers for eligible veterans, including over-the-counter 
drugs and medical and surgical supplies, available under the VA 
national formulary system.
    (3) Pay for prescriptions written by qualifying non-VA entities or 
providers for eligible veterans that have an immediate need for durable 
medical equipment and medical devices that are required for urgent 
conditions (e.g., splints, crutches, manual wheelchairs).
    (f) Payments. Payments made for urgent care constitute payment in 
full and shall extinguish the veteran's liability to the qualifying 
non-VA entity or provider. The qualifying non-VA entity or provider may 
not impose any additional charge on a veteran or his or her health care 
insurer for any urgent care service for which payment is made by VA. 
This section does not abrogate VA's right, under 38 U.S.C. 1729, to 
recover or collect from a third party the reasonable charges of the 
care or services provided under this section.

[FR Doc. 2019-11468 Filed 6-4-19; 8:45 am]
 BILLING CODE 8320-01-P