[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Rules and Regulations]
[Pages 26278-26310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11575]



[[Page 26277]]

Vol. 84

Wednesday,

No. 108

June 5, 2019

Part IV





Department of Veterans Affairs





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38 CFR Part 17





Veterans Community Care Program; Final Rule

  Federal Register / Vol. 84 , No. 108 / Wednesday, June 5, 2019 / 
Rules and Regulations  

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ46


Veterans Community Care Program

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 implements its authority from the VA MISSION ACT of 2018 for 
covered veterans to receive necessary hospital care, medical services, 
and extended care services from non-VA entities or providers in the 
community.

DATES: Effective Date: This rule is effective on June 6, 2019.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Office of Community Care 
(10D), Veterans Health Administration, Department of Veterans Affairs, 
Ptarmigan at Cherry Creek, Denver, CO 80209; [email protected], 
(303) 370-1637. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On June 6, 2018, the President signed into 
law the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA 
Maintaining Internal Systems and Strengthening Integrated Outside 
Networks (MISSION) Act of 2018 (hereafter referred to as the ``MISSION 
Act,'' Pub. L. 115-182, 132 Stat. 1395, as amended). This final rule 
implements section 101 of the MISSION Act, which requires VA to 
implement a Veterans Community Care Program to furnish required care 
and services to covered veterans through eligible entities and 
providers. Section 101, which amends 38 U.S.C. 1703 upon the effective 
date of these final regulations, further establishes the conditions 
under which VA determines if covered veterans are eligible to elect to 
receive such care and services through eligible entities or providers, 
as well as other parameters of the Veterans Community Care Program. 
This final rule implements in a regulatory framework the requirements 
in amended section 1703, consistent with the mandate in section 101(c) 
of the MISSION Act that VA promulgate regulations to carry out the 
Veterans Community Care Program. For the sake of convenience and 
understanding, we will refer to provisions of section 1703 as it will 
be amended on June 6, 2019, the effective date of this final rule. We 
additionally clarify that throughout this final rule, the abbreviation 
U.S.C. or the term section will be used to indicate discussion of or 
reference to a statutory provision in the United States Code (e.g., 
section 1703) or in another statute, while the abbreviation CFR or the 
section symbol Sec.  will be used to indicate discussion of or 
reference to an existing or proposed regulatory provision in the Code 
of Federal Regulations (e.g., Sec.  17.4005 as proposed). There may be 
instances where the term section rather than the section symbol must be 
used at the beginning of a sentence to discuss or reference a 
regulatory provision, but it should be clear in the sentence that a 
regulatory provision is at issue. In general, any reference to a 
section that uses a period in it (e.g., Sec.  17.55) is a reference to 
the CFR, while any reference without such a period (e.g., section 1703) 
is a reference to the U.S.C.
    VA published a proposed rule regarding the criteria for determining 
when covered veterans may elect to receive care and services through 
community health care entities or providers, as well as other 
parameters of the program, on February 22, 1019. 84 FR 5629. In 
response to this proposed rule, VA received 23,557 comments. Over 
18,000 comments were duplicated form responses that expressed strong 
support for the overall rulemaking, with some suggestions for 
substantive revisions to provisions from the proposed rule. We received 
1,297 comments that were unique in that they were not duplicated form 
responses in support of or in opposition to at least one portion of the 
proposed rule, although VA did consider substantive issues raised in 
such duplicated comments. More than 700 comments expressed support for 
the proposed rule, in whole or in part, without substantive comment on 
provisions in the proposed rule. We appreciate the support of such 
comments, and do not address them below. Other comments expressed 
support or disapproval, in whole or in part, with substantive 
provisions in the proposed rule, and we discuss those comments and 
applicable revisions from the proposed rule below. We note that the 
discussion below is organized by the sequential order of the provisions 
as presented in the proposed rule, from Sec. Sec.  17.4000 through 
17.4040. As many of the comments we received were related to the access 
standards as proposed, we alert readers that the discussion on access 
standards can be found under the last section header Sec.  17.4040 in 
this final rule, near the end of the Supplementary Information section 
of this published document.
    We make two technical corrections to the proposed revisions to 
Sec. Sec.  17.46 and 17.55 to clarify the sunset date of these 
regulations as they apply to VA's community care program such that 
these will not apply to care furnished after June 6, 2019.

Sec.  17.4000, Purpose and Scope

    We received over 200 comments that did not relate to specific 
provisions of the proposed rule, but that related to the overall effect 
that implementation of the Veterans Community Care Program (VCCP) would 
have on either: (1) The care and services that VA directly furnishes, 
or (2) the U.S. healthcare industry at large. We discuss these comments 
in the context of Sec.  17.4000(a) as proposed, because Sec.  
17.4000(a) established that Sec. Sec.  17.4000 through 17.4040 would 
generally implement the VCCP as authorized by 38 U.S.C. 1703.
    With regard to the effects on the care and services that VA 
directly furnishes, commenters expressed concern that implementation of 
the VCCP would deplete VA's allotted budgetary resources and thereby 
negatively impact VA's ability to directly furnish care and services to 
veterans (some comments referred to this impact as the ``privatization 
of VA''). Commenters offered multiple reasons why implementation of 
VCCP would negatively affect VA's direct provision of care, all 
stemming from the assumptions that more covered veterans would choose 
VA community care if access to such care were expanded, which would 
then create a decreased need to fund VA's direct provision of care 
(i.e., provision of care in a VA facility). A few comments further 
stated that decreased funding of VA's direct provision of care would be 
unavoidable unless such care was funded separately from the VCCP 
(presumably, separately funded by Congress specifically through the 
Federal appropriation process). Many of these comments further argued 
that, rather than potentially expand the provision of non-VA care in 
the community through implementation of the VCCP, VA should focus on 
improving its own infrastructure, hiring practices, and quality of care 
and services it directly provides. Some of these comments additionally 
provided more specific suggestions for how VA could use resources 
required to implement the VCCP to instead improve VA's direct provision 
of care and services (e.g., VA could hire additional specific types of 
providers or increase pay scales for its providers generally; or VA 
could open additional VA facilities, expand or improve its existing 
facilities, or expand sharing agreements with non-VA facilities).
    We do not disagree with portions of these comments requesting that 
VA look

[[Page 26279]]

to improving its direct delivery of care and services; indeed, a 
portion of the proposed rule that was organized under a header titled 
improving VA (see 84 FR 5629, 5645-5646) discussed how the MISSION Act 
will assist VA in doing so. We do not, however, make any changes to 
Sec.  17.4000 or any other part of the rule as proposed based on these 
comments. Section 1703 requires VA to implement the VCCP and to 
establish the conditions under which VA would determine if covered 
veterans are eligible to elect to receive such care and services 
through eligible entities or providers (see sections 1703(a)(1) and 
(d)). Section 1703(a)(1) establishes a program to furnish hospital 
care, medical services, and extended care services to covered veterans 
through eligible entities and providers; it is VA's responsibility to 
implement the VCCP. Section 1703(d)(3) creates a key condition on the 
operation of the VCCP: that the covered veteran must elect to receive 
care in the community, versus through VA. This election was further 
identified and explained in Sec. Sec.  17.4000(b), 17.4010, and 
17.4020(a) as proposed. VA's obligation to implement the VCCP does not 
diminish VA's obligation to directly provide care and services to 
eligible individuals as otherwise required by title 38 U.S.C, 
particularly for covered veterans who are eligible for but do not elect 
to receive care through the VCCP or veterans who are not eligible to 
receive care through the VCCP. As Congress appropriates funding for VA, 
VA will use those resources to implement the requirements Congress has 
set forth. The regulatory impact analysis for this final rule and VA's 
budget requests identify our anticipated needs, and we will closely 
monitor utilization of our available resources.
    With regard to the effects that implementation of the VCCP would 
have on the U.S. healthcare industry at large, we find such comments 
generally beyond the scope of the rule where they do not relate to VA's 
direct provision of care and services or VA's ability to maintain its 
other core missions. For instance, some comments asserted that covered 
veterans seeking non-VA care could displace non-veteran patients that 
rely on other Federal health care coverage (i.e., Medicare or 
Medicaid), particularly if VA did not consider potential reductions to 
other Federal health care funding in developing the proposed rule. 
Conversely, other comments expressed concern that implementation of the 
VCCP could put covered veterans seeking non-VA care in the position to 
compete with non-veteran patients who have private insurance, because 
non-VA providers simply will not have the capacity to absorb covered 
veterans as additional patients. We do not make changes to the rule 
based on these comments that relate to the potential effects that VCCP 
implementation may have on capacity of non-VA providers to see 
patients, either to a covered veteran's advantage or disadvantage when 
compared with other patient cohorts as asserted by the comments. 
However, we believe that the contracts, agreements, or other 
arrangements VA enters with eligible entities and providers will help 
to ensure provider availability for covered veterans who elect to 
receive care through the VCCP; we have no reason to believe that the 
effect, if any, on non-veteran patients would be significant. We 
similarly do not make changes based on comments that generally argued 
that expansion of eligibility for VA community care could create 
increased consolidation of health care markets in a manner to require 
VA to pay higher rates for non-VA care. We do not believe our actions 
in implementing the VCCP will have that significant of an effect on the 
health care industry. According to the National Health Expenditure Data 
set, the United States spent $3.5 trillion on health care in 2017. By 
comparison, VA obligated $12.9 billion for community care in FY 2017 or 
17.8 percent of total VA Medical Care spending. As for other comments 
that specifically noted that implementation of the VCCP could have 
detrimental effects on the U.S. health care industry at large because 
VA would not be able to maintain its core missions of research and 
health care provider and clinician training, VA's obligation to 
implement the VCCP does not diminish VA's obligation to fulfill any of 
its core missions as otherwise required by title 38 U.S.C.

Sec.  17.4005, Definitions

    We received more than ten comments that either suggested revisions 
to or clarification of some terms defined in the proposed rule, or that 
requested VA define additional terms. We address these comments below 
as they relate to the terms in the order they were presented in Sec.  
17.4005 as proposed.
    One comment requested revision of the definition of the term 
appointment to expressly include telehealth and same-day encounters. 
While we believe the definition of appointment as proposed did include 
telehealth and same-day encounters (by using the separately defined 
term schedule), we agree with the suggestion to revise the definition 
to expressly add these terms. The definition of appointment is 
therefore revised to include telehealth and same-day encounters.
    A few comments requested revisions to the term covered veteran. The 
term covered veteran as proposed is identical to the statutory 
definition in section 1703(b), which is limited to veterans. We 
reiterate from the proposed rule that the regulations at Sec. Sec.  
17.4000-17.4040 do not affect other VA authorities to provide care or 
services for non-veterans. Therefore, VA's limited authority to furnish 
care or services for non-veterans is generally not affected by 
regulations that implement the VCCP. Other comments requested that VA 
add a regulatory citation to 38 CFR 17.37(c) to the definition of 
covered veteran, as this regulatory citation corresponds to the 
statutory citation 38 U.S.C. 1705(c)(2) in the definition that 
authorizes eligibility for certain veterans who do not have to enroll 
prior to receiving VA care. We agree with the commenter that providing 
a relevant regulatory citation for these certain veterans would make 
the definition more consistent, as the definition does include the 
regulatory citation for Sec.  17.36 as it relates to those veterans who 
do have an affirmative requirement to enroll prior to receiving care. 
We therefore revise the definition of covered veteran to reference 38 
CFR 17.37(a)-(c), which implement section 1705(c)(2) related to 
veterans who may receive VA care without first enrolling in VA's system 
of patient enrollment. We do not further revise the definition as 
requested to require enrollment for these certain veterans as a 
condition of receiving non-VA care under the VCCP, because that is not 
a requirement of section 1703 and believe such a revision could 
frustrate efforts to assist veterans transitioning from service in the 
Armed Forces.
    One comment requested revision of the term eligible entity and 
provider to expressly include the standards by which VA will assess 
these entities and providers for adequacy, such as assessment for 
compliance with VA's access standards as proposed, or compliance with 
other Federal laws such as the Americans with Disabilities Act. We do 
not make changes to the definition based on this comment, as the 
definition itself references the relevant section related to entities 
and providers, Sec.  17.4030 as proposed. We will discuss comments 
related to entities and providers in the section of the final rule 
related to Sec.  17.4030.
    In the definition of episode of care, VA's only substantive 
proposed change from the definition used in Sec.  17.1505 regarding the 
Veterans Choice Program

[[Page 26280]]

was to remove the qualifying language that stated the one-year duration 
for the episode began from the date of the first appointment with a 
non-VA health care provider. We received one comment that requested we 
add this qualifying language back to the definition, to ensure it was 
clear that an episode of care included follow-up appointments and 
ancillary and specialty care as needed. We do not make any changes 
based on this comment, as the definition as proposed expressly included 
follow-up appointments and ancillary and specialty services.
    A few comments requested revisions to the term extended care 
services. Some comments stated that defining the term extended care 
services by referencing its applicable authority at 38 U.S.C. 1710B was 
insufficient to indicate what services were covered under the VCCP, 
particularly to ensure coverage of certain extended care services that 
comments asserted were not covered by Medicare (such as adult day 
health care). Other comments more specifically stated that the 
definition should expressly list the types of extended care services 
that would be covered, with some comments further advocating for 
inclusion of particular services such as assisted living, or hourly 
nursing services provided by home health agencies. We do not make 
changes based on these comments. We believe the reference in the 
definition to section 1710B(a) is sufficient to indicate the types of 
extended care services covered because it does provide a specific 
listing of services that encompasses both institutional and non-
institutional extended care services (section 1710B(a)(4), for example, 
references adult day health care directly). Moreover, we see two 
benefits to referencing the statutory authority instead of defining it 
further in this rule. First, such a change would allow for any 
amendments to the law (section 1710B) to have automatic effect on this 
rule, and second, VA's interpretation of that provision of law will 
also automatically carry over to this rule.
    A few comments requested clarification of or revisions to the 
definition of full-service VA medical facility. One comment requested 
clarification of what a full-service VA medical facility was. We 
reiterate from the proposed rule that this term means a VA medical 
facility that provides hospital care, emergency medical services, and 
surgical care and having a surgical complexity designation of at least 
standard. This definition includes a note that states that VA maintains 
a website with a list of the facilities that have been designated with 
at least a surgical complexity of standard, which can be accessed on 
VA's website. One commenter indicated that this note was not adequately 
specific and should provide the exact hyperlink where this information 
can be found. We do not make changes based on this comment, as we do 
not want to create a gap in our regulations should VA's website 
locations change in the future. For the public's awareness, as of the 
publication of this final rule, this information can currently be found 
at www.va.gov/health/surgery. Another commenter stated that the 
definition should be revised to expressly include inpatient and 
outpatient mental health services to ensure that veterans (particularly 
in rural and remote areas) have access to such services. The definition 
of a full-service VA medical facility is only relevant for 
determinations of veteran eligibility under Sec.  17.4010(a)(2) as 
proposed, which, consistent with section 1703(d)(1)(B), means that 
covered veterans are eligible for VCCP if they reside in a State where 
VA does not operate a full-service VA medical facility. Therefore, 
while we understand the comment's concern that not including a specific 
type of care in the definition would seem to affect eligibility for the 
VCCP, we note that veterans requiring inpatient or outpatient mental 
health services may be eligible under one of the other five eligibility 
criteria in Sec.  17.4010(a)(1) and (a)(3) through (6) as proposed, 
should a facility meet the requirements of this definition for full-
service medical facility but not have inpatient or outpatient mental 
health services. We also note that the exclusion of a listed service 
from the definition of full-service medical facility is not intended to 
indicate that such services are not available from these facilities--to 
the contrary, the existence of services that are included in the 
definition, such as surgical services, tends to indicate that such 
facilities are more complex medical facilities that offer many services 
such as mental health, primary care, and many forms of specialty care, 
etc.
    One comment requested that VA add a new definition regarding the 
best medical interest of the covered veteran, to assist in clarifying 
this concept for the purposes of determining eligibility for the VCCP 
under Sec.  17.4010(a)(5) as proposed. We do not make changes to the 
definitions section based on this comment, although we will address the 
comment's concern regarding clarification of the best medical interest 
eligibility criterion in our consideration of comments on Sec.  
17.4010, which discusses eligibility for the VCCP.
    One comment requested clarification of the terms hospital care and 
medical services, specifically seeking clarification of the explanation 
for the terms that was provided in the preamble of the proposed rule. 
The preamble of the proposed rule explained these terms in part by 
referring to the medical benefits package at Sec.  17.38(b), where 
hospital care and medical services will be provided only if determined 
by appropriate healthcare professionals that the care is needed to 
promote, preserve, or restore the health of the individual and is in 
accord with generally accepted standards of medical practice. We 
clarify, as requested by this comment, that appropriate healthcare 
professionals can mean both VA and non-VA providers but are not making 
any revisions to the regulations.
    The definition of the term other health care plan contract as 
proposed included language that stated such contracts did not include a 
policy, contract, agreement, or similar arrangement pursuant to 10 
U.S.C. chapter 55, which is the authority for the Department of Defense 
TRICARE healthcare and insurance program. One comment requested a 
revision to this definition to remove the exclusion related to 10 
U.S.C. chapter 55, to permit VA to bill TRICARE for non service-
connected care provided under the VCCP. This comment asserted that VA 
was not legally barred from treating TRICARE as a health care plan 
contract for purposes of collecting reasonable charges for care or 
services furnished under 38 U.S.C. 1729. We do not make changes based 
on this comment, because we do not agree that section 1729 permits this 
practice. The plain language of the statute does not support the 
conclusion that VA may seek recovery from another Federal entity under 
section 1729. Specifically, TRICARE is another Federal program and, as 
such, does not meet the definition of ``health plan contract'' under 
section 1729(i)(1)(A). Additionally, while the definition of ``third 
party'' in section 1729(i)(3) includes a ``State or political 
subdivision of a State[,]'' it does not include ``a Federal entity.'' 
Moreover, case law does not support the conclusion that VA may seek 
recovery from another Federal entity under section 1729. In United 
States v. Capital Blue Cross, the United States Court of Appeals for 
the Third Circuit found that by excluding other Federal programs, such 
as Medicare, from the reach of section 1729, Congress avoided the 
``inefficient procedure of having one

[[Page 26281]]

arm of the federal government reimburse the another.'' 992 F.2d 1270, 
1275 (3d Cir. 1993). Finally, the legislative history of 38 U.S.C. 1729 
does not support the conclusion that VA may seek recovery from another 
Federal entity under section 1729. See, e.g., H. Rep. 99-300, (finding 
that no reimbursement could be obtained from Medicare or Medicaid by 
VA). We note that this discussion of what is permissible under section 
1729 does not prevent VA from billing DoD under agreements that control 
the exchange of services under 38 U.S.C. 8111.
    One comment requested a revision to the term residence to add 
language that would clarify a residence as the place the covered 
veteran stays on the date of the appointment. We do not make changes 
based on this comment, as we believe the definition as proposed, which 
defines a residence as where the covered veteran is staying at the time 
they want to receive care or services, provides for the same outcome 
without requiring constant monitoring by VA or updates by covered 
veterans. A few comments communicated that individuals who maintain 
more than one residence (the most common example provided was 
maintaining a different residence in a warmer climate during winter 
months, to accommodate health issues) can experience difficulties with 
receiving non-VA care. These comments did not suggest changes to any of 
the criteria or provisions in the proposed rule, so we are not making 
any changes as a result. We believe it is sufficient to state that the 
term residence in Sec.  17.4005 as proposed does not preclude covered 
veterans from maintaining more than one residence at a time, but a 
covered veteran may have one residence at a time. Such residence is 
assessed in accordance with where the individual is physically staying 
at the time the care or services are needed.
    A few comments requested that VA add a definition of unusual or 
excessive burden, to clarify how this term is used in the assessment of 
whether the best medical interest eligibility criterion is met under 
Sec.  17.4010(a)(5)(vii) as proposed. We do not make changes based on 
these comments. This term has qualifying language in Sec.  
17.4010(a)(5)(vii)(A)-(E) that we believe is sufficient to inform these 
determinations, and we will address this qualifying language as raised 
by comments more specifically in the section of this rule that 
discusses eligibility.
    One comment requested that VA add a definition for the term VA care 
coordination team to provide examples of VA staff or clinicians who 
comprise such a team. This comment requested this definition be added 
because it was used in the preamble of the proposed rule to provide an 
example of assessing when a covered veteran might be eligible for VCCP 
under Sec.  17.4010(a)(1) as proposed, or eligibility when no VA 
facility offers the care or services needed. We do not make changes 
based on this comment. This term was used in the preamble of the 
proposed rule to help provide background on the types of individuals 
who might assist a covered veteran with understanding whether VA 
facilities at large might not offer certain services (such as full 
obstetrics care), but this term is not material to determinations of 
eligibility under Sec.  17.4010(a)(1) and is not used in the regulatory 
text, so its addition would be superfluous.
    One comment stated that the term VA facility as defined in the 
proposed rule was too broad to be useful for veterans to distinguish 
between VA facilities, and suggested that VA should instead use: The 
term center for non-medical facilities; the term hospital for full-
service facilities; and the term clinic for all medical service 
facilities that are not full-service. We reiterate from the proposed 
rule that the term VA facility references the types of care a facility 
provides (i.e., hospital care, medical services, or extended care 
services), rather than designations of VA facilities (such as a VA 
medical center, or community-based outpatient clinic), to ensure that 
any future re-designations of VA facility types would not result in a 
gap in our regulations. If the public is interested in how VA currently 
defines the scope of services available at different facility types, 
Veterans Health Administration (VHA) Handbook 1006.02, VHA Site 
Classifications and Definitions, should be instructive and is available 
online. Additionally, we clarify that this term is relevant for 
determinations of eligibility under Sec.  17.4010, and that such 
determinations can only be consistently made with a broad definition 
that references the types of care a facility provides rather than the 
designation of a facility.
    Lastly, one comment requested that the term VA medical service line 
be revised to mean a clinic within a Department medical center, to 
ensure that entire clinics could be designated as underperforming as 
needed. While the commenter's suggestion would match the definition in 
section 1703(o)(2), it would not clarify the meaning of that phrase for 
purposes of this regulation, as we believe the proposed definition 
does. The term clinic, in the context of health care, can have several 
different meanings. Merriam-Webster, for example, defines a clinic in 
the context of health care as a facility (as of a hospital) for 
diagnosis and treatment of outpatients, as well as a group practice in 
which several physicians work cooperatively. Merriam-Webster online, 
https://www.merriam-webster.com/dictionary/clinic. The Cambridge 
English Dictionary, alternatively, defines a clinic as a building or 
part of a hospital where people go for medical care or advice. 
Cambridge Dictionary online, https://dictionary.cambridge.org/us/dictionary/english/clinic. We believe these definitions reflect the 
common understandings of the term clinic, as well as the ambiguity in 
that term. In some contexts, a clinic is a physical structure, and in 
others it is an organizational component of a larger institution. We 
believe in the context of section 1703(o)(2) that the latter 
interpretation is more reasonable, as it would be illogical for 
Congress to define the term VA medical service line to mean a physical 
structure within a larger physical structure. The very term service 
line also reinforces conceptually that this authority is limited to a 
group practice in which several physicians or clinicians work 
cooperatively. VA policy also repeatedly uses the term service line to 
refer to specific practice areas, such as cardiology, radiology, 
oncology, and others. Each service line has different applicable access 
standards or standards for quality for the purposes of assessing 
underperformance under Sec.  17.4015 as proposed, which could serve as 
a basis for eligibility for a covered veteran to participate in VCCP 
under Sec.  17.4010(a)(6) as proposed. In this context, the definition 
of VA medical service line as proposed, to be limited to a service or 
set of services within a Department medical center, is more consistent 
with the general meaning of the term, provides clarity as to the 
intended effect of this provision, and more appropriately captures 
those types of services that are actually underperforming and not other 
services that could in fact be excelling. We note that it is 
theoretically possible, however, for all VA medical service lines 
within a clinic to be designated (depending on the organization of that 
clinic, and the assessment of such medical service lines against VA's 
standards, etc.), although we believe it would be unlikely that this 
would actually happen.

Sec.  17.4010, Veteran Eligibility

    We received over 18,000 comments concerning the criteria under 
which VA determines a covered veteran may elect

[[Page 26282]]

to receive care and services under the VCCP. We address these comments 
below in the order in which they raise issues related to provisions in 
paragraphs (a)(1) through (6) of Sec.  17.4010 as proposed. We note at 
the outset that the comments we received related to eligibility based 
on designated access standards in Sec.  17.4010(a)(4) as proposed we be 
addressed in the section of this document that discusses Sec.  17.4040 
where such comments raised particular substantive issues related to the 
access standards. We will only discuss access standards in relation to 
Sec.  17.4010 below where comments raised broad versus specific 
concerns regarding VA's establishment of such standards. We also note 
that a majority of these comments are the result of a duplicated form 
letter, within which at least one of the eligibility criteria from 
Sec.  17.4010 as proposed was discussed.
    We did not receive any comments that suggested changes to Sec.  
17.4010(a)(1) as proposed, regarding a covered veteran being eligible 
to receive care and services under the VCCP if no VA facility offered 
such care or services. However, some comments seemed to assert that 
this criterion could be unduly limiting if it was interpreted in a 
manner that barred eligibility if a single VA facility offered such 
care or services. One comment further requested clarification as to 
whether the access-related eligibility criterion in Sec.  17.4010(a)(4) 
as proposed would apply if the criterion in Sec.  17.4010(a)(1) was not 
met. We clarify, by reiterating from the proposed rule, that the 
criterion in Sec.  17.4010(a)(1) will not be used to limit access to 
community care in instances where a single VA facility offers the care 
or services required; in such a case, covered veterans will be assessed 
under one of the other five eligibility criteria in Sec.  17.4010(a)(2) 
through (6), for instance, the access-related criterion in Sec.  
17.4010(a)(4). The criterion in Sec.  17.4010(a)(1) will function as a 
unique qualifier for covered veterans that need certain types of care 
that VA simply does not provide in any of its facilities (such as full 
obstetrics care), and any covered veteran requiring such care or 
services would not have to be assessed any further under other proposed 
eligibility criteria for community care. We do not make any changes 
based on these comments.
    We received some comments related to Sec.  17.4010(a)(2), regarding 
a covered veteran being eligible to receive care and services under the 
VCCP if there is not a full-service VA medical facility in the State in 
which the veteran resides. One comment seemed to oppose this criterion, 
asserting that this eligibility criterion was inappropriate because it 
did not consider full-service facilities across state lines that may be 
accessible to veterans. Another comment seemed to support this 
criterion, but also asserted that it was not appropriate because it did 
not consider that in-state transit times vary by State. We clarify that 
the criterion in Sec.  17.4010(a)(2) is an assessment of VA facility 
locations within States, and does not consider transit times to 
facilities, in accordance with section 1703(d)(1)(B). This criterion is 
consistent with the statute, as well as prior VA practice in the 
Veterans Choice Program. We do not make changes based on these 
comments.
    A few comments asserted that VA should not eliminate the 40-mile 
distance eligibility criterion from the former Veterans Choice Program. 
We interpret these comments to be expressing concern with the limited 
grandfathering provision in Sec.  17.4010(a)(3)(ii) as proposed, where 
the 40-mile criterion will be carried forward indefinitely for some, 
but not all, covered veterans. We reiterate from the proposed rule that 
the 40-mile grandfathering provision is consistent with 38 U.S.C. 
1703(d)(1)(C), where such eligibility is carried forward indefinitely 
for only those covered veterans that reside in Alaska, Montana, North 
Dakota, South Dakota, or Wyoming and meet additional criteria. Any 
covered veterans who do not reside in one of these States can only be 
considered to have grandfathered eligibility related to the 40-mile 
criterion until June 6, 2020. We therefore do not make any changes 
based on these comments, although we note that other VCCP eligibility 
criteria may apply for covered veterans after June 6, 2020, even if 
they do not reside in the States identified for the indefinite 
grandfathering provision.
    Some comments objected to VA establishing any eligibility based on 
access standards under Sec.  17.4010(a)(4) as proposed, suggesting 
instead that VA community care should not have any qualifying 
limitations related to VA's assessment of access. We do not make any 
changes to Sec.  17.4010(a)(4) based on these comments. Congress 
authorized veterans to elect to receive community care if VA was unable 
to furnish care or services in a manner that complies with VA's 
designated access standards under section 1703(d)(1)(D). Congress 
further authorized the Secretary to establish access standards under 
section 1703B. As explained in the proposed rule, as well as our report 
to Congress, the Secretary is exercising his authority to establish and 
designate access standards for purposes of eligibility. We reiterate 
that we will discuss comments related to the substantive criteria of 
the access standards themselves from in the section related to Sec.  
17.4040 later in this document.
    We received many comments related to the best medical interest 
criterion in Sec.  17.4010(a)(5) as proposed. While some comments 
merely sought clarification of this criterion, others asserted that the 
covered veteran and his or her non-VA provider did not have enough 
control in determining when the criterion could be met, and that a 
determination by a non-VA provider that the criterion was met should 
not be subject to VA's review or approval (specifically, over 18,000 
comments received were duplicate form requests that VA should not 
administratively or clinically review such determinations from non-VA 
providers). Conversely, other comments asserted that VA must retain 
review and approval for best medical interest determinations, or even 
prevent such determinations from being made by non-VA providers. Other 
comments more specifically suggested that certain conditions should be 
found to create eligibility under this criterion. For instance, some 
comments argued generally that a covered veteran's dissatisfaction with 
care they received directly from VA in the past should meet the 
criterion of best medical interest. Other comments suggested that 
certain conditions or factors should be considered to constitute an 
unusual or excessive burden as assessed under the best medical interest 
criterion in Sec.  17.4010(a)(5)(vii), such as a veteran requiring 
oxygen to travel, or a veteran having experienced military sexual 
trauma.
    We first address the issue within the comments concerning the level 
of review or approval that may be required to find that a determination 
of best medical interest has been met for purposes of eligibility for 
VCCP. These comments offered opposing interpretations of whether VA 
review or approval would (or should) be required to find that a 
determination of best medical interest had been met. We believe these 
opposing interpretations in the comments are due to an inconsistency 
between the preamble explanation for Sec.  17.4010(a)(5) as published 
in the proposed rule and the regulation text at Sec.  17.4010(a)(5) as 
proposed. The preamble of the proposed rule contained language that 
qualified a determination of best medical interest in Sec.  
17.4010(a)(5), by stating that such a determination must be for the 
purpose of the veteran achieving improved clinical outcomes by 
receiving the care or services in the community versus

[[Page 26283]]

from a VA health care provider. In turn, the preamble of the proposed 
rule further explained that the factors in Sec.  17.4010(a)(5)(i)-(vii) 
as proposed would be considered in the context of clinical decision 
making (where the referring clinician could be either a VA or a non-VA 
clinician) to assess whether improved clinical outcomes would likely be 
achieved by receiving care in the community.
    Although the preamble explained that the qualifying language 
related to a veteran's improved clinical outcomes would be in Sec.  
17.4010(a)(5) as proposed, it was inadvertently omitted by VA in the 
regulation text for Sec.  17.4010(a)(5). We clarify that VA intended 
for this qualifying language to be in Sec.  17.4010(a)(5) as proposed 
to allow VA to retain the ability to conduct a review of a best medical 
interest determination made by a non-VA or a VA provider if such 
determination did not appear to meet the standard for achieving 
improved clinical outcomes. To clarify this intent, we revise Sec.  
17.4010(a)(5) to add the qualifying language as stated from the 
preamble of the proposed rule that best medical interest determinations 
are made for the purpose of the veteran achieving improved clinical 
outcomes. We believe this revision effectuates VA's intent as evidenced 
in the preamble of the proposed rule. While we realize that this 
revision does not establish an absolute VA review of best medical 
interest determinations, and does not remove VA's review of these 
decisions as suggested in some comments, we reiterate from the preamble 
of the proposed rule that an assessment of best medical interest under 
Sec.  17.4010(a)(5) is a clinical decision, and as such is made on a 
case by case basis depending on the individual circumstances of a 
covered veteran, to be guided by the factors further established in 
Sec.  17.4010(a)(5)(i)-(vii). We believe that it is neither veteran-
centric nor administratively feasible for VA to regulate an absolute 
requirement to review all determinations of best medical interest from 
non-VA or VA providers. We do not make changes to add certain specific 
qualifying conditions to Sec.  17.4010(a)(5) in response to comments 
that requested VA consider specific conditions as meeting the best 
medical interest criterion (as raised earlier, conditions such as a 
veteran requiring oxygen to travel, or a veteran having experienced 
military sexual trauma). We believe that the language in Sec.  
17.4010(a)(5)(i)-(vii) is comprehensive to permit appropriate clinical 
decisions on a case by case basis without being overly specific or 
restrictive.
    We received a few comments that requested clarification of how VA 
would distinguish between a best medical interest determination that 
may simply be for the convenience of the veteran (which was not 
permitted under Sec.  17.4010(a)(5) as proposed), and a determination 
of best medical interest based on an unusual or excessive travel burden 
(which was permitted under Sec.  17.4010(a)(5)(vii)). One comment 
further requested clarification of whether the undue or excessive 
burden determination was clinical in nature, and whether it could 
relate to the drive time access standard. To address the request to 
clarify when the undue or excessive burden factors in Sec.  
17.4010(a)(5)(vii)(A)-(E) might be met, we will not make changes from 
the proposed rule, but we clarify that VA will work to develop guidance 
for VA staff (that can be made available to VA and non-VA providers) 
regarding how VA will interpret the factors to ensure there is a 
consistent understanding of how the undue or excessive burden 
considerations are assessed and applied. As a general example, a 
covered veteran who requires physical therapy multiple times a week in 
relation to a neck injury might be considered eligible under the 
criterion in Sec.  17.4010(a)(5)(vii)(C), if the veteran's injured neck 
is a medical condition that affects his or her ability to travel even 
short distances. In such a case, it would not be for the mere 
convenience of this veteran to be seen in the community at a location 
that would be closer to their residence.
    We further clarify, without making changes to Sec.  
17.4010(a)(5)(vii), that the unusual or excessive burden assessment 
would ultimately be a clinical determination, as we previously 
clarified that the overarching best medical interest criterion is met 
when it is clinically determined that a covered veteran could be 
expected to experience improved clinical outcomes. Lastly, we clarify 
without changes that the unusual and excessive burden factors in Sec.  
17.4010(a)(5)(vii)(A)-(E) are independent of the access standard 
eligibility in Sec.  17.4010(a)(4) and the standards themselves in 
Sec.  17.4040; the undue and excessive burden factors might qualify a 
veteran for VCCP, even if the access standard related to average drive 
time might not be met. For example, a covered veteran could require 
daily dialysis care that could be furnished at a VA facility that is 29 
minutes away from the veteran's residence by average drive time. If VA 
could furnish the care within the wait-time standard in Sec.  17.4040, 
this veteran would not qualify under Sec.  17.4010(a)(4). However, 
given the need for daily travel and the effect of travel for nearly an 
hour in transit every day, the veteran and the provider could determine 
it is in the best medical interest of the veteran to receive this daily 
dialysis care through the VCCP at a non-VA facility that is only a 
five-minute average drive from the veteran's home.
    We received one comment related to Sec.  17.4010(a)(6) as proposed, 
regarding a covered veteran being eligible to receive care and services 
under the VCCP if VA determined that a VA medical service line that 
would furnish the care or services the veteran requires is not 
providing such care or services in a manner that complies with VA's 
standards for quality. This comment asserted that VA should revise this 
eligibility criterion to be discretionary and not mandatory, to be 
consistent with 38 U.S.C. 1703(e), which is the statutory provision 
related to discretionary eligibility based on a finding that a VA 
medical service line is not providing care that complies with the 
standards for quality VA further establishes under section 1703C. We 
agree section 1703(e) authorizes and does not mandate the furnishing of 
care when VA medical service lines are underperforming, but we do not 
read our regulations in Sec. Sec.  17.4010(a)(6) and 17.4015 as 
proposed to collectively to eliminate that discretion. Section 17.4015 
permits, but does not require, the Secretary to identify 
underperforming VA medical service lines. It further permits the 
Secretary to establish limitations or conditions on the ability of 
veterans to elect to receive care and services in the community. If the 
Secretary makes a determination under Sec.  17.4015 and identifies 
underperforming VA medical service lines and the conditions under which 
covered veterans seeking care or services from such a medical service 
line can elect to receive care in the community, then Sec.  
17.4010(a)(6) would apply and covered veterans could elect to receive 
care or services in the community consistent with the Secretary's 
determination. Sections 17.4010(a)(6) and 17.4015 therefore effectively 
preserve the discretionary nature of section 1703(e). We will address 
comments related to the establishment of or notice procedures for VA's 
standards for quality in the portion of the final rule that discusses 
Sec.  17.4015.
    We received one comment that requested clarification of VA's 
rationale to require a covered veteran to submit to VA information 
related to a change in the veteran's address in Sec.  17.4010(b) as

[[Page 26284]]

proposed, and information on any other health-care plan contract under 
which the veteran is covered prior to obtaining authorization for care 
and services the veteran requires. We reiterate from the proposed rule 
that this information is required so that VA may make accurate 
eligibility determinations under Sec.  17.4010(a)(2)-(6) that rely on a 
veteran's place of residence, and so that VA can continue to recover or 
collect reasonable charges for care and services furnished in the 
community for a non-service connected disability from a health plan 
contract, consistent with section 1703(j). We further note that 
veterans are required to submit information regarding other health 
insurance under section 1705A. Related to this comment concerning the 
provision of information by the covered veteran, one comment asserted 
that VA should make VCCP use conditional on the covered veteran's 
acceptance of an automatic release of their medical information to non-
VA providers. The commenter asserted that this was necessary because it 
was inefficient to require veterans to authorize individual releases of 
their medical information, or to rely on non-VA providers to attest 
that records were received. We do not make changes based on this 
comment. VA currently has the authority to release veteran medical 
information for treatment purposes without the written consent or 
authorization of the veteran under applicable statutes and their 
implementing regulations (see 38 U.S.C. 7332(b)(2)(H)). Therefore, 
there is no need to require veterans to authorize individual releases 
of their medical information if a veteran is receiving treatment using 
VCCP.
    Section 17.4010(d) as proposed established that eligibility 
determinations for covered veterans to receive hospital care, medical 
services, or extended care services through the VCCP would be subject 
to VA's clinical appeals process, and not be appealable to the Board of 
Veterans Appeals. We received some comments that suggested these 
eligibility decisions should be appealable to the Board. We make no 
changes based on these comments, as section 1703(f) expressly provides 
that these eligibility decisions be subject to VA's clinical appeals 
process and not be appealable to the Board of Veterans' Appeals. Other 
comments did not request revisions to Sec.  17.4010(d) per se, but did 
suggest that VA's appeals process should be comprehensive, and more 
specifically that VA should develop a unique process within its 
clinical appeals process, to ensure that individuals adjudicating the 
VCCP eligibility determinations are not the same VA facility or VISN 
staff that made the initial eligibility determinations. We clarify that 
VA's current clinical appeals process can be found in VHA Directive 
1041, Appeal of VHA Clinical Decisions, which can be found on VA's 
website and provides for a comprehensive process of appealing clinical 
decisions that includes elevating disputes beyond initial staff-level 
determinations.
    Lastly, one comment raised several concerns about different 
provisions discussed in the proposed rule that potentially related to 
eligibility, based on several assertions: First, the comment asserted 
that VA's proposed rule would limit eligibility for VA community care 
to only certain service-connected veterans, or veterans with only 
certain discharges from active service; second, the comment asserted 
that the rule would limit eligibility for care for a recently 
discharged veteran to 12 months; and third, the comment asserted that 
veterans should be treated for service connected disabilities 
regardless of their character of discharge. All of the provisions cited 
in this comment refer to other provisions of law unaffected by VA's 
rule, namely Sec.  17.46 (concerning the first issue identified above), 
which we are making no longer effective; section 1705(c)(2), which 
authorizes VA to furnish care notwithstanding a veteran's failure to 
enroll (concerning the second issue identified above); and section 
5303(a), which statutorily limits VA's ability to furnish benefits to 
certain persons. Because these authorities are either being made 
ineffective through this rule (in the case of Sec.  17.46) or are 
statutes that were unaffected by this rule (in the case of section 
1705(c)(2) and section 5303(a)), we do not make changes based on this 
comment.

Sec.  17.4015, Designated VA Medical Service Lines

    We received over 25 comments concerning the process by which VA 
would designate those VA medical service lines that were not able to 
furnish care or services in a manner that complied with VA's standards 
for quality, so that covered veterans who would receive care or 
services through such VA medical service lines would be eligible for 
the VCCP. We address these comments below in the order in which they 
raise issues related to the provisions in paragraphs (a)-(e) of Sec.  
17.4015 as proposed.
    As a general matter, one comment suggested that any proposal to 
eliminate entire service lines at VA facilities should not be 
implemented. We clarify that no provision in the proposed rule sought 
to eliminate VA medical service lines at VA facilities. Section 17.4015 
as proposed sought to establish criteria by which VA would assess VA 
medical service lines within its facilities to determine if they were 
underperforming. If such medical service lines were so identified, then 
Sec.  17.4010(a)(6) as proposed would allow covered veterans to elect 
to receive the care or services they would have received under those 
underperforming VA medical service lines through the VCCP. We do not 
make any changes to the proposed rule based on this comment. We note 
that section 1706A, as added by section 109 of the MISSION Act, 
expressly requires remediation of any VA medical service lines 
identified under this criterion, and as we discussed near the 
conclusion of the preamble to the proposed rule, VA's remediation 
efforts will not be limited to just those medical service lines 
designated under Sec.  17.4015. These remediation efforts are intended 
to bolster and support VA's medical service lines.
    We received multiple comments related to Sec.  17.4015(a) as 
proposed, concerning VA's basic parameters for identifying its 
underperforming medical service lines. First and most generally, one 
comment requested that VA revise paragraph (a) to make this provision 
mandatory by using the word ``shall'' instead of ``may''; in the 
alternative, the commenter suggested that VA must otherwise clarify if 
it interprets the quality monitoring mandates imposed by section 
1703(e) and 1703C to be optional. We do not make changes based on this 
comment and clarify that not all provisions in the MISSION Act require 
VA to take action. VA used the term ``may'' in Sec.  17.4015(a) as 
proposed because VA is not required, and may be practically unable, to 
identify any VA medical service line as underperforming, and 
consequently, it may be the case that no covered veterans qualify for 
community care under this criterion. We also, as noted above, allow the 
Secretary to place conditions or limitations on the ability of covered 
veterans to elect to receive care under this criterion.
    One comment requested that VA revise Sec.  17.4015(a) to provide 
for a comparison of timeliness between VA and non-VA medical service 
lines, as this comparison of timeliness is not expressly prevented by 
section 1703 or 1703C. We do not make changes based on this comment, as 
the comparison of timeliness between only VA medical services lines is 
consistent with section 1703(e)(1)(B)(i). We further note,

[[Page 26285]]

however, that Sec.  17.4015(a) identifies timely care as the first 
domain of care, and hence the timeliness of care with non-VA service 
lines would be considered indirectly.
    We received multiple comments related to VA's standards for quality 
themselves, a majority of which we interpret as beyond the scope of the 
proposed rule because such standards are to be established and 
announced via a separate process in the Federal Register, as stated in 
the proposed rule. However, we summarize those comments here as they 
could be interpreted to apply to Sec.  17.4015(a) as proposed, and that 
paragraph's express statements of using VA's standards for quality to 
determine when VA medical service line are underperforming. Multiple 
comments argued that VA should not use VA's standards for quality, but 
rather should use existing industry standards related to quality 
monitoring (such as the National Committee for Quality Assurance's 
Healthcare Effectiveness Data and Information Set, or Centers for 
Medicare and Medicaid Services Merit-Based Incentive Payment System), 
versus developing VA-based quality measures as indicated in Sec.  
17.4015(a) as proposed. One comment more specifically requested that VA 
revise Sec.  17.4015(a) accordingly to reflect that VA will use 
industry standards for quality. Conversely, other comments suggested 
that there seemed to be a deficiency of reliable data available to VA 
that is related to quality measures or metrics concerning non-VA 
providers; one comment further stated that until non-VA providers are 
able to produce comparative data to be used in assessing VA medical 
service lines, VA should only use its data to identify and remediate 
its medical service lines. Other comments more specifically recommended 
that VA use its existing tools such as VA's Strategic Analytics for 
Improvement and Learning tool to identify its underperforming service 
lines. Some of these comments further stated that VA should consider 
unique veteran populations when developing standards, with one comment 
requesting that VA require vascular surgery quality outcomes to be 
assessed to ensure non-VA outcomes match VA outcomes. Other comments 
did not suggest a particular approach regarding the use of VA or non-VA 
quality measures, but rather requested clarification of what quality 
measures or metrics VA would use. We do not make changes to Sec.  
17.4015(a) based on these comments, but we reiterate from the proposed 
rule that VA's standards for quality will be announced through a 
separate document published in the Federal Register as set forth in 
Sec.  17.4015(c) as proposed. We do note that VA's proposed standards 
for quality, as submitted to Congress in a report earlier this year, 
focused on the framework for quality identified by the National Academy 
of Medicine.
    We did not receive any comments on Sec.  17.4015(b) as proposed and 
are not making any changes from the language we proposed.
    We received a few comments related to VA providing notice of its 
standards for quality once established, as well as comments on other 
provisions set forth in Sec.  17.4015(c) as proposed. At the outset, we 
note that multiple comments urged VA to publicly release VA's report 
detailing its standards for quality that was submitted to Congress on 
March 4, 2019. We do not make changes to Sec.  17.4015(c) based on this 
comment, as we believe Sec.  17.4015(c) makes adequate provision for 
public notice of the standards of quality.
    Section 17.4015(c) as proposed contained language to establish 
potential limitations of when and where covered veterans could receive 
qualifying non-VA care and services at their election based on VA's 
identification of its underperforming medical service lines. These 
possible limitations on receiving qualifying non-VA care included a 
limitation by defined geographic area. We received one comment that 
stated this language implied that VA will interpret its standards for 
quality based on a regional geographic standard versus a national 
standard and asked that VA clarify whether this is the case. We clarify 
that while VA will have national standards for quality, VA's quality 
comparisons will generally be based on care that is locally available 
and not on national averages. It would be of little use to patients in 
a particular area or region to have VA care that is locally available 
to them compared to care that is not locally available. The language in 
Sec.  17.4015(c) related to limitations (including the limitation based 
on geographic area) therefore serves to alert covered veterans that the 
qualifying non-VA care they may elect to receive may be limited in its 
location, in the type of care that may be received, etc., as it would 
be offered as an option to the specific care that would be designated 
in the specific VA medical service line that VA would have identified 
as underperforming. We do not make changes based on this comment.
    A few comments requested clarification of whether direct notice to 
covered veterans of underperforming VA medical service lines, as set 
forth in Sec.  17.4015(c) as proposed, would include other than 
electronic communication (to include notification by mail, phone, etc., 
as well as a Federal Register document). A related comment requested 
that VA ensure non-VA providers are provided the direct notice VA would 
conduct when making determinations under Sec.  17.4015(c) on VA medical 
service lines. We do not make changes based on these comments. We 
reiterate from the proposed rule that VA will take reasonable steps to 
provide direct notice to covered veterans affected under this section 
to include written correspondence, electronic messages, or direct 
contact (in person or by phone). We do not believe it necessary to 
regulate VA's notice to community providers.
    A few comments requested that VA revise Sec.  17.4015(d) as 
proposed to permit VA to identify more than three underperforming VA 
medical service lines and more than 36 underperforming VA medical 
service lines nationally. One comment stated that there should be no 
limit on the number of designated VA medical service lines per facility 
or the total number nationally that could be designated as 
underperforming, and one comment urged VA to seek a legislative fix to 
allow VA to designate more than 36 VA medical service lines nationally. 
We do not make changes based on these comments, as VA is limited by 
statute to designating no more than three service lines per facility 
and 36 service lines nationally, in accordance with section 
1703(e)(1)(C). As the comment indicates, any resolution to allow more 
than the permitted number of VA medical service lines to be designated 
would require Congressional action and therefore is beyond the scope of 
the proposed rule.
    Multiple comments raised issues related to the factors VA would 
consider when determining whether its medical services lines would be 
identified as underperforming, as set forth in Sec.  17.4015(e) as 
proposed. One comment noted that VA should limit comparison of 
underperforming VA medical service lines against only similarly 
underperforming non-VA medical service lines (and further, only those 
non-VA underperforming medical service lines that are accessible to 
covered veterans), to ensure that a covered veteran would not have the 
option to choose to receive lower quality care from a non-VA medical 
service line than a VA medical service line. Another comment asserted 
that VA must consider whether non-VA medical

[[Page 26286]]

service lines would be able to provide the same type of care or better 
care before designating a VA medical service line as underperforming. 
We interpret these comments to be related to Sec.  17.4015(e)(1) as 
proposed, as the general paragraph that would establish whether 
differences in performance between VA and non-VA medical service lines 
were clinically significant. We do not make any changes to Sec.  
17.4015(e)(1) based on these comments. The language in Sec.  
17.4015(e)(1) provides that VA will compare performance of its medical 
service lines against the performance of non-VA medical service lines 
to identify VA deficiencies. By the time VA is determining whether the 
differences in performance are clinically significant, it will have 
already assessed the quality of VA's medical service and non-VA medical 
service lines and identified that there is in fact a difference. We 
also reiterate from the proposed rule that the language related to 
clinical significance in Sec.  17.4015(e)(1) would allow VA to 
appropriately discern differences in performance between VA and non-VA 
medical service lines to determine if VA medical service lines were 
underperforming. Determinations regarding performance will be made 
locally and should generally result in veterans being able to access 
better quality care in the community than they would receive from 
service lines designated as underperforming.
    We received a few comments related to the factor in Sec.  
17.4015(e)(2) as proposed, that VA would consider the likelihood and 
ease of remediation of the medical service line within a short 
timeframe when determining whether it was underperforming. We reiterate 
from the proposed rule that the intent of this factor is to allow VA to 
designate as underperforming those medical service lines in need of the 
kind of intensive remediation envisioned by section 1706A, and not 
necessarily those medical services lines where a simple action (such as 
the purchase of new equipment) is likely to occur and would be 
sufficient to remediate underperformance. One comment requested that VA 
revise this factor in Sec.  17.4015(e)(2) to permit a temporary 
designation of a VA medical service lines that may only require simple 
actions likely to occur in a short timeframe, to prevent scenarios in 
which veterans would receive what the comment asserted would be 
substandard care even if on a temporary basis. We do not make changes 
based on this comment. We do not agree with the comment's equating of 
potential temporary underperformance of a VA medical service line with 
delivery of substandard care. Further, we reiterate from the proposed 
rule that Sec.  17.4015(e)(2) is necessary to allow VA to be selective 
in engaging in remediation that will require allocation of VA 
resources. We further note that, in such temporary situations, covered 
veterans might still be eligible to receive care in the community under 
the best medical interest criterion in Sec.  17.4010(a)(5), which may 
provide more nimble and timely access to care than the designation of a 
VA medical service line under Sec.  17.4015. A related comment 
requested clarification of the effect of the factor in Sec.  
17.4015(e)(2), more specifically whether VA intended this factor to be 
used to identify only those medical service lines that could be 
remediated easily. We clarify that this is not the intent of Sec.  
17.4015(e)(2); to the contrary, we reiterate from above that this 
factor should allow VA to designate as underperforming those VA medical 
service lines in need of the kind of intensive remediation envisioned 
by section 1706A, and not necessarily those services lines where a 
simple action is likely to occur and would be sufficient to remediate 
underperformance. As other commenters noted, VA is limited to the 
number of VA medical service lines it can designate nationally and at 
any particular facility. It would be a poor use of this authority to 
waste one of those limited opportunities to designate a VA medical 
service line that could be improved easily and quickly.
    We received one comment that requested VA provide more information 
on why data that may be required to assess the performance of VA and 
non-VA medical service lines could take as long as 18-24 months to 
collect or analyze, particularly if such data may already be collected 
by VA related to the performance of its medical service lines. The 
comment further urged VA to take steps to shorten this timeframe, to 
prevent scenarios where a covered veteran may receive what the 
commenter deemed sub-standard care for an extended time while VA 
determines whether its medical service lines are underperforming. We 
believe this comment is referring to the portion of the proposed rule 
that explained Sec.  17.4013(e)(3), which is the factor that would 
permit VA to consider recent trends concerning a VA or non-VA medical 
service line when determining if a VA medical service line is 
underperforming. The preamble of the proposed rule provided that the 
process to gather, analyze, and verify quality data could take as long 
as 18-24 months, and for this reason VA needed a factor that would 
permit it to consider more contemporaneous information to determine 
whether one of its medical service lines was underperforming. These 
data are inherently time-lagged, as much of the data we use is 
collected and reported by other entities (such as Medicare). Moreover, 
it may take months to collect enough data to support valid conclusions; 
small sample sizes are inherently unreliable, and if a particular VA 
medical service line simply does not furnish care to that many 
patients, it could take some time to generate enough cases to produce 
reliable results that would be actionable. We again reiterate, though, 
that covered veterans could still access care in the community under 
any of the five other eligibility criteria in Sec.  17.4010, including 
the best medical interest criterion under Sec.  17.4010(a)(5). We 
believe that Sec.  17.4015(e)(3) as proposed actually resolves the 
concern in the comment, because it expressly allows VA to consider 
contemporaneous information, and we make no changes based on this 
comment.
    We received one comment that urged VA to remove the designation 
factor in Sec.  17.4015(e)(6) as proposed, related to considering the 
effect that designating a VA medical service lines would have on other 
VA medical service lines. The comment characterized this factor as a 
loophole that would allow underperforming VA medical service lines to 
avoid designation, due to the negative effects such designation would 
have on other medical services lines. We disagree with the comment's 
characterization of this factor. We do, however, maintain that this 
factor is critical to allow VA to be selective in its designations, 
particularly for medical service lines whose designation may be more 
vastly disruptive, both to other VA medical service lines and other 
programs, than we believe is the intent of identifying any 
underperforming VA medical service lines under section 1703(e) 
generally. We do not make changes based on this comment.
    We received a few comments that did not seem clearly related to any 
of the factors in Sec.  17.4015(e)(1)-(6) as proposed, but that 
suggested clarifications or potential changes to Sec.  17.4015(e) based 
on particular services or particular veteran populations. One comment 
requested that VA clarify to what extent extended care services could 
be an underperforming medical service line, and another comment urged 
VA to consider the unique needs of women veterans in designating VA 
medical service lines as

[[Page 26287]]

underperforming. We do not make changes to Sec.  17.4015(e) based on 
these comments but do clarify that the rule does not place any 
limitations on what type of VA medical service lines may be designated, 
so such VA medical service lines could be those that provide extended 
care services (e.g., geriatrics) if VA finds them to be 
underperforming. Additionally, we believe that Sec.  17.4015(e) as 
proposed gives VA the latitude to consider all veteran populations, 
including women veterans, and we agree that VA should consider the 
unique needs of veteran populations when determining whether its 
medical service lines are underperforming.
    Lastly, we received a few comments that urged VA to develop and 
make public a dataset that compares providers, facilities, and 
practices based on VA's standards for quality, to provide covered 
veterans with additional information they may use when determining 
whether to elect to receive care in the community. We do not make any 
changes based on these comments but note that we address VA's 
communication of comparative information to inform health care 
decisions in the portion of this final rule that discusses 
miscellaneous comments.

Sec.  17.4020, Authorized Non-VA Care

    We received over 100 comments concerning the process and 
requirements for authorizing non-VA care under the VCCP. We address 
these comments below in the order in which they raise issues related to 
the provisions in paragraphs (a)-(d) of Sec.  17.4020 as proposed 
(including VA's supplemental notice of proposed rulemaking related to 
transplant care). We note that some of these comments did not suggest 
changes to the regulation text in Sec.  17.4020 as proposed, and 
further raised issues that were related more to administrative process 
rather than the regulatory requirements under which VA will authorize 
care. We will address below only those issues raised in comments 
regarding VA's requirements and authorities to authorize non-VA care as 
proposed and will address other issues related to administrative 
process in another section of this final rule related to miscellaneous 
comments.
    We did not receive comments to revise a covered veteran's election 
to receive care under the VCCP should they be so eligible, under Sec.  
17.4020(a) as proposed. We do reiterate, however, in response to many 
comments that expressed concerns related to the effects of expanding 
non-VA care on VA's direct provision of care, that Sec.  17.4010(a) 
requires a veteran's election to receive non-VA care under the VCCP; VA 
does not force covered veterans to receive non-VA care.
    Several comments did request clarification or revision of VA's 
authorization of care and services to be furnished through the VCCP if 
the covered veteran elects to receive such care, under Sec.  17.4020(a) 
as proposed. Some of these comments broadly opposed VA's specific 
authorization of care and services, for instance, those comments that 
asserted that a veteran's VA identification card should be all that is 
required to present to obtain care without further review or 
authorization requirements. Other comments were more specific, for 
instance, that VA should reduce or eliminate the requirement for VA 
authorization of care or services from approved non-VA providers who 
have a record of effective and efficient care within the Veterans 
Choice program. Still other comments further advocated that VA should 
eliminate the requirements for additional authorizations that may be 
required within an episode of care (referred to as secondary 
authorizations) because they were concerned that these authorizations 
could unduly delay the provision of care or services, such as 
additional testing that may be found to be required. One comment more 
specifically requested that any authorization of an episode of care 
that includes a surgical procedure should automatically cover any other 
care furnished during that procedure, and a related comment even more 
specifically requested that VA should require that follow up care for 
vascular surgical procedures (particularly imaging) be provided by the 
same non-VA vascular surgeon who provided the initial care or services 
to the covered veteran. We do not make changes based on these comments.
    We reiterate from the proposed rule that, in accordance with 
section 1703(a)(3), VA is required to authorize care or services that a 
covered veteran might elect to receive through the VCCP. This 
authorization of care and services covers an episode of care that may 
last up to one year, but only for care and services that are within the 
scope of the care or services initially authorized. VA has developed a 
process to facilitate access to necessary and ancillary services within 
an episode of care; we refer to these authorizations as standard 
episodes of care (SEOC). VA uses SEOCs to bundle services that are 
necessary and related so that referrals between different specialists 
are more easily facilitated and so that all specialty and ancillary 
services are included within the episode of care. For example, a 
veteran in need of knee replacement surgery would be authorized through 
a SEOC for pre- and post-operative examinations, the surgery itself, 
and physical therapy. The same would follow for a veteran in need of 
vascular surgery, as raised by the comment described above, for all 
specialty care and ancillary services that would reasonably be expected 
to be medically necessary after the surgery itself. However, the 
regulation will not prescribe at so granular a level, for instance, 
automatic approvals for particular follow-up care or for care to be 
provided by the same providers that initially performed surgical 
procedures. Requests for authorization of services outside the SEOC 
further allow VA to assess the need for care or services recommended by 
a non-VA provider, and whether these services fall within the approved 
episode of care or whether they constitute a new episode of care.
    Several comments asserted that a covered veteran's selection of a 
provider in Sec.  17.4020(b) as proposed did not actually ensure that a 
covered veteran could see his or her provider of choice. The primary 
reasons offered for why providers of choice were not available were 
that delays in VA's payment of claims, or other complications 
associated with VA's administration of its community care programs, 
created too many disincentives for non-VA providers to participate in 
such programs. We will address these comments, as well as other 
comments regarding VA's administration of its community care programs, 
in another section of this final rulemaking related to miscellaneous 
comments. However, we do note that even setting aside these operational 
concerns, VA cannot compel a private provider to furnish care and 
services to a covered veteran. If the covered veteran identifies a 
particular entity or provider as his or her preferred source of care, 
and if that provider or entity is within VA's network and accessible to 
the covered veteran, we would refer the veteran to that entity or 
provider. If the identified provider is not part of VA's network and 
does not wish to become part of VA's network (and VA cannot otherwise 
secure the care through a sharing agreement, other arrangement, or 
Veterans Care Agreement), VA cannot compel that provider to treat the 
covered veteran. We do not make any changes to Sec.  17.4020(b) as 
proposed based on these comments.
    A majority of the comments VA received related to Sec.  17.4020 as 
proposed raised issues related to emergency care that may be authorized 
by VA as set forth in Sec.  17.4020(c) as

[[Page 26288]]

proposed. We reiterate that we will address below only those issues 
raised in comments regarding VA's requirements and authorities to 
authorize emergency care as set forth in Sec.  17.4020(c), and we will 
address issues related more to administrative process of VA approving 
emergency care in another section of this final rule related to 
miscellaneous comments.
    We received a few comments that requested VA clarify any potential 
intersection or sharing of assessment criteria or other standards 
between emergency care furnished under the VCCP and emergency care 
separately furnished under 38 U.S.C. 1725 and 1728. We interpret these 
comments to be related to Sec.  17.4020(c) as proposed, as paragraph 
(c) established that it did not affect eligibility for, or create any 
new rules or conditions affecting, reimbursement for emergency 
treatment under sections 1725 or 1728. These comments ranged in their 
primary concerns for identifying the relationships between emergency 
care offered under different VA authorities. For instance, one comment 
wanted clarification of the reasonableness standard that would be 
applied under the VCCP to determine whether care or services were 
emergent in nature, and further advocated that the prudent layperson 
standard should be applied (specifically, to include post-
stabilization). Another comment requested clarification of the 
relationship between the varying emergency care authorities to ensure 
that covered veterans would understand when VA will likely authorize 
emergency care and reimburse for such care, versus the veteran possibly 
being liable. We do not make changes based on these comments.
    We believe that Sec.  17.4020(c) is sufficient to indicate that 
emergency care furnished through the VCCP is distinct from and does not 
affect emergency care provided under sections 1725 or 1728. We do 
clarify, however, that because paragraph (c)(1) of Sec.  17.4020 does 
reference section 1725(f)(1) to define emergency treatment, VA will use 
the prudent layperson standard as interpreted through section 1725. We 
understand this clarification that VA will use its section 1725 prudent 
layperson for emergency treatment furnished through the VCCP is not 
what was requested by the comment, which asserted that this very 
standard permitted VA to review decisions of reasonableness instead of 
VA using what would perhaps be considered a broader industry standard 
(for instance, as referenced by the comment to a Centers for Medicare 
and Medicaid Services standard of prudent layperson in 42 U.S.C. 300gg-
19a(b)(2)(A)). However, we believe VA's prudent layperson standard is 
reasonable to administer the furnishing of emergency treatment through 
the VCCP. This same comment also requested that VA revise Sec.  
17.38(a)(1)(iv) to expressly provide that emergency care under VCCP is 
part of the medical benefits package. We agree and are revising Sec.  
17.38(a)(1)(iv) accordingly. We believe this change will assist 
individuals in understanding that emergency care provided under the 
VCCP is separate from that provided under sections 1725 and 1728 and is 
a covered benefit under the VCCP.
    We received a comment that requested VA clarify that the term 
emergency treatment includes mental health care, which we interpret to 
be related to Sec.  17.4020(c)(1) as proposed as this paragraph 
referenced the definition of emergency treatment in 38 U.S.C. 
1725(f)(1). We do not make changes based on this comment, as we believe 
the reference to the definition of emergency treatment in section 
1725(f)(1) is sufficient to indicate that mental health services are 
considered within the scope of emergency treatment. Section 1725(f)(1) 
refers to medical care or services furnished in an emergency. We have 
interpreted this to apply to any care or services within VA's medical 
benefits package, which includes mental health services, as identified 
in Sec.  17.38(a)(1)-(2).
    Comments generally stated that the 72-hour rule in Sec.  
17.4020(c)(2) as proposed was not reasonable. Primarily, these comments 
asserted that the 72-hour timeframe was too short or did not provide 
exceptions where it may be exceeded. There were multiple reasons 
provided in the comments to support that the 72-hour rule should have 
exceptions, which we summarize and respond to below. We note that some 
of these reasons raise issues related to requirements in Sec.  
17.4020(c)(3) and (4) as proposed, related to requirements for approval 
and notice to VA, respectively.
    One comment stated that Sec.  17.4020(c) as proposed did not 
reflect what the comment asserted was the current regulatory option for 
an exception to the 72-hour rule, to provide VA notice within a 
reasonable amount of time after the emergency care was furnished. We 
note that no such exception exists in current regulation under Sec.  
17.54, and we see no reason to add such an exception here, as this rule 
would only apply to covered veterans and eligible entities or 
providers.
    Other comments offered reasons to establish exceptions to the 72-
hour rule that were related to veterans or non-VA providers not 
understanding what VA facility should receive the notice or who to 
contact at such VA facility. Some of these comments more specifically 
noted that neither the appropriate VA official nor the nearest VA 
facility in Sec.  17.4020(c)(4)(i) as proposed were clearly defined or 
characterized, particularly in instances where a veteran might be 
traveling and not be familiar with VA facility locations, or non-VA 
providers may not be familiar with VA facilities in their area. Some of 
these comments further requested clarification of who is considered an 
appropriate VA official, or requested that VA revise the requirement to 
allow notice to be delivered to any VA facility. As we explained in the 
proposed rule, only eligible entities or providers who have a contract 
or agreement to furnish care on VA's behalf may furnish care under 
Sec.  17.4020(c). While veterans who are traveling may not know the 
local VA facility, we are confident that each community entity or 
provider in our network will know the right VA facility to contact.
    Other comments offered reasons to establish exceptions to the 72-
hour rule that were related to the nature of receiving emergency care 
or services. For instance, these comments asserted that in many cases a 
covered veteran seeking emergency care will be in a compromised medical 
state, and therefore should not be expected to understand whether they 
are seeking care from authorized entities or providers, or to 
understand whether all care offered might be covered by the medical 
benefits package.
    Still other comments argued that exceptions are needed due to other 
circumstances, such as when the nearest VA facility might be closed 
after business hours or on holidays (to create delays in meeting the 
72-hour rule), or when 72 hours may simply not be enough time for a 
non-VA provider to have obtained all information required under Sec.  
17.4020(c)(4) (for instance, if a covered veteran presents for 
emergency treatment without identification). One of these comments 
further requested that VA revise the rule so that the 72-hour period 
would not begin until the later of when the entity or provider began 
furnishing the care or the time when a reasonably diligent non-VA 
entity or provider would have the information necessary to submit a 
notice to VA in compliance with Sec.  17.4020(c)(4).
    We do not make any changes based on these comments to create 
exceptions to the 72-hour rule in Sec.  17.4020(c)(2) as proposed. We 
reiterate from the

[[Page 26289]]

proposed rule that the 72-hour requirement is consistent with the 
window for approval under existing Sec.  17.54(a), and we believe the 
72-hour requirement continues to be a reasonable timeframe to allow 
notification upon stabilization of the patient or upon the next 
business day in the overwhelming majority of cases. VA will work to 
improve its communication materials for both veterans and eligible 
entities and providers concerning who may receive the notice and at 
what VA facility, without making changes to Sec.  17.4020(c)(2) through 
(4). We believe this improved communication will assist with effective 
and timely provisions of notice within the 72-hour requirement. We also 
clarify that if the 72-hour window is not met, VA will consider any 
claims for reimbursement of the costs of the emergency treatment under 
other authorities, specifically sections 1725 and 1728, which authorize 
reimbursement of certain non-VA emergency treatment; there is no 72-
hour requirement under either of these other authorities, but we do 
request notification under these authorities as soon as possible in the 
interest of coordination of care. We note that a veteran's personal 
financial liability, if any, could vary depending upon whether the care 
is authorized under section 1703 under the 72-hour rule or reimbursed 
under sections 1725 or 1728.
    One comment requested that VA clarify if it will define someone 
acting on the covered veteran's behalf in Sec.  17.4020(c)(2), or if VA 
will provide an exception to automatically approve care if a covered 
veteran is incapacitated (or, conversely, if VA will apply what the 
comment asserted was the current VA emergency room standard to non-VA 
emergency rooms). We do not make any changes based on this comment, as 
we believe the issues raised may be conflating the concept of a covered 
veteran's consent to receive emergency treatment with VA's approval of 
such treatment furnished through the VCCP.
    One comment requested that VA revise Sec.  17.4020(c) to permit 
that two emergency room visits be permitted through the VCCP at no 
charge to covered veterans. We interpreted this comment to be raising 
issues more related to VA's administration of its approval of emergency 
treatment, because it relayed concerns that covered veterans were 
unduly subject to cost liabilities for emergency treatment that the 
comment asserted VA failed to approve or pay timely. We will therefore 
address this comment in the section of this final rule that pertains to 
miscellaneous comments, although we do clarify here that Sec.  
17.4020(c) as proposed does not limit the number of visits to an 
emergency room for a covered veteran to receive emergency treatment 
through the VCCP.
    Lastly, one commenter asserted that VA should add urgent care in 
addition to emergency treatment as available care and services under 
the VCCP. We do not make changes based on this comment but do clarify 
that VA is promulgating separate regulations, published elsewhere in 
this issue of the Federal Register, to furnish urgent care through non-
VA providers (see RIN 2900-AQ47, published as a proposed rule on 
January 31, 2019 (84 FR 627)).
    On April 5, 2019, VA published a Supplemental Notice of Proposed 
Rulemaking (SNPRM) to amend VA's proposed rule by proposing a minor 
revision to paragraph (a) and a new paragraph (d) to account for 
section 1703(l) and its language concerning organ and bone marrow 
transplants. 84 FR 13576. VA received 10 comments on this SNPRM. One 
comment was a request for case management assistance, which VA has 
addressed but which was beyond the scope of the rulemaking. We make no 
changes based on this comment. Four comments supported the changes 
proposed by the SNPRM. We make no changes based on these comments. One 
comment raised concerns regarding billing and payments for community 
providers. The commenter stated that clear definitions of how payments 
will be processed and paid between VA and the community providers is 
important to minimize any confusion in the billing process. The SNPRM 
did not address claims or billing issues because these were separately 
addressed in Sec.  17.4035 of the proposed rule. We received comment on 
the proposed rule regarding billing and claims payment, which we 
address more fully below. In brief, however, we do not regulate VA's 
process for claims submissions or billing at this time. VA contracts 
and agreements will establish these requirements between the parties, 
and rules of general applicability, particularly regarding prompt 
payment, will be regulated at a later time. We make no changes based on 
this comment.
    One commenter requested that VA provide examples of medically 
compelling reason for a veteran to seek transplant services outside of 
the Organ Procurement and Transplantation Network (OPTN) region in 
which the veteran resides. We do not make changes based on this comment 
but clarify that examples of medically compelling reasons were provided 
in Sec.  17.4020(d)(2)(i) through (iv) as proposed and were discussed 
in the SNPRM. This same commenter requested for VA to clarify how OPTN 
regions and distance considerations in Sec.  17.4020(d)(2)(iii) as 
proposed will interact in determining whether a transplant will be 
authorized. We do not make changes based on this comment but clarify 
that Sec.  17.4020(d)(2)(iii) provides that VA will consider travel 
burden on covered veterans when deciding to authorize transplantation 
care at a transplant center outside the Veteran's OPTN region of 
residence. Geographical proximity of a qualified transplant center in 
an OPTN region adjacent to the patient's residence will be considered 
when burden of travel is meaningfully impacted. Availability of 
services in consideration for authorization of care in another OPTN 
region is cited in Sec.  17.4020(d)(2)(iv) as timeliness of transplant 
center evaluations and management. Transplant program qualifications 
are further addressed by Sec.  17.4020(d)(2)(i) and (ii). Transplant 
programs must meet standards for quality, and specific patient factors 
may include a disease process or transplantation procedure that 
warrants referral to selected transplantation centers, including those 
in a different OPTN region.
    One commenter suggested that VA permit Veterans to be listed on 
more than one OPTN regional list if indicated, to increase their chance 
of being matched. We do not make changes based on this comment but 
clarify that the listing of Veterans on more than one OPTN regional 
list is not prohibited by the regulation. Related policy will specify 
that such listing is an appropriate consideration for authorization of 
care in an OPTN region other than that of the Veteran's residence.
    One commenter asserted that the SNPRM failed to clarify the 
differences between solid organ transplant and bone marrow transplant. 
This commenter more specifically noted that bone marrow transplant 
falls outside of the scope of OPTNs, and that the proposed rule only 
indicated how VA Transplant Programs and VA Transplant Centers interact 
with OPTNs; hence, the commenter indicated that VA should clarify 
whether the rule captures bone marrow transplants. We do not make any 
changes based on this comment, as the MISSION Act includes provisions 
for both bone marrow transplantation and solid organ transplantation. 
VA understands that OPTN does not oversee bone marrow transplantation, 
but the rule does cover bone marrow transplants. This same commenter 
further suggested that the four factors in

[[Page 26290]]

Sec.  17.4020(d)(2) to be considered when determining a medically 
compelling reason to travel outside of the OPTN must be revised to 
include relevant details for bone marrow transplant. For instance, the 
commenter noted that the factor related to assessing facilities outside 
of an OPTN to determine whether they meet VA's standards for quality in 
Sec.  17.4020(d)(2)(ii) as proposed was only explained in the preamble 
of the SNPRM in reference to Scientific Registry of Transplantation 
Recipients data, which is only applicable to solid organ. We do not 
make changes based on this further comment. VA understands that 
relevant patient factors may vary based upon the specific transplant 
both among solid organ types and bone marrow transplant, which is 
precisely why the SNPRM noted the four factors in Sec.  
17.4020(d)(2)(i)-(iv) were a non-exhaustive list. The Scientific 
Registry of Transplantation Recipients database is provided only as an 
example. Additional standards for solid organ transplantation programs 
and separate standards for bone marrow transplantation programs will be 
developed during policy and procurement processes.
    We received one comment that requested that VA clarify that it is 
the veteran's choice whether to obtain a VA or non-VA transplant within 
the Veteran's OPTN (the commenter essentially asserted that the SNPRM 
was unclear that the veteran first has a choice of a non-VA transplant 
center within the OPTN prior to any consideration of travel outside of 
an OPTN). We do not make changes based on this comment. A covered 
veteran who is determined by VA to meet eligibility criteria for 
community care in proposed Sec.  17.4010 has the ability to decide 
whether to receive transplantation care in the community within the 
OPTN region of residence. Veterans who meet eligibility criteria for 
community care may elect to receive care at a VA Transplant Center. 
This commenter also asserted that section 1703(l) requires only that a 
veteran be a covered veteran to be considered eligible for this 
expanded access to transplant care and does not require such a covered 
veteran to be separately assessed under any other criteria (e.g., the 
criteria to receive community care generally under section 1703(d) or 
(e)). We believe this portion of the comment was prompted by VA's 
clarification in the SNPRM that this expanded access to transplant care 
only applies for a covered veteran (as defined in Sec.  17.4005) who 
meets one or more of the eligibility criteria for community care 
generally under Sec.  17.4010. We do not make changes based on this 
comment. We read section 1703(l) as qualifying the conditions of 
eligibility set forth in section 1703(d) and (e); there is nothing in 
section 1703(l) that suggests it is intended to establish an 
additional, independent basis of eligibility for community care. 
Moreover, the expanded access to transplant care under section 1703(l) 
is available only if there is a medically compelling reason to travel 
to receive such care. VA cannot envision any instance in which a 
covered veteran would be found to have a medically compelling reason to 
justify travel outside of an OPTN, but not be found to qualify 
separately for community care generally under Sec.  17.4010(a), 
particularly considering that the factors to determine a medical 
compelling reason under Sec.  17.4020(d)(2)(i)-(iv) are related to many 
of the eligibility factors in Sec.  17.4010 (for instance, factors 
exist under Sec. Sec.  17.4010(a) and 17.4020(d) that relate to the 
specific medical needs of a veteran, the travel burden for a veteran, 
and the timeliness of care to be received). This commenter further 
asserted that VA should ensure a veteran's primary care physician 
receives deference over the Secretary in the determination of whether a 
veteran is eligible to travel outside of the OPTN. We do not make 
changes based on this comment. Section 1703(l) requires that the 
Secretary make the determination of whether to authorize community care 
for covered veterans requiring an organ or bone marrow transplant and 
who have a medically compelling reason to travel outside of the OPTN 
region in which they reside to receive the transplant. The Secretary's 
determination is only made when the primary care provider has opined 
that there is a medically compelling reason to travel outside the OPTN 
region in which the veteran resides to receive such transplant; this 
opinion is a threshold question of when the Secretary makes a 
determination, and not a final resolution of the matter. Lastly, this 
commenter urged that VA should include in the final rule a specific 
timeframe within which VA is required to make a decision on requests to 
travel outside OPTN for non-VA transplant, as well as a means for 
expedited decision or waiver of such a decision. We do not make changes 
based on this comment. Timeframes may be influenced by factors such as 
the type of transplant, patient disease process, and patient acuity. It 
would not be practicable to define specific timeframes by regulation, 
given the variability of these factors. However, VA will develop policy 
that will address such timeframes.

Sec.  17.4025, Effect on Other Provisions

    We received over 50 comments concerning the effects of Sec. Sec.  
17.4000 through 17.4040 as proposed upon provisions of VA law that 
establish other criteria for the receipt of care or services. We 
address these comments below in the order in which they raised issues 
related to the provisions in paragraphs (a)-(c) of Sec.  17.4025 as 
proposed.
    We did not receive any comments that requested revisions to or 
clarifications for Sec.  17.4025(a) as proposed, although as a general 
matter we did receive some comments that seemed to call for expanding 
eligibility for certain care and services under the VCCP beyond that 
which is established in other specifically applicable provisions of VA 
law (for instance, multiple comments called for the expansion of 
eligibility for VA dental care). Other comments did not seek expanded 
eligibility for certain care or services under the VCCP but did assert 
that the rule as proposed did not provide adequate explanation of 
eligibility for certain benefits such as dental care. We do not make 
any changes based on these comments and reiterate from the proposed 
rule that consistent with section 1703(n)(2), no provision in the rule 
may be construed to alter or modify any other provision of law 
establishing specific eligibility criteria for hospital care, medical 
services, or extended care services (such as for dental care). If 
specific services such as dental care under Sec. Sec.  17.160-17.169 
have unique eligibility standards, only covered veterans who are 
eligible under proposed Sec.  17.4010 and meet such eligibility 
standards can elect to receive them through the VCCP.
    A majority of the comments we received on Sec.  17.4025 as proposed 
related to Sec.  17.4025(b), regarding VA's criteria under the VCCP to 
fill or pay for prescriptions issued by non-VA providers. Some of these 
comments did not suggest changes to or clarification of the regulation 
text in Sec.  17.4025(b) as proposed, but rather seemed to present 
issues related to administrative process rather than regulatory 
requirements (primarily, VA's administrative practices in reviewing 
prescriptions issued by non-VA providers). We will address below only 
those issues raised in comments regarding VA's requirements in Sec.  
17.4025(b) as proposed, and will address other issues related to 
administrative process in another section of this final rule related to 
miscellaneous comments.

[[Page 26291]]

    As proposed, Sec.  17.4025(b)(1) established the rule that VA would 
pay for prescriptions written by eligible entities and providers for a 
course of treatment not to exceed 14 days, and paragraph (b)(2) 
established that VA would fill prescriptions written by eligible 
entities and providers without any accompanying 14-day limitation. As 
explained in the preamble of the proposed rule, the intent of Sec.  
17.4025(b)(1) and (2) was to establish in VA regulations the long-
standing VA practice of limiting its payment for medications written by 
non-VA providers and filled through non-VA pharmacies, rather than 
limiting VA's direct filling of such prescriptions through VA's 
Consolidated Mail Order Pharmacy (CMOP) system. We first address a 
comment that revealed an inadvertent omission in the regulation text at 
Sec.  17.4025(b)(1) as proposed, related to when VA will pay for non-VA 
prescriptions. This comment specifically urged VA to change its 
practice of requiring veterans to pay for urgent or emergent 
prescriptions filled outside of VA's CMOP and then seek reimbursement 
from VA. This comment correctly summarized VA's practice at the time 
the proposed rule published, although Sec.  17.4025(b)(1) as proposed 
did not contain any qualifying language related to VA paying for 
prescriptions written by non-VA providers only when they were urgently 
or emergently needed. We therefore revise Sec.  17.4025(b)(1) to 
include qualifying language that VA will pay for prescriptions no 
longer than 14 days written by eligible entities or providers for 
covered 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 an urgent or emergent condition. In 
response to the request in this same comment that VA correct its 
practice of reimbursing veterans, to instead pay directly for 
prescriptions urgently or emergently needed for a course of treatment 
not to exceed 14 days, we clarify that VA's use of the term ``pay'' 
versus ``reimburse'' in Sec.  17.4025(b)(1) was intended to and does 
create the option for VA to pay directly for these prescriptions. VA 
expects that upon full implementation of the Community Care Network of 
eligible entities and providers, the pharmacy benefits management 
options under those contracts will provide for VA to pay non-VA 
pharmacies directly for prescriptions written by eligible entities and 
providers to cover a course of treatment for an urgent or emergent 
condition and not to exceed 14 days.
    We received multiple comments that indicated a general 
dissatisfaction with VA's practice of limiting payment for 
prescriptions written by non-VA providers, as well as comments that 
more specifically asserted that the 14-day limitation in Sec.  
17.4025(b)(1) as proposed was unreasonable because VA did not establish 
any exceptions to this limitation, with one comment requesting a 
revision to Sec.  17.4025(b)(1) to allow for payment of a course of 
treatment greater than 14 days if VA is unable to fill that greater 
course through its Consolidated Mail Order Pharmacy (CMOP) system. 
Other comments requested an expansion of the 14-day limitation, such as 
a broad expansion of the limitation to 30 days, with one comment noting 
that a 30-day supply of medication should be approved for outpatient 
surgery specifically (to reduce potential post-surgical injuries or 
complications). We received other comments that did not suggest 
revisions or exceptions to the 14-day limitation per se, but that 
requested clarifications regarding its application. For instance, one 
comment requested clarification of VA's practices in paying for 
medications that are prepackaged for durations exceeding 14 days and 
that cannot be divided. We do not make any changes based on these 
comments that expressed general dissatisfaction with the 14-day 
limitation, or comments that VA should establish exceptions to or 
expand the 14-day limitation. As explained above, VA's only pays for 
non-VA prescriptions that are filled through non-VA pharmacies if they 
are needed to cover a course of treatment for urgent or emergent 
conditions. The 14-day limitation is a function of the limitation 
related to urgent and emergent conditions, as courses of medication for 
longer periods of time are not typically prescribed to treat urgent or 
emergent conditions. VA also has a responsibility to monitor the 
prescription of medications to ensure appropriate prescribing practices 
and general patient care. Using the outpatient surgery example as 
provided in one of the comments, typical medications issued following 
surgery such as antibiotics and pain killers are particularly important 
for VA to review and fill via the CMOP because such medications create 
medical concerns (such as antibiotic resistance, potential opiate 
monitoring issues, or other adverse events) if they were to be issued 
for and taken longer than 14 days. We also reiterate from the proposed 
rule that the current practice to limit payment for non-VA 
prescriptions allows VA to ensure that any amount of medication 
exceeding 14 days would be filled through VA's CMOP system to ensure 
cost and quality controls. VA believes that the economies of scale 
related to bulk purchase of medications allow for the best use of 
Federal resources.
    We received one comment that asserted non-VA providers must verify 
that prescribed medications are available through VA's formulary and 
comply with VA's practice guidelines, to avoid scenarios where covered 
veterans might receive prescriptions VA will not fill. We first note 
that we do not have anecdotal knowledge that there are widespread or 
recurring issues that non-VA providers are issuing prescriptions that 
VA cannot or will not fill because such medications are not on VA's 
formulary, or because the prescription contradicts VA's practices or 
guidelines. However, VA will review its administrative practices in 
reviewing and filling prescriptions issued by non-VA providers, to 
ensure it develops any necessary education or communication to non-VA 
providers to prevent those scenarios. We do not make any changes based 
on this comment but do note that Sec.  17.4025(b)(1) and (2) as 
proposed generally requires that medications issued by non-VA providers 
must be available under the VA national formulary system. There are 
exceptions where VA may fill non-formulary prescriptions issued by non-
VA providers, and such requests for exceptions are reviewed under 
specific procedures in VHA Directive 1108.08, VHA Formulary Management 
Process, which can be found on VA's website.
    We received a few comments related to the prescribing of durable 
medical equipment (DME) by non-VA providers under Sec.  17.4025(b)(3)-
(4) as proposed. Some comments asserted that the rule should not 
require VA oversight or approval of prescriptions from non-VA providers 
for durable medical equipment (DME). Other comments were more specific, 
with one comment requesting clarification of who determines and what 
standards are used to determine when DME is immediately needed under 
Sec.  17.4025(b)(3) as proposed, and further asserting that it should 
be determined by the prescribing clinician. Another comment requested 
that VA revise Sec.  17.4025(b)(3) as proposed to specify that DME is 
an immediate need if it is required to safely discharge a patient from 
an urgent or emergent care setting, and that Sec.  17.4025(b)(3) and 
(4) should be revised to expressly include home oxygen as covered under 
DME.
    With regard to comments concerning general VA oversight and 
approval of DME that is prescribed by non-VA

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providers, we reiterate from the proposed rule that because DME and 
medical devices prescribed by non-VA health care providers are specific 
to a particular clinical need and in most cases are further 
specifically tailored to fit or serve an individual, they require 
oversight and approval by VA (except when urgently or emergently 
needed) to ensure clinical appropriateness and the best use of Federal 
resources. We therefore do not make any changes based on those 
comments. With regard to comments concerning who determines and under 
what standards that DME is immediately needed, as well as the comments 
concerning the specific revisions related to immediate need, we first 
reiterate that DME to address an immediate need for urgent or emergent 
conditions does not require VA oversight or approval, and therefore 
would be issued by the treating or prescribing clinician without VA 
review. We next reiterate from the proposed rule that an immediate need 
for DME exists when a covered veteran has a medical condition of acute 
onset or exacerbation that manifests itself by severity of symptoms 
including pain, soft tissue symptomatology, bone injuries, etc. We 
believe the language in Sec.  17.4025(b)(3) as proposed provides 
sufficient but non-exhaustive examples of the types of DME that are 
typically necessary to address such immediate needs (i.e., splints, 
crutches, manual wheelchairs), and Sec.  17.4025(b)(3) otherwise makes 
clear that urgent and emergent conditions meet the immediate need 
standards. We therefore do not make changes based on this comment. With 
regard to the comment concerning expressly adding home oxygen as 
covered DME, we clarify that home oxygen is considered DME for purposes 
of Sec.  17.4025(b)(3) and (4) without further revisions to the 
proposed rule.
    We received comments related to covered veterans' possible 
copayments in using community care under the VCCP, which we interpret 
to be related to Sec.  17.4025(c) as proposed. Some comments urged that 
the rule should not change anything related to current copay structures 
and procedures. One comment asserted American Indian/Alaskan Native 
veterans should not be charged copayments for care received under the 
VCCP, as this was inconsistent with Federal trust obligations. We do 
not make any changes to the rule based on these comments and reiterate 
from the proposed rule that veterans will continue to be liable as 
applicable under Sec. Sec.  17.108(b)(4) and (c)(4), 17.110(b)(4), and 
17.111(b)(3) for copayments for community care that is furnished 
through the VCCP. The VCCP will not alter the current treatment of 
veteran copayments under VA's traditional community care program or the 
Veterans Choice Program. We also reiterate from the proposed rule that 
veterans who receive care from the Indian Health Service (IHS) and 
Tribal Health Programs (THP) under a sharing agreement with VA will not 
be affected by regulations that implement the VCCP; the existing VA 
reimbursement agreements between IHS, THPs and VA control all 
parameters of how that care is provided, including whether copayments 
are charged.

Sec.  17.4030, Eligible Entities and Providers

    We received over 200 comments related to non-VA entities and 
providers that may furnish hospital care, medical services, or extended 
care services through the VCCP. We address these comments below in the 
order in which they raised issues related to the provisions in 
paragraphs (a)-(c) of Sec.  17.4030 as proposed.
    A majority of these comments asserted that VA should ensure non-VA 
providers are similarly qualified and competent as VA providers to 
furnish the same levels of care as VA providers. These comments more 
specifically urged that non-VA providers must: Be properly licensed/
credentialed; use evidence-based treatment; and have specific training 
in clinical areas where VA has developed particular expertise (e.g., 
post-traumatic stress disorder, traumatic brain injury, etc.). Some of 
these comments further stated that if non-VA providers cannot furnish 
care or services as well as VA providers, then those providers should 
not be an option that covered veterans may choose to furnish community 
care under the VCCP. Lastly, a few of these comments also asserted that 
if non-VA providers do not submit full medical documentation for care 
or services furnished under the VCCP (and not mere submission of 
invoices or bills), VA must not pay them. We interpret these comments 
to be related to Sec.  17.4030(a) as proposed, as some of the comments 
specifically alluded to VA establishing more specific requirements for 
providers in the contracts, agreements, or other arrangements the 
providers enter into under Sec.  17.4030(a).
    Regarding the general need for VA to establish requirements for 
non-VA providers, we agree with the comments that it is critical for 
covered veterans to receive competent care from qualified non-VA 
providers should such veterans elect to receive care under the VCCP. 
However, we do not make any changes to Sec.  17.4030 based on these 
comments. The rule at Sec.  17.4030(c)(2) as proposed requires VA to 
assess the qualifications of the entity or provider to furnish the 
needed care or services in determining whether the provider is 
accessible to the covered veteran. These assessments can include 
licensing and credentialing information that VA collects under OMB 
control number 2900-0823. VA additionally requires submission of 
medical records as part of their claims for all non-VA care and 
services furnished under the rule (also under OMB control number 2900-
0823) and as required by 38 U.S.C. 1703(a)(2)(A). VA reviews all 
licensing and credentialing information to ensure non-VA providers meet 
applicable standards for care needed, as well as medical records to 
ensure care was provided appropriately and within the scope of 
authorization. Although not part of the proposed rule, VA is 
establishing competency standards and requirements for the provision of 
care by non-VA providers in clinical areas where VA has developed 
special expertise, in accordance with section 133 of the MISSION Act. 
We are not regulating these standards to permit flexibility, as such 
standards are based on clinical practice and can be subject to change. 
VA's contracts, agreements, or other arrangements will impose 
requirements to meet these competency standards.
    We received some comments that asserted VA should permit Medicare 
providers to participate in VCCP. We do not make changes based on these 
comments, as Medicare providers are a type of provider permitted under 
section 1703(c) to participate in VCCP, and are otherwise permitted to 
enter into contracts, agreements, or other arrangements with VA to 
furnish care and services under Sec.  17.4030(a).
    We received a few comments that requested clarification on whether 
or to what extent providers employed by VA could also participate in 
VCCP as eligible entities and providers to furnish care or services 
under Sec.  17.4030(b) as proposed. We reiterate from the proposed 
rule, without changes to Sec.  17.4030(b) as proposed, that providers 
who are employees of VA may not be acting within the scope of their 
employment while providing care or services through the VCCP. 
Essentially, VA providers may participate in VCCP as long as it is not 
during their VA-employed work hours.
    We received a few comments that requested clarification of how VA 
would assess whether a non-VA provider is accessible to a covered

[[Page 26293]]

veteran under Sec.  17.4030(c) as proposed. These comments generally 
seemed to inquire whether Sec.  17.4030(c)(1) and (3) (related to VA 
assessing the length of time the veteran would have to wait to be seen 
by the non-VA provider, and the distance between the veteran's 
residence and that provider, respectively) were essentially VA's 
application of its access standards to non-VA providers, as such access 
standards were set forth in Sec.  17.4040 as proposed. Those comments 
that assumed Sec.  17.4030(c) did seek to apply VA's access standards 
to non-VA providers were primarily supportive of such an assumption. 
However, a few comments noted that applying such standards to non-VA 
providers was not feasible or advisable. One comment that opposed 
applying VA's access standards to non-VA providers more specifically 
asserted that non-VA providers would be discouraged from participating 
in the VCCP if they had to comply with VA's access standards, as this 
would amount to preferred treatment of veteran patients over non-
veteran patients in terms of timeliness of appointments.
    We clarify that VA did not intend for Sec.  17.4030(c)(1) and (3) 
to establish a regulatory mechanism to apply VA's access standards as 
set forth in Sec.  17.4040 to non-VA providers. This does not mean, 
however, that VA will not endeavor to ensure that community health care 
providers are able to comply with the applicable access standards 
established by VA, as VA is required to do so under section 1703B(f). 
To clarify VA's intentions, VA intends to establish access standards 
for non-VA providers in the contracts, agreements, or other 
arrangements that eligible entities or providers enter into under Sec.  
17.4030(a) as proposed, as opposed to establishing access standards for 
non-VA providers in regulation. We do not make changes to Sec.  
17.4030(c) as proposed based on these comments.
    Although we do not make changes to Sec.  17.4030(c) as proposed 
based on these comments, we do offer the following clarifications as 
requested by comments regarding how VA will use Sec.  17.4030(c)(1) and 
(3) to assess whether a non-VA provider is accessible. By considering 
the length of time a veteran would have to wait to receive hospital 
care or medical services from a non-VA entity or provider under Sec.  
17.4030(c)(1) as proposed, VA can ensure that veterans receive care as 
quickly as possible. If a veteran selects a non-VA provider who cannot 
see the veteran for several months, VA would probably determine that 
provider was inaccessible, and could then provide the veteran with 
other options of non-VA providers to potentially schedule an 
appointment sooner. By considering the distance between the covered 
veteran's residence and the non-VA provider, VA can ensure that 
veterans receive care closer to their residence. If a veteran resides 
in New York and selects a provider in California (to receive care in 
California when they otherwise would not be residing in California at 
the time of the appointment), VA would probably determine that provider 
was inaccessible, and could then provide the veteran with other options 
of non-VA providers that would be closer to their residence at the 
expected time of the appointment. In either scenario (distance or time 
for an appointment), VA's decision regarding accessibility is not pre-
determined; these will be case-by-case decisions. We believe these 
factors will be most relevant in situations where a covered veteran has 
not selected a particular non-VA provider, but is looking for VA to 
identify a non-VA provider that can furnish the care for them. In such 
cases, we would use these factors to determine which providers should 
be offered as possible options. If a covered veteran has selected a 
particular provider, we may determine in some cases that the provider 
is inaccessible (as in the New York/California example above), while in 
other cases, such cross-country travel might be approved (if, for 
example, there were only one or two providers in VA's network that 
furnished a specific type of service). In more typical cases, we 
anticipate that the veteran's selection of a particular provider will 
likely be approved, even if a particular provider might have a slightly 
longer wait time or be slightly further away from the veteran, as this 
would be the veteran's choice.
    We also note that Sec.  17.4030(c)(2) as proposed will consider the 
qualifications of the entity or provider to furnish the hospital care, 
medical services, or extended care services the veteran requires. If an 
entity or provider does not have the expertise or equipment necessary 
to provide the required care or services, the needed care is not 
accessible from that provider, and VA may not authorize a patient to 
receive care or services from that entity or provider. We raise this 
last factor in Sec.  17.4030(c)(2) as proposed to reiterate as stated 
above that VA will consider these factors together to make 
accessibility determinations on a case-by-case basis, considering each 
veteran's specific needs. Sometimes, there may be several eligible 
entities or providers that could deliver care close to the veteran's 
residence, and in such a scenario, distance likely will not matter. In 
other situations, there may only be one provider near the veteran's 
residence, but this provider either has extended wait times or lacks 
the expertise or equipment to provide the necessary care. VA will need 
to balance these competing interests and the preference of the veteran 
to determine whether an entity or provider is accessible.
    We are making minor changes to paragraph (c) to use the term 
covered veteran in lieu of the term eligible veteran in several places. 
The term eligible veteran is used in Sec.  17.1530 because it is a 
defined term in Sec.  17.1505. Under the VCCP regulations, we use the 
term covered veteran, as defined in Sec.  17.4005. This change simply 
removes any ambiguity as to the term and does not alter the effect or 
meaning of the rule.
    Lastly, we received a comment that requested VA specifically 
include in these regulations outreach, training, and other assistance 
to non-VA providers to expand the Patient-Centered Community Care (PC3) 
network, as the commenter asserted that such expansion is particularly 
critical to deliver community care in underserved areas. We do not make 
changes based on this comment, as this comment presents an operational 
request that is more appropriately addressed through contract or 
policy. We do clarify, however, efforts on VA's part to improve 
education of providers regarding the formation of contracts under 
section 1703(h) through the Community Care Network in the portion of 
this document that discusses miscellaneous comments.

Sec.  17.4035, Payment Rates

    We received over 25 comments concerning the parameters under which 
VA establishes payment rates for care and services furnished through 
the VCCP, as set forth in Sec.  17.4035 as proposed. We address these 
comments below in the order in which they raised issues related to 
provisions in paragraphs (a)-(e) of Sec.  17.4035 as proposed. We note 
that some comments we received related more to administrative processes 
associated with payment for care and services (e.g., how VA pays non-VA 
providers), rather than the regulatory requirements from the proposed 
rule; we will address such administrative comments in the section of 
this final rule related to miscellaneous comments.
    We received some comments that asserted that VA should not pay 
below applicable Medicare fee schedules or prospective payment system 
amounts, to ensure non-VA providers are not

[[Page 26294]]

discouraged from participating in the VCCP. One comment was more 
specific, noting that VA should pay at full applicable rates for 
inpatient care that go beyond Medicare's professional fee schedule, 
including at academic hospitals that have both indirect medical 
education (IME) and direct medical education (DME) billing components. 
We do not make changes to Sec.  17.4035(a) as proposed based on these 
comments. The limitation of VA's payment rates to be no higher than 
Medicare, versus being designated the same as Medicare rates, is 
consistent with section 1703(i)(1) that, with exceptions, the rates VA 
pays for care and services may not exceed the applicable Medicare rate. 
We clarify, however, that VA has typically paid at applicable Medicare 
rates under the Veterans Choice Program, to avoid the scenario raised 
by comments where non-VA providers are discouraged from participating 
in VA community care programs. With regard to the specific concerns in 
paying IME or DME billing for academic hospitals, we also do not make 
changes to Sec.  17.4035(a) as proposed but do clarify that VA does pay 
adjustments to Medicare costing as applicable and appropriate.
    One comment requested that VA provide more details on how it will 
determine payment rates for inpatient services provided by critical 
access hospitals, as the statutory authority for setting rates for such 
hospitals (42 U.S.C. 1395m) was referenced in Sec.  17.4035(a) as 
proposed. This comment further voiced support for VA using a cost-based 
approach to determine rates for critical access hospitals. We do not 
make changes based on this comment. We believe the language in Sec.  
17.4035(a) and its reference to 42 U.S.C. 1395m is sufficient to allow 
VA to calculate appropriate rates for critical access hospitals.
    One comment requested that VA confirm that use of the term Medicare 
rate in Sec.  17.4035 generally means a rate unaffected by Federal 
budget sequestration. We do not make changes based on this comment and 
can only confirm that to the extent Medicare's rates or adjustments are 
unaffected by budget sequestration, so too will VA's rate setting be 
unaffected under the parameters established in Sec.  17.4035. 
Similarly, and inversely, if sequestration did modify the rates paid 
under the Medicare program, VA's rates would also potentially change. 
We do not believe sequestration would change the Medicare fee schedule, 
but we acknowledge that it could affect the Centers for Medicare and 
Medicaid Services' (CMS) ability to pay. VA's payment rates for any 
particular service to any particular provider will be established 
through the terms set forth in the contract or agreement and may 
reference the Medicare fee schedule in general. If such terms are fixed 
to a specific dollar amount, any change in the Medicare rate will not 
otherwise serve to modify the terms of that contract or agreement. 
However, if the terms in the contract or agreement are relative, such 
as by referencing the Medicare fee schedule, then changes to the 
Medicare fee schedule would carry over per the terms of the contract or 
agreement.
    The parenthetical language in Sec.  17.4035(a) as proposed would 
establish that VA's payment rate adjustments occur only on an annual 
basis in line with Medicare's annual payment updates. One comment 
requested that VA revise this parenthetical language to require VA to 
conform to Medicare's rate adjustment approaches in their entirety. 
This change would result in changes to VA's rates on a much more 
frequent basis than the annual payment updates issued by Medicare that 
VA presently follows. We do not make changes based on this comment. VA 
does not have access to the information or systems that Medicare uses 
to adjust payments on a more frequent basis than annually, based on 
such factors as quality or performance, utilization, etc., and as such, 
cannot operationalize this aspect of the Medicare program's payment 
schedule.
    We did not receive comments concerning Sec.  17.4035(b) as 
proposed, and therefore do not make any changes.
    We received one comment recommending VA revise Sec.  17.4035(c) as 
proposed, to expand the definition of highly rural area to include 
rural area. This comment further stated that VA should utilize the 
Rural-Urban Commuting Areas system, developed by the Department of 
Agriculture and the Department of Health and Human Services, to define 
rurality. We do not make changes based on this comment. We reiterate 
from the proposed rule that use of the term highly rural area is 
prescribed by and specifically defined in statute in section 
1703(i)(2)(B).
    A few comments requested clarification as to how VA will determine 
that limiting its payment rates to applicable Medicare rates is not 
practicable, as permitted under Sec.  17.4035(d) as proposed. Some 
comments further requested clarification of how eligible entities or 
providers would be notified of allowable payment rates in excess of 
Medicare rates. One comment specifically requested that VA should 
ensure women veterans' medical needs were considered as a factor when 
establishing rates in excess of Medicare. We do not make any changes 
based on these comments, although we do reiterate from the proposed 
rule that payment rates are ultimately set forth in the terms of the 
contract or agreement under which the care and services are furnished. 
As set forth in Sec.  17.4035(d), the factors that could prove 
persuasive in terms of determining impracticability as identified in 
the proposed rule include patient needs, market analyses, and provider 
qualifications, among others. General market conditions usually 
establish that supply and demand can establish a price equilibrium, and 
we believe these conditions will also inform when it would be 
impracticable to pay the Medicare rate.
    A few comments requested clarification as to how VA will determine 
payment rates for non-Medicare services, particularly for extended care 
services (e.g., home health, adult day health care, and respite care). 
Some of these comments further requested that VA be transparent about 
establishing and updating these rates, but not necessarily that VA 
revise Sec.  17.4035 to do so. We do not make changes based on these 
comments. As noted in Sec.  17.4035(a), the rates paid by VA for 
hospital care, medical services, or extended care services furnished 
pursuant to procurement contract or an agreement authorized by 
Sec. Sec.  17.4100 through 17.4135, will be the rates set forth in the 
terms of such contracts or agreements. Any services for which there is 
no Medicare rate will be determined in accordance with the defined 
terms in the contract or agreement.
    We received one comment related to the portion of the preamble that 
explained Sec.  17.4035(e) as proposed, which requested that VA explain 
why fiscal year (FY) 2003 data is used to determine amounts under VA's 
Alaska Fee Schedule. We do not make changes based on this comment but 
clarify that the VA Alaska Fee Schedule was originally introduced 
following an actuarial study completed by VA in 2001, in which VA 
determined that special circumstances exist in Alaska that warranted a 
specific fee schedule be calculated in order to avoid limitations on 
Veteran access to care. Based on this study, and pursuant to notice-
and-comment rulemaking, VA promulgated a regulation at 38 CFR 17.56(d) 
to establish the VA Alaska Fee Schedule (see 70 FR 5926, February 4, 
2005). The provision in Sec.  17.56(d) as originally

[[Page 26295]]

promulgated used FY 2003 data and indicated that VA will increase the 
amounts on the VA Alaska Fee Schedule annually beginning in 2005 in 
accordance with the published national Medicare Economic Index (MEI). 
VA has used the MEI to annually update data from the previous fiscal 
year's Alaska Fee Schedule, since this schedule was first established. 
Given that these updates have occurred regularly, and that VA's systems 
are built on maintaining this schedule, we believe it would be 
administratively burdensome and likely of little value to change the 
baseline reference from FY 2003. We further note that we received no 
comments recommending a change from this baseline; the commenter simply 
asked for VA's rationale for using this data. We believe this 
methodology has proven effective for providers in Alaska.
    We received a few comments that requested VA clarify or confirm, 
and further expressly revise Sec.  17.4035 to reflect, that VA is 
always the primary payer for care and services that covered veterans 
receive through the VCCP. A related comment also requested VA revise 
Sec.  17.4035 to indicate that VA's payment is payment in full and 
extinguishes a covered veteran's liability. We do not make any changes 
based on this comment but reiterate from the proposed rule that under 
section 1703(j), VA shall recover or collect reasonable charges for 
such care or services from a health plan contract described in section 
1729 in accordance with such section. These provisions of law establish 
VA's role as the primary payer. We further note that VA will seek to 
ensure that the contracts or agreements VA enters into with eligible 
entities and providers will include terms that limit their ability to 
seek payment from a veteran when VA has made any payment for care or 
services furnished to that veteran on VA's behalf. There is no need for 
regulatory language to ensure that covered veterans do not face 
additional liability (other than applicable copayments) for using the 
VCCP.
    Lastly, we received one comment that urged VA to adopt value-based 
reimbursement models, particularly for mental health care, as permitted 
under section 1703(i). This comment further stated that the ability of 
VA to use value-based models should encourage VA's development of 
innovative payment models, including bundled payment for certain 
episodes of care. We do not make any changes based on this comment. 
Again, the contract or agreement will set forth the terms of payment, 
which could include the use of value-based models. To the extent such 
value-based models could result in payment that exceeds the limitation 
set forth in Sec.  17.4035(a), VA has the option of utilizing the 
exception in Sec.  17.4035(d) when applicable to permit the use of such 
models.
    We are making minor changes to this section to reflect the 
promulgation of regulations implementing the Veterans Care Agreement 
authority in section 1703A. Specifically, we are replacing the 
reference to section 1703A of this title and referring instead to 
Sec. Sec.  17.4100 through 17.4135, as these regulations were added to 
the Code of Federal Regulations through a separate VA rulemaking 
published on May 14, 2019 (RIN 2900-AQ45, see 84 FR 21668).

Sec.  17.4040, Access Standards

    We received over 18,000 comments related to the substantive 
provisions of the access standards in Sec.  17.4040 as proposed. For 
the sake of clarity, we have divided the discussion below into three 
main sections. The first section will address the general concerns in 
comments that are related to both the average drive time and wait time 
standards as set forth in Sec.  17.4040 as proposed. The next section 
will address more specific substantive issues related to the average 
drive time standards, and the last section will address more specific 
substantive issues related to the wait-time standards. We also clarify 
that a majority of these comments were duplicated form responses, and 
we address the access standard issues as jointly raised below.

Access Standards Generally

    We received comments that generally opposed both the drive-time and 
wait time access standards as proposed, based primarily on assertions 
that the access standards were arbitrary because they were not 
realistic, feasible, or sustainable, and VA did not conduct enough 
research of all existing access models to properly propose its own 
access standards. Some of these comments further asserted that VA 
should have delayed proposal of access standards until more research or 
analysis could have been completed (to include VA waiting on the 
anticipated results of the market area assessments required by section 
7330C(a) as added by section 106 of the MISSION Act, and not before 
conducting pilot testing as needed).
    Regarding the assertions in comments that the access standards as 
proposed by VA were arbitrary, we reiterate from the proposed rule that 
the drive-time standards were derived from specific analyses that 
showed trends of 30-minute drive times for primary care and 60-minute 
drive times for specialty care in TRICARE, State Medicaid plans, State 
insurance departments, and commercial health plans. For instance, 
TRICARE Prime (the Department of Defense's most comprehensive managed 
care plan, uses a 30-minute drive time for primary care and a 60-minute 
drive time for specialty care for non-active duty beneficiaries. VA 
also assessed both the Medicaid Plans and other primary insurance plans 
of 14 States, and found a majority of those States have a 30-minute 
travel time standard for primary care, and a 60-90-minute travel time 
standard for specialty care under State Medicaid plans and 45-60 minute 
travel time standards for other primary State insurance plans. VA 
determined that it would be reasonable to fall in line with these other 
network expectations throughout the industry. VA further used the 
results of its access standards analysis to develop and model several 
options using VA's Enrollee Health Care Projection Model (EHCPM). VA's 
EHCPM allowed VA to consider best practices in the industry in its 
development of access standards as well as the financial impact of 
various access standard scenarios. After considering this information 
from analyses of similar drive times in other health care plans as well 
as from VA's EHCPM, VA determined that its access standards should 
reflect an average drive time-based criterion that considers the care 
or services needed in relation to the veteran's residence, which is a 
similar approach as TRICARE Prime related to travel standards (opting 
to use average driving time versus mileage). Similarly, the wait time 
standards were derived from research of non-VA network expectations 
throughout the industry, and they fell within the range of appointment 
wait-time standards found in other government organizations, State 
programs, and commercial entities (e.g., 7-28 days for primary care and 
15-30 days for specialty care). Further, the proposed wait-time 
standards are achievable in most VA facilities and are consistent with 
capabilities identified in the private sector. On average, VA national 
wait times in March 2019 for new appointments (e.g., the first 
appointment in a new episode of care versus a subsequent appointment in 
the continuation of an existing episode of care) was approximately 20.6 
days for primary care, 10.8 days for mental health care, and 22.4 days 
for specialty care. These wait times have decreased since the December 
2018 reporting period included in the proposed rule. The proposed wait-
time standard of 20

[[Page 26296]]

days for primary care and mental health, for example, is both in line 
with other similar industry standards and is a manageable goal for 
access to VA care. We do not make changes based on these comments, as 
we believe VA's access standards as proposed were based on reasoned 
research and analysis and are therefore not arbitrary.
    Regarding the assertions in comments that VA should have delayed 
proposal of its access standards until more research or analysis could 
have been completed (to include waiting for VA's market area 
assessments and potential pilot testing to conclude), VA was unwilling 
to engage in such delay as we believe it would have delayed 
implementation of access standards well beyond the statutory deadline 
of June 6, 2019. Pilot testing is an extensive process, which would 
have required the results of the summary market area assessments, which 
themselves were not completed at the time of publication of the 
proposed rule.
    We received a few comments that opposed the access standards 
generally because of VA's designation of nearly all hospital care, 
medical services, and extended care services available under its 
medical benefits package. According to the comments, VA's designation 
of so many services to have an applicable access standard was contrary 
to Congressional intent. According to these comments, Congress only 
intended for VA to designate a few types of care or services, and a 
designation of more care and services creates a risk of decreased 
funding of VA's direct provision of care. Particularly, one comment 
stated that VA's impact analysis for the proposed rule indicated that 
VA will consider the performance of its facilities on wait time access 
standards when making resource allocation decisions and inquired if 
funding or resources would be withheld from a facility if it did not 
meet the designated access standards. We do not make changes based on 
these comments. We acknowledge that VA did consider during the 
development process of the legislation that would become the MISSION 
Act that only a limited number of care or services might ultimately be 
designated as having access standards, VA proposed instead to designate 
a majority of the care and services available under its medical 
benefits package. VA's broader designation of most care or services 
maximizes the choice of covered veterans and prevents veterans from 
having to navigate a bifurcated system where more limited care and 
services would be available under the access standard eligibility than 
under any other eligibility criterion for VCCP. Designation of access 
standards for a majority of VA care and services makes administration 
of the VCCP simpler for VA for this same reason and ensures better 
coordination of care. VA's designation of access standards for a 
majority of its care and services, however, does not force veterans 
into the community to receive care. We reiterate from the discussion at 
the beginning of this final rule that section 1703(d)(3), as regulated 
at Sec.  17.4020(a), requires that eligible covered veterans must still 
elect to receive care and services through the VCCP. We clarify that 
VA's statement from the impact analysis for the proposed rule, as 
referenced in one of the comments, is not a statement of intent to 
withhold resources or funding per se if a facility is not meeting 
access standards. It is a statement that VA must consider use of its 
services when considering allocation of its resources, which could 
include investment into facilities that require assistance to meet 
access standards. Regarding the question of Congressional intent more 
specifically, we do not read any limitation in 38 U.S.C. 1703 or 1703B 
regarding the number of designated access standards; these statutes 
provide broad authority to the Secretary to make these determinations 
and do not constrain his authority in the ways described in the 
comments.
    We received comments that opposed the access standards generally 
because it was unclear whether they would be applied to non-VA 
providers, with some comments further requesting that VA make non-VA 
provider participation in VCCP contingent upon compliance with the same 
standards VA adopts for its direct delivery of care and services. 
Essentially, these comments asserted that unless care available under 
the VCCP could meet (or exceed) VA's access standards, it should not be 
accessible to covered veterans because it would not be providing care 
that could be received sooner or closer than VA could provide. We do 
not make changes to Sec.  17.4040 as proposed based on these comments. 
We first reiterate from the section of this final rule that discusses 
eligible entities and providers that VA will endeavor to ensure that 
community providers are able to comply with the applicable access 
standards established by VA. Such access standards for non-VA 
providers, however, will be used to measure network adequacy to ensure 
that covered veterans who elect to receive care through the VCCP are 
generally getting timely care that is near to their residence. VA will 
not strictly apply its access standards to eligible entities or 
providers as a factor to determine their eligibility to furnish 
hospital care, medical services, or extended care services furnished 
the VCCP. Although we understand the rationale offered in the comments 
that assert VA should strictly apply its access standards to non-VA 
providers, the concept of access standards for determining VCCP 
eligibility is fundamentally different than the concept of access to 
care and services in the private sector. VA must ensure its access 
standards establish a consistent mechanism to provide the option of 
choice in the community to the covered veteran if VA cannot meet those 
standards. In the private sector, access standards are a mechanism to 
measure performance and network capacity, not eligibility. As we have 
said before, no covered veteran eligible to receive community care is 
required to seek care in the community. The veteran could elect to 
receive care from VA or could inquire about seeking care in the 
community and change his or her mind if the community options are not 
convenient (in terms of distance or scheduling availability). As VA 
gains more experience with VCCP, we anticipate our systems will be able 
to provide information to veterans and providers regarding community 
locations and wait-times so that veterans can make informed decisions 
that work for them. We also reiterate from the section of this final 
rule that discusses eligible entities and providers that we agree with 
a comment that stated that VA should not apply its access standards to 
eligible entities and providers for purposes of eligibility as this 
could amount to preferred treatment of veteran patients over non-
veteran patients and could discourage eligible entities and providers 
from participating in the VCCP.
    We received comments that opposed the access standards generally 
because the comments asserted that not having different (presumably, 
longer drive time or wait time) standards for specialized VA care or 
for VA's foundational services could erode patient volume necessary to 
sustain such care and services at VA, and that VA should take a more 
refined approach to distinguishing access for such services to ensure 
the quality of care and veteran satisfaction is maintained. A related 
comment more specifically urged VA to ensure that care and services to 
treat spinal cord injury be excluded from any designated access 
standard, to ensure that such care may only be provided by VA. We do 
not make changes based on these comments.
    We reiterate from an earlier discussion in the purpose and scope

[[Page 26297]]

section of this final rule that expanding access to care and services 
in the community does not equate with forcing veterans into the 
community to receive care; covered veterans must still elect to receive 
care in the community if eligible under VA's access standards. We agree 
with the comments that it is critical for VA to maintain focus on all 
care and services it directly provides to veterans, and we reiterate 
from the proposed rule that VA will continue to sharpen its focus on 
directly providing those services that are most important to the 
coordination and management of a veteran's overall medical and health 
needs, including continued examination of whether its designated access 
standards should be revised with future rulemakings to account for 
specialized areas of VA expertise.
    We received a few comments that requested clarification of why VA 
did not designate a particular access standard for VA foundational 
services, and one comment further seemed to assert that lack of such 
designation meant that these services were not covered under the VCCP. 
We do not make changes based on these comments but clarify that the 
designated access standards cover all forms of hospital care, medical 
services, and extended care services, with the exception of 
institutional extended care services (this exception is discussed 
further below).
    We received one comment that requested VA either revise Sec.  
17.4040 to add an access standard for institutional extended care 
service (e.g. nursing home care) or provide a more robust rationale 
than provided in the proposed rule for why institutional extended care 
was not included within VA's designated access standards. We do not 
make changes based on this comment but do provide additional rationale 
as requested by the comment. Institutional extended care such as 
nursing home care is simply not apt to be measured in terms of access 
in the same manner as other care and services that, generally speaking, 
are more standardized and available in the community. For example, the 
law in each State controls admission factors for Medicaid-participating 
nursing homes, which introduces too many variables to provide relative 
comparisons to VA nursing home admissions. As another example, 
Medicaid-participating nursing home facilities in the community 
generally admit patients on a first-come, first-served basis, and 
maintains waiting lists for admission. When a bed is vacant, facilities 
consult the wait list to determine who is next on the list to be 
admitted, but it is not an accurate reflection of when any patient will 
be admitted, primarily because many people on the wait list are not yet 
in need of nursing home care or they have been placed in another 
facility. In addition, a State's regulations could control when a 
patient may be admitted under circumstances beyond first-come, first-
served--the most common example is admission to a nursing home facility 
directly from a hospital due to medical need. People being admitted 
directly from a hospital level of care may be seen as having a greater 
need before anyone on a wait list. Some States also have rules 
concerning placing only patients of the same gender together in each 
room, or rules permitting admission preference in cases requiring 
intervention by the Department of Human Services or Adult Protective 
Services (or similar agency). We cannot provide a full survey of all 
State laws that may control or influence Medicaid-participating nursing 
home facilities in the community, and it may be that these nursing 
homes also create special admission rules to receive Medicare-eligible 
individuals who are in need of acute rehabilitation (for instance, for 
a stay not to exceed 20 days). We reiterate that there are many 
variables for comparison to admission to VA nursing home facilities 
that make assignment of a designated access standard impracticable, as 
it would not reflect VA's relative ability or inability to directly 
provide nursing home care.
    We received one comment that requested VA revise Sec.  17.4040 to 
add an access standard specifically for mental health care and services 
that would be deemed to be needed immediately, as similar to any access 
standard that VA might apply for emergency care or same-day 
appointments. We do not make changes based on this comment. We will 
discuss more fully in the section of the rule below that addresses wait 
times specifically, but should any care or service under a wait time 
access standard be deemed necessary for a covered veteran prior to 
reaching the ending date of the applicable wait time standard under 
Sec.  17.4040(a)(1)(ii) and (a)(2)(ii), then the best medical interest 
eligibility criterion under Sec.  17.4010(a)(5) would enable a covered 
veteran to be seen for such care or services through the VCCP, assuming 
criteria under Sec.  17.4010(a)(5) were met. We further note that 
emergent mental health care is available from VA on a same-day basis, 
and VA's urgent care benefit under Sec.  17.4600 (section 1725A) should 
also make some services available on an expedient basis.
    We received one comment that requested VA clarify the interaction 
between the average drive time and wait time standards, as both Sec.  
17.4040(a)(1)(i) and (a)(2)(i) indicate that the standards are 
considered together to determine whether they are met (these regulatory 
clauses indicate that the drive time is considered as well as the wait 
time). The comment more specifically asserted that the average drive 
time and wait time should be independently assessed (the regulatory 
clauses should not use the term and as a connector, but rather a term 
such as either), to prevent scenarios where (in the case of the primary 
care standard) a facility that can provide the care or services may be 
more than 30 minutes away, but a covered veteran would not quality for 
VCCP because that facility can offer the care or services within 20 
days. We do not make changes based on this comment but do clarify that 
the average drive time is an independent qualifier and the wait time is 
not. The structure of the regulatory clauses in Sec.  17.4040(a)(1)(i) 
and (a)(2)(i) qualifies instances where a VA facility that can offer 
the care or services may be within the average 30 minute driving time 
(in the case of the comment's primary care example), but still not able 
to provide the care within 20 days--in such cases, a covered veteran 
would be eligible to elect to use the VCCP. However, if a VA facility 
that can offer the care or services needed is not within 30 minutes 
average drive time (in this example), then the covered veteran would 
qualify for VCCP without any assessment of how long it would take a 
facility further away to provide the needed care or services. The wait 
time cannot be an independent qualifier because there must be a context 
within which to apply the wait time--otherwise, the wait time could be 
applied to any VA facility that could provide the care or services 
needed regardless of the average drive time from the covered veteran's 
residence. We believe that the regulation addresses the commenters 
concern: VA must be able to furnish care within the average drive time 
and the wait time standard. If VA cannot meet both conditions, or in 
other words if it fails either condition, the covered veteran would be 
eligible to elect to receive community care.
    The proposed rule stated that if VA is able to furnish a covered 
veteran with care or services through telehealth, and the veteran 
accepts the use of this modality for care, VA would determine that it 
was able to furnish such care or services in a manner that complies 
with designated access standards. We received one comment that urged VA 
to ensure that the option for the veteran to have face-to-face care 
would be maintained if the veteran did not choose the telehealth 
modality. We do not make

[[Page 26298]]

changes based on this comment. As stated in the preamble of the 
proposed rule, VA will not require a veteran accept the use of 
telehealth for the purpose of meeting VA's designated access standards.
    Lastly, we received a few comments that requested clarification of 
how VA will apply the access standards for homeless Veterans without a 
residence. We do not make changes based on these comments but clarify 
that homeless veterans may currently provide an address to VA that is 
recorded in the Veterans Health Information Systems and Technology 
Architecture; this address is used for other VHA benefits and may be 
applied to veterans seeking to participate in VCCP as well. For 
example, any homeless veteran who is residing in a place supported by a 
Department of Housing and Urban Development-VA Supportive Housing 
voucher can list that address, and any veteran using one of our 
community-based programs like the Homeless Grant and Per Diem or Health 
Care for Homeless Veterans programs can supply the address of the 
service provider. Covered veterans that do not have a residence may be 
assessed under other eligibility criteria in Sec.  17.4010(a)(1) 
through (3) and (5) and (6), to receive care or services through the 
VCCP.

Average Drive Time Standards

    We first address comments similar to those discussed above 
regarding the access standards generally, where commenters suggested 
that VA should apply its average drive time standards to the locations 
of eligible entities and providers from which covered veterans might 
elect to receive care through the VCCP, to ensure such non-VA care 
would not be further away from a veteran's residence than VA care. 
Another comment urged VA to track zip codes of where non-VA care was 
provided through the VCCP, to ensure care was received at the nearest 
facility. We do not make changes based on these comments. We reiterate 
from the discussion above that the access standards VA will establish 
for eligible entities and providers will be used to monitor network 
adequacy and will not be used as a limitation on a covered veteran's 
eligibility to receive care and services through the VCCP. VA must 
ensure its access standards establish a consistent mechanism to provide 
the option of choice in the community to the covered veteran if the VA 
cannot meet those standards. In the private sector, however, access 
standards such as average drive times are a mechanism to measure 
performance and network capacity, not eligibility. We also restate from 
discussion earlier in this final rule that VA will use Sec.  
17.4030(c)(1) and (3) to assess whether a non-VA provider is 
accessible. By considering the length of time a veteran would have to 
wait to receive hospital care or medical services from a non-VA entity 
or provider under Sec.  17.4030(c)(1), VA can ensure that veterans 
receive care as quickly as possible. If a veteran selects a non-VA 
provider who cannot see the veteran for several months, VA would 
probably determine that provider was inaccessible, and could then 
provide the veteran with other options of non-VA providers to 
potentially schedule an appointment sooner. By considering the distance 
between the covered veteran's residence and the non-VA provider under 
Sec.  17.4030(c)(3), VA can ensure that veterans receive care closer to 
their residence. If a veteran resides in New York and selects a 
provider in California (to receive care in California when they 
otherwise would not be residing in California at the time of the 
appointment), VA would probably determine that provider was 
inaccessible, and could then provide the veteran with other options of 
non-VA providers that would be closer to their residence at the 
expected time of the appointment. In either scenario (distance or time 
for an appointment), VA's decision regarding accessibility is not pre-
determined; these will be case-by-case decisions.
    We received some comments that asserted VA should not use an 
average drive time standard but instead should continue to use a 
mileage-based distance standard, with certain of the comments 
additionally calling for new mileage standards (one comment advocated a 
new standard of 20 miles for vision-related care or services 
specifically, while other comments advocated new standards of 30 or 35 
miles without specifying particular care or services). We do not make 
changes based on these comments. We reiterate from the proposed rule 
that a mileage-based access standard can be a poor indicator of actual 
conditions that affect travel to receive care and services, as such a 
standard does not recognize the inherent variation of driving speeds in 
rural versus urban areas (as traffic levels and speed limits typically 
allow rural residents to travel farther, faster than urban residents). 
Also, covered veterans may benefit from a drive-time standard as 
opposed to a mileage-based standard, such as the case with veterans in 
mountainous areas where it can take significantly longer than 30 
minutes (or even 60 minutes) to travel 40 miles. We believe that use of 
an average drive-time criterion versus a mileage standard will provide 
a more consistent and equitable standard of access for all covered 
veterans.
    We received other comments that urged VA to adopt different average 
drive time standards than the 30 minutes and 60 minutes in Sec.  
17.4040(a)(1)(i) and (a)(2)(i) as proposed, respectively. Multiple 
comments advocated for an average drive time standard of 40 minutes for 
specialty care, 30 minutes for all services, 60 minutes for all 
services, or that the standards in Sec.  17.4040(a)(1)(i) and (a)(2)(i) 
should be flipped, where 60 minutes would apply to primary care and 
mental health and 30 minutes would apply to specialty care. 
Particularly, the comments that advocated flipping the 30-minute and 
60-minute average drive time standards stated that specialty care is 
arguably more urgently needed than primary care, or that travel to 
receive specialty care is more burdensome, and therefore the lesser 
timeframe of 30 minutes should be applicable to specialty care. We do 
not make changes to Sec.  17.4040(a)(1)(i) or (a)(2)(i) based on these 
comments.
    We reiterate from the proposed rule and the expanded discussion 
earlier in this final rule that the average drive-time standards are 
derived from specific analyses that showed trends of 30-minute drive 
times for primary care and 60-minute drive times for specialty care in 
TRICARE, State Medicaid plans, State insurance departments, and 
commercial health plans. We further clarify that the different drive-
time standards for primary care versus specialty care particularly are 
not intended to reflect the relative importance of one type of care 
versus the other, but rather the relative availability of one type of 
care versus the other, as specialty care tends to be generally less 
available than primary care and therefore requires longer travel times 
to reach on average. Nearly all individuals in a geographic area 
require primary care at some point, typically several times per year. 
But only a subset of these same individuals may require specialty care, 
and not likely with the same frequency. We believe distribution of 
health care resources follows the basic premise outlined above, to 
result in specialty care generally being less widely geographically 
dispersed, particularly considering that such specialty services often 
require specialized facilities and equipment that are difficult and 
costly to replicate. For these reasons, we believe it is widely 
understood that patients often times will need to travel

[[Page 26299]]

a bit farther for specialty care than primary care.
    We received multiple comments related to how VA will calculate 
average drive times under Sec.  17.4040(b) as proposed. Many of these 
comments asserted that there were too many variables related to actual 
drive time (e.g., road or weather conditions, congestion or traffic) 
for VA's calculations to be accurate if it used a strict average of 
drive times throughout a day (or week, or other defined timeframe) 
versus using a predictive system that is related to the time of 
appointment. While some of these comments urged VA to adopt new 
definitions or clarifications to assist with calculating average drive 
times (e.g., defining the term hazardous weather in Sec.  
17.4010(a)(5)(vii)(A)), other comments suggested that, without 
disclosing proprietary information related to the geographic system 
software VA will use, VA's calculations should consider how factors 
change throughout a day, particularly traffic patterns. More 
specifically, a few comments urged that any drive time calculation VA 
uses must consider peak drive times to account for routine spikes in 
traffic. We do not make changes to Sec.  17.4040(b) as proposed based 
on these comments. We believe that it is more veteran-centric to 
maintain the operational flexibility to refine and improve VA's 
calculations in response to experience, feedback, and changing real-
world conditions, rather than to detail in regulation a specific 
methodology or considerations that could constrain VA's ability to 
improve the calculation of average drive time in the future.
    We first note that further definition of terms in Sec.  
17.4010(a)(5)(vii)(A), as requested in one comment, does not have any 
bearing on eligibility determinations under Sec.  17.4040(b) as 
proposed (we also believe that terms to characterize an unusual or 
excessive burden in Sec.  17.4010(a)(5)(vii)(A) are sufficient as 
proposed). We address the comments that requested clarification on how 
VA will calculate average drive times with other comments regarding 
VA's administration of its community care programs in the portion of 
this final rule that discusses miscellaneous comments.
    We received some comments that requested VA consider use of non-
personal vehicles (e.g., public transit) when calculating applicable 
average drive times. We do not make changes based on these comments. We 
reiterate from the proposed rule that calculating average drive time 
based on the use of a personal vehicle applies to many of the veterans 
we serve, and that it would be too difficult and potentially costly to 
consistently implement and operationalize a system that considers the 
variety of transportation options potentially available to an 
individual veteran. In major metropolitan areas, a veteran could travel 
by personal car, bus, or rail, and each of these would have different 
travel times.

Wait Time Standards

    We first address comments that opposed the 20-day or 28-day wait 
time standards based on the timeframes themselves. Some comments stated 
that these timeframes were too long for covered veterans to wait to be 
seen when they may have conditions or concerns requiring more immediate 
attention, with a few comments further urging VA to adopt different 
standards (for instance, 14 days or less for all services, 20 days for 
all services, or 14 days for primary care and 20 days for specialty 
care). Other related comments asserted that the wait time standards in 
Sec.  17.4040(a)(1)(ii) and (a)(2)(ii) should be flipped, where 28 days 
would apply to primary care and mental health and 20 days would apply 
to specialty care, because specialty care is arguably more urgently 
needed than primary care. We do not make changes based on these 
comments. To address the concern that 20 or 28 days as applicable is 
too long to wait to address more immediate health care needs, we 
clarify that these are timeframes by which VA can assess whether it can 
provide care and services under normal and not urgent or emergent 
circumstances. Should any care or service with an applicable wait time 
be deemed necessary for a covered veteran prior to reaching the ending 
date of such wait time standard, then the best medical interest 
eligibility criterion under Sec.  17.4010(a)(5) might enable a covered 
veteran to be seen for such care or services through the VCCP (assuming 
criteria under Sec.  17.4010(a)(5) were met). To address the comments 
concerning the 20-day and 28-day wait times being flipped, we reiterate 
from the section above that access standards for primary care versus 
specialty care are not intended to reflect the relative importance of 
one type of care versus the other, but rather the relative availability 
of one type of care versus the other, as specialty tends to be 
generally less available than primary care and therefore can requires 
longer wait times on average.
    The preamble of the proposed rule introduced the concept that VA 
preliminarily had established a goal of reducing the wait times for 
primary care and mental health services from 20 days in Sec.  
17.4040(a)(1)(ii) as proposed to 14 days no sooner than June 2020. 
Although this reduction from 20 days to 14 days was not put forth in 
proposed regulation text, we invited and received comments on this 
issue, the vast majority of which recommended that VA should not wait 
until 2020 to reduce such wait times to 14 days. Conversely, we 
received a few comments that VA should not reduce the primary care or 
mental health wait times to 14 days prematurely, and that VA should 
focus on meeting the 20-day standard first. More specifically, one 
comment asserted that VA should wait for the results of VA's market 
area assessments to drive any potential future reductions in wait 
times. We do not make changes based on these comments, but reiterate 
from the proposed rule that presently, a 14-day wait-time standard 
would be difficult for VA to implement due to the current availability 
of providers and variability in appointment wait-times across VA 
facilities. However, VA will pursue additional rulemaking should we 
proceed with the goal to reduce the primary care and mental health wait 
time standards from 20 days to 14 days.
    We received comments that did not necessarily oppose the wait-time 
access standards, but that requested clarification of how VA would 
determine whether care was primary care, specialty care, or mental 
health care. Some related comments more specifically asserted that 
certain care should fall within the 20-day standard for primary care, 
for instance, most women's health care services, physical therapy, and 
traumatic brain injury. Another comment advocated that certain case 
management services associated with assisting homeless veterans should 
be considered specialty care. We do not make changes based on these 
comments. We believe in a majority of cases that it will be clear what 
standard should be applied to what care. Because we believe these 
comments are primarily concerned that certain services will not be 
given the benefit of relatively shorter wait times, we reiterate that 
if care is determined to be needed prior to reaching the ending date of 
an applicable wait time, then the best medical interest eligibility 
criterion under Sec.  17.4010(a)(5) would enable a covered veteran to 
be seen for such care or services through the VCCP (assuming criteria 
under Sec.  17.4010(a)(5) were met). We further advise that VA is 
experienced in determining whether care is primary care or specialty 
care, as VA uses this distinction to assess copayments under Sec.  
17.108.
    We received one comment that requested VA revise Sec.  
17.4040(a)(1)(ii)

[[Page 26300]]

and (a)(2)(ii) to establish that the start date to begin counting any 
applicable wait time should be the date that the services are 
clinically indicated to be needed, and not the date of request for an 
appointment. We do not make changes based on this comment. By shifting 
the start of the wait time standard under the VCCP from the clinically 
indicated date to the date of request, VA can optimize consistency in 
decisions of eligibility that employ the wait time access standard. 
Consistency in decisions regarding eligibility is desirable because it 
assists VA to accurately forecast the use of VCCP under this standard, 
and because it supports parity in eligibility determinations to support 
a sense of fairness in veteran experience in using the VCCP. 
Additionally, the option for the covered veteran to choose a later date 
in consultation with a provider still permits for the wait time 
standards to be counted starting on a date that is later than the date 
of request, which could encompass a starting date when the services 
would be considered clinically indicated.

Miscellaneous Comments

    We received many comments that did not directly relate to any 
regulatory sections from the proposed rule, but that expressed concerns 
with VA's administration of its community care programs and further 
suggested improvements. Although we do not make changes to the proposed 
rule based on these comments because they are beyond the scope of the 
proposed rule or address issues that would best be handled through 
policy or contracting mechanisms, we summarize the comments below by 
grouping them by topic and indicate where we provide clarifications.

Transition From the Veterans Choice Program

    We received comments related to VA's transition from the Veterans 
Choice Program (Choice) to the Veterans Community Care Program (VCCP), 
which primarily requested clarification of administrative issues 
related to VA's contracting efforts to ensure that there was a smooth 
transition to the VCCP. The largest administrative issue raised in 
comments was how VA would mitigate gaps in coverage in transitioning to 
the VCCP, where specific requests for clarifications included: Whether 
VA anticipated delays in implementation due to any contract protests; 
whether the same services offered under Choice contracts would be 
offered under VCCP contracts (and more specifically, Veterans Care 
Agreements); whether providers under Choice provider agreements would 
be grandfathered into VCCP contracts or agreements (essentially asking 
whether Choice providers would be considered VCCP providers 
automatically until VCCP contracts can be finalized); and whether VA 
would issue guidance on transition from Choice to VCCP, to include more 
information on ``other arrangements'' under which care can be provided. 
VA has modified one of its community care contracts that provided 
coverage under the Veterans Choice Program to engage the same third-
party administrator (TPA) (TriWest Healthcare Alliance) to provide for 
expanded nationwide coverage for the VCCP until VA's Community Care 
Network (CCN) contracts have established a fully functional network of 
providers. We believe this nationwide engagement of the same TPA from 
the Veterans Choice Program to administer the VCCP, until the CCN 
contracts are in place and the networks required by those contracts are 
fully operational, will allay many concerns regarding transition to the 
VCCP, as the administrative procedures should be familiar to those 
providers that participated under the Veterans Choice Program.
    A related comment asserted that VA should standardize its contracts 
and contracting processes nationally, to avoid what the comment 
asserted was regional variation in contracts and contracting processes 
that are present in other non-VCCP community care programs. This 
comment also urged VA to make such contracts formed under section 
1703(h) publicly available, and that any rules contained in such 
contracts that seek to control the actions of eligible entities and 
providers should be developed by notice-and-comment rulemaking so that 
stakeholders (that are not the entities or providers) can provide input 
on the impact of such rules on entities or providers. We do not make 
any changes based on these comments. Any VA decisions regarding 
contracting processes and standardization are implemented through 
separate processes and actions, potentially including policies and 
acquisition regulations. Separately, contracts within the meaning of 
section 1703(h), and solicitations leading to such contracts, are and 
will be subject to the existing, comprehensive legal framework 
governing public disclosure of information relating to such 
procurements and contracts. Any VA decisions regarding public 
disclosures of information relating to such procurements and contracts 
will be made in accordance with those laws. Finally, VA does not commit 
to establishing all contractual requirements through notice-and-comment 
rulemaking, and does not commit to establishing only national 
contracts. Such commitments are incompatible with the legal and 
operational framework of Federal procurement, including the 
flexibility, discretion, and independence that are often integral to 
the process of defining requirements.

Veterans Need More Information To Inform Their Election To Receive Care 
Through the VCCP

    We received comments that indicated VA was not providing enough 
information to veterans to enable them to make informed choices of 
whether to elect to receive community care. These comments primarily 
stated that comparisons between VA care and community care were not 
apparent at the point veterans might elect to receive community care, 
and that veterans needed access to more timely comparisons between: VA 
and non-VA wait times; distances from a veteran's residences to VA and 
non-VA providers; and relative competency of VA and non-VA providers 
(particularly, for care to treat conditions such as posttraumatic 
stress disorder and traumatic brain injury). Some of these comments 
suggested specific improvements (such as ensuring non-VA provider 
directories are updated and available to veterans), where other 
comments requested VA clarify how relevant comparative information will 
be provided to veterans to elect to receive community care as required 
by section 1703B(b). VA understands the desire for more information so 
covered veterans can make informed choices regarding providers. VA has 
included community provider information in the VA facility locator on 
www.va.gov that shows both VA and community providers. This will allow 
covered veterans to see the locations of specific community providers 
in relation to VA providers. As VA begins to implement the new CCN 
contracts, appointment availability timeframes will also be available 
for the VA to share with covered veterans to assist them in making a 
decision on providers.

Implementation of VA's Average Drive Time Standard

    VA received comments that requested clarification on how VA will 
calculate average drive times. We note that some detailed information 
regarding average drive time calculations and algorithms is 
proprietary. At a general level, VA's

[[Page 26301]]

calculation of average drive times between the veteran's residence and 
an applicable VA facility will take into consideration a variety of 
factors, including: Distance, route options, and speed limits. In its 
current configuration, VA's geographic information system tool bases 
these calculations on historical data, rather than real-time traffic 
information. As VA gains more experience with VCCP and receives 
feedback from veterans regarding their experiences with the program, we 
anticipate refining this tool and our systems to improve our 
consideration of actual conditions that affect travel to receive care 
and services and to provide more information to veterans regarding 
calculation of average drive times.
    We received a comment that urged VA to publish a report every six 
months regarding the outcome of VA using an average drive time standard 
versus a mileage standard, to include a total number of individuals 
qualifying under the average drive time standards. We do not make 
changes to the regulation based on this comment, and do not commit to 
publishing such a report, although we note that VA will monitor use of 
the VCCP care and services by covered veterans, to include use that 
qualifies under the designated access standards. VA will report 
regularly to Congress on utilization of the VCCP, as required by 
section 1703(m).

Claims Adjudication and Payments

    We received comments related to administrative procedures for VA's 
processing of claims for payments for hospital care, medical services, 
or extended care services furnished through the VCCP. These comments 
essentially stated that claims and payment procedures need to be clear 
and minimally burdensome and that VA must ensure it applies the prompt 
payment provisions that are required under section 1703D to ensure 
providers are paid on timely (particularly, as noted by one comment, to 
include provisions that cover interest on overdue claims). Some of 
these comments further urged VA to confirm its plans to publish future 
regulations to implement the prompt payment provisions in section 
1703D, with some requests that VA provide a more specific timeframe in 
which it expects to promulgate such regulations. Another comment urged 
that VA should consider establishing a maximum timeframe to pay 
electronic claims within 14 days, and to pay paper claims within 30 
days, when VA does promulgate regulations to implement section 1703D. 
Lastly, multiple comments generally asserted that appeals procedures 
for adjudication of claims or payment-related disputes should be 
comprehensive and timely.
    We first confirm that VA will be undertaking future rulemaking to 
implement the prompt pay provisions of section 1703D, which will 
include provisions to implement the requirements under section 1703D 
(such as establishing timeframes in which to pay clean electronic and 
clean paper claims, addressing interest on overdue claims, and appeals 
procedures). We cannot provide an exact timeframe in which VA can 
expect such regulations to be promulgated, and we will not discuss 
specifics here of any policy development regarding such regulations, 
although we generally note that two-stage rulemaking can typically 
require 18-24 months to complete. We received some related comments 
regarding claims and payments processing that asserted the compensation 
options for eligible entities or providers are difficult to understand 
and that providers are not paid timely as a result, but these comments 
urged VA to publish a comprehensive policy for eligible entities and 
providers to resolve misunderstandings. We clarify that the 
compensation options are part of the contract between VA and the TPA. 
VA will work with the TPAs to ensure they have appropriate information 
regarding claims submission and processing that will assist in 
preventing untimely payments. Section 122 of the MISSION Act requires 
VA to develop and implement a training program for employees and 
contractors on how to administer non-Department health care programs. 
As required by section 122 of the VA MISSION Act, VA is providing 
training to the TPAs regarding administrative processes.
    One comment indicated that on July 31, 2018, the Centers for 
Medicare and Medicaid Services (CMS) published the Prospective Payment 
System (PPS) and Consolidated Billing for Skilled Nursing Facilities 
(SNF) Final Rule for Fiscal Year (FY) 2019. The comment further noted 
that in this rule, CMS finalized a proposal to replace the current 
Skilled Nursing Facility Prospective Payment System Resource 
Utilization Group (RUGs) payment model with a new per-diem payment 
system called the Patient-Driven Payment Model (PDPM) beginning on 
October 1, 2019. This comment ultimately urged that CMS and VA 
communicate how the PDPM reimbursement structures and VA's 
reimbursement structures will work together. Because reimbursement is 
included in the contracts with the TPAs, VA will ensure that the 
payment methodology used is clearly explained to the contractors so 
that eligible entities and providers understand how VA's benchmark of 
using applicable Medicare rates may shift with the publication or 
annual or major Medicare rate shifts.

Improve Procedures and Practices of VA's Third-Party Administrators

    We received many comments that identified both general and specific 
administrative improvements that could be made by the third-party 
administrators (TPA) with whom VA contracts to generally administer the 
VCCP. Most of these comments identified the desired administrative 
improvements by providing examples of TPA deficiencies as experienced 
under Choice, but we address these comments here in relation to the 
VCCP. The most general concerns expressed in these comments related to 
a lack of timeliness, accuracy, and follow-up regarding TPA practices 
in referring and scheduling care in the community. These comments 
generally urged that improvements were needed to streamline scheduling, 
where specific suggestions to achieve improvements ranged from 
simplifying communications systems (e.g., consolidating various call 
center numbers to create a one-call/one-stop experience for covered 
veterans to interact with TPAs) to creating more comprehensive guidance 
on how TPAs obtain timely eligibility determinations and authorizations 
from VA. VA is generally responsible for scheduling appointments for 
veterans in most markets and will work with its TPAs to improve 
administrative processes to assist in streamlining scheduling in other 
cases, particularly where VA can improve its processes to verify 
eligibility and communicate authorizations of care.
    Other comments indicated a need for clearer policies and processes 
to ensure that non-VA providers and covered veterans understand what 
care is and is not authorized, and a few comments deemed that VA's 
review of authorizations for care were not timely or consistent. One 
comment further urged VA to adopt a more robust and transparent process 
to ensure each authorization for care includes: A binding determination 
regarding the scope of issues that might be raised for coverage and 
payment purposes; a plan to transfer a covered veteran back to VA after 
conclusion of the treatment authorized; prompt decisions to grant or 
deny authorizations; and a statement that clarifies non-VA providers 
will receive payment for services provided due to error on VA's part or 
on the

[[Page 26302]]

covered veteran's part. Much of what is specifically raised by this 
comment is contemplated in the contracts VA forms with TPAs or directly 
with eligible entities and providers to furnish care and services 
through the VCCP, and VA will work to improve consistency in its 
authorization processes. Related comments urged VA to develop guidance 
to address oversight of its TPAs that would include metrics to measure 
effective communications between the TPAs and eligible entities or 
providers, and a process for such entities or providers to contact VA 
for dispute resolution regarding TPA performance. We similarly respond 
that much of what these comments raise is contemplated in the contracts 
VA forms with eligible entities and providers, and VA will work to 
ensure appropriate monitoring of TPAs as identified in the contract.
    We received some comments related to VA's processes in 
credentialing non-VA entities or providers to find them eligible to 
furnish care and services through the VCCP. Specifically, these 
comments urged VA to reduce potential duplication of credentialing 
processes between VA and the TPAs with whom VA contracts to administer 
community care. One comment further urged VA to maintain its 
recognition of a current administrative process adopted by some non-VA 
hospitals (particularly, academic medical centers) to have the TPA 
delegate provider credentialing to the non-VA hospital, where such 
hospital agrees to meet the credentialing requirements through their 
own in-house process and be audited as necessary. We clarify that the 
credentialing process to determine whether non-VA entities or providers 
are eligible to participate in the VCCP will be conducted by the TPAs 
with whom VA contracts and not by VA, so we do not believe there is 
cause to be concerned about duplicative credentialing processes. For 
this same reason, VA cannot respond to clarify how a TPA's 
credentialing processes may be conducted, but VA would support any TPA 
processes to continue or establish credentialing that reduces delays, 
so long as VA's credentialing requirements are met.
    Some comments urged improvements to administrative processes for 
particular groups of covered veterans. For instance, with regard to 
pregnant veterans and veterans in need of maternity care, one comment 
urged VA to: Establish a more streamlined process for prior 
authorizations for pregnant veterans (to include priority access to 
treatment of substance use disorder); require authorization by VA of 
required episodes of care no more than seven days after pregnancy is 
diagnosed; make Maternity Care Coordinators (MCC) a full-time position 
in VA facilities as needed; and ensure that pregnant veterans receiving 
non-VA care are put in contact with MCCs to assist navigating non-VA 
care. One commenter urged VA to require eligible entities and providers 
in the community to use VA's universal housing instability screener to 
ensure that homeless veterans who may elect to receive care in the 
community are aware of VA's homeless assistance programs. We appreciate 
these comments and agree it is important to maintain awareness if 
certain veteran populations may require particular VA assistance to 
navigate community care or assistance to access VA resources that do 
not necessarily pertain to healthcare matters. VA will ensure it 
maintains its focus to assist in care coordination for all veterans who 
elect to receive care in the community.
    Lastly, we received a few comments that stated that VA should not 
use TPAs generally, as this creates an unnecessary layer of 
administrative bureaucracy. A few comments indicated more specifically 
that VA should not use a specific TPA with which it has previously 
contracted to provide care in the community, and instead should use 
veteran contractors. Currently, VA's utilization of TPAs to perform 
certain functions is important to ensuring VA optimizes its provision 
of care in the community. For instance, use of a TPA provides VA an 
accredited network of providers as well as claims processing that is 
standardized in the health care industry, which are two areas that VA 
does not have the required infrastructure or expertise to administer 
directly at this time. With regard to the comments that VA should not 
use a specific TPA and should use veteran contractors instead, we note 
that VA is subject to, and abides by, the comprehensive set of laws 
governing Federal procurement. Those laws do not permit indiscriminate 
awarding of contracts to groups of individuals, as we believe is 
suggested by the commenter.

Information Technology and Information Sharing

    We received multiple comments that expressed concerns regarding 
VA's information technology (IT) infrastructure and capabilities to 
enable the level of information sharing required to ensure smooth 
administration of the VCCP. The general thrust of these comments 
asserted that VA's IT systems, particularly its electronic medical 
record system, required improvements to ensure the timely and seamless 
exchange of clinical information between VA and non-VA sources. More 
specifically, some commenters urged VA to acquire and use a single 
electronic system that would be accessible 24 hours a day/7 days a week 
by non-VA entities and providers, and that could be integrated with 
VA's electronic medical record to assist with confirming VCCP 
eligibility and otherwise to communicate all clinical and 
administrative information necessary to participate in VCCP (e.g. 
eligible entities and providers would submit and receive referrals or 
authorizations, medical records, claims forms, etc.). Other comments 
further urged VA, whether it would adopt new IT systems or modify its 
existing systems, to allow non-VA providers (specifically the large 
academic medical centers and faculty practice plans) to designate 
multiple staff members who would have access to those systems. We 
clarify that VA has been steadily working on improvements for sharing 
of medical information. VA participates in standardized health 
information exchanges in the health care industry, and this summer is 
deploying a commercial referral management system, Healthshare Referral 
Manager, which will be used to share authorizations with community 
providers and exchange medical information. VA has already deployed 
community viewer, which allows community providers secure, web-based 
access to medical information and VirtruPro, which allows secure, 
encrypted email exchange between the VA and community providers. VA 
also encourages all providers to submit claims electronically using 
industry standard transactions to ensure prompt payment of claims.
    We received one comment that urged VA to modernize its IT systems 
as an attempt to move away from the administration of paper claims and 
eventually require the submission of electronic claims. VA will 
consider addressing the submission of paper claims and electronic 
claims in any future rulemaking to implement the prompt payment 
provisions of section 1703D. VA is also undertaking efforts to 
modernize its IT systems for claims processing. As noted above, VA 
encourages all providers to submit claims electronically using 
industry-standard transactions. VA is additionally deploying an 
industry-standard claims processing system this year that includes 
auto-adjudication and will improve timeliness of claims processing.
    We received one comment that expressed concerns that VA's decision

[[Page 26303]]

support tool to determine whether a covered veteran was eligible to 
participate in VCCP (particularly with regard to eligibility based on 
VA's designated access standards), will not be ready for timely 
implementation on June 6, 2019. VA expects the tool will be ready by 
June 6, 2019. This tool will assist with eligibility determinations by 
displaying, documenting, and storing relevant information related to 
eligibility determinations in a standardized and reportable manner. In 
the event that the tool was not at full functionality for any reason, 
VA can also look to other systems to gather and assess information 
related to eligibility (such as VA's Computerized Patient Record 
System) as a contingency.

Emergency Care

    We received comments related to the administrative practices of VA 
in reviewing and approving emergency care. These comments generally 
relayed concerns that covered veterans were unduly subject to cost 
liabilities for emergency treatment because the administrative 
requirements VA imposes were unclear or inefficient and lead to VA 
failing to approve or pay for the emergency care in a timely manner. 
These comments suggested multiple improvements, primarily comprised of 
requests for VA to: Increase education for providers and covered 
veterans (to ensure the nearest VA facility is well known for purposes 
of the 72-hour notification, who is the appropriate VA official at that 
facility to receive the notice, etc.); and establish a single, 
nationwide system (such as an online portal and national call center) 
where all emergency care matters under the VCCP would be administered. 
The administrative rules in place regarding notice to the nearest local 
VA facility are required to ensure that emergency care can be 
authorized and claims can be considered under all available authorities 
for emergency care. The local facility is in the best position (and in 
many ways, the only position) to actually assess criteria related to 
the appropriateness of authorizing emergency care (for instance, 
whether a patient could be transferred to a nearby VA facility). VA 
will work to improve education and messaging to non-VA providers and 
veterans concerning how and where to submit timely notice of use of 
emergency care to assist with timely approvals.

Prescriptions

    We received comments regarding VA's administrative practices in 
reviewing and approving prescriptions issued by non-VA providers. These 
comments primarily voiced concerns that VA's practices were unnecessary 
or unduly burdensome and either created delays in getting prescriptions 
filled, or created unnecessary administrative costs for VA. Some 
comments further suggested alternatives to VA's current practice of VA 
providers reviewing and approving prescriptions from non-VA providers, 
such as allowing non-VA providers to fill prescriptions directly with 
VA pharmacies through the TPA that VA utilizes to administer its 
community care programs. VA's current practices of reviewing and 
approving prescriptions issued by non-VA providers are in place to 
ensure appropriate prescription monitoring, care coordination, and cost 
and quality controls. VA does not believe that this review creates 
unnecessary administrative costs for VA, but VA can work to improve its 
internal review and approval processes to reduce or eliminate delays in 
getting non-VA prescriptions filled.

Eligible Entities and Providers

    We received comments related to VA's practices in disseminating 
information to non-VA providers who could potentially participate in 
VCCP, for the purpose of maintaining and increasing provider 
participation. These comments generally called for improvements in VA's 
communicating such information to providers and suggested improvements 
ranged from offering a webinar specifically on the implementation of 
contracts or agreements (particularly for Veterans Care Agreements 
authorized under section 1703A and Sec. Sec.  17.4100 through 17.4135), 
to developing or improving policies related to approving providers to 
participate in the VCCP. VA will examine its current outreach and 
education efforts in maintaining and increasing (as needed) provider 
participation in the VCCP and will be open to all options of 
communicating with non-VA providers to ensure that provider 
requirements to participate in the VCCP are well understood.
    We received one comment that urged VA to clarify whether non-VA 
providers who would furnish care and services under the VCCP are 
considered Federal contractors or subcontractors to be subject to 
Federal contractor requirements, including, but not limited to 
Executive Order 11246, as amended, Section 503 of the Rehabilitation 
Act of 1973, as amended, the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974, as amended, and the McNamara-O'Hara Service 
Contract Act of 1965, as amended, and any other Federal contractor 
obligations, such as those related to Federal minimum wage and sick 
leave. This comment urged that non-VA providers participating in the 
VCCP should not be considered Federal contractors or subcontractors to 
avoid application of Federal contractor obligations imposed under the 
jurisdiction of the Department of Labor's Office of Federal Contract 
Compliance Programs (OFCCP). We clarify that section 107 of the MISSION 
Act states that Directive 2014-01 of the Office of Federal Contract 
Compliance Programs (OFCCP) of the Department of Labor (effective as of 
May 7, 2014) applies to any entity entering into an agreement under 
section 1703A or section 1745 of title 38 in the same manner as such 
Directive applies to subcontractors under the TRICARE program for the 
duration of the moratorium established by that Directive. VA has 
consulted with the Department of Labor regarding this provision, and we 
understand that OFFCP intended, through a Directive 2018-02, to extend 
the moratorium from OFCCP's jurisdiction concerning Executive Order 
11246, section 503 of the Rehabilitation Act, and the Vietnam Era 
Veterans' Readjustment Assistance Act to cover health care providers in 
all VA programs under which VA has statutory authority to provide care 
to veterans by contracting with private, non-VA providers. 
Specifically, we understand OFCCP to consider the following categories 
of providers to be within the scope of the 2018 Directive's moratorium: 
Independent contractors operating in VA facilities, contract community-
based outpatient clinics, and providers who are part of a network and 
furnishing services pursuant to a contract between VA and the network 
administrator, contracts and agreements directly between VA and 
providers (i.e., Federal Acquisition Regulation (FAR)-based contracts 
subject to all procurement laws, Choice provider agreements, Veterans 
Care Agreements, and agreements with State Veterans Homes). We further 
note that the Department of Labor is working to establish the 
Directive's moratorium through a regulation, and we appreciate their 
efforts in that effort.

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 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 detrimental impact on veterans' health care.

[[Page 26304]]

    Section 143 of the MISSION Act of 2018 amended section 101(p) of 
the Veterans Access, Choice, and Accountability Act of 2014 (Pub. L. 
113-146; 38 U.S.C. 1701 note, as amended, hereafter referred to as the 
Choice Act) to state that VA may not use the Choice Act to furnish care 
and service after June 6, 2019. As a result, on that date, VA will no 
longer be able to use the Veterans Choice Program to furnish care or 
services in the community. Section 101 of the MISSION Act will amend 38 
U.S.C. 1703 to permit VA to administer a new Veterans Community Care 
Program, which will replace the Veterans Choice Program. However, 
section 1703 will not be so amended until VA promulgates regulations 
under section 101(c) of the VA MISSION Act of 2018 by its own terms, 
which is the function of this final rule. Therefore, if this final rule 
is not effective on June 6, 2019, VA would not have the Choice Act 
authority or the MISSION Act authority under which to administer care 
in the community; the only authority VA would have to administer such 
care would section 1703 as it exists unamended by the MISSION Act.
    The provisions of section 1703 as unamended by the MISSION Act, as 
well as its implementing regulations at 38 CFR 17.52, do not provide a 
sufficient legal basis to meet the requirements of section 101 of the 
MISSION Act in areas such as eligibility, appeals, and payment rates, 
nor do they provide for the same levels of community care that have 
been received by veterans under the Veterans Choice Program through 
June 6, 2019.
    If this final rule to implement the new Veterans Community Care 
Program, and to replace Veterans Choice Program, is not effective on 
June 6, 2019, the approximately 2 million veterans who have received 
care under the Veterans Choice Program (for over 46 million 
appointments since inception) will be forced to find alternative 
pathways to care. These veterans will either be: (1) Absorbed by 
existing VA facilities, (2) sent out into the community under VA's more 
limited section 1703 authority, or (3) might forego care all together. 
As indicated below, all of these pathways would result in delays in 
care, lack of continuity in care, and absence of care that would be 
significantly detrimental to veteran's health.
    Absorbing the Veterans Choice Program's share of care for 2 million 
veterans into existing VA facilities would significantly strain VA's 
resources and cause problems impacting veterans' health. It would 
interrupt continuity of care, pose significant delays for scheduling 
care, and would lead to long wait times. The VA system is simply not 
capable of accommodating this amount of care without causing delays in 
access to care.
    Some care, therefore, would need to remain in the community. But 
with neither the Veterans Choice Program nor the new Veterans Community 
Care Program in place, VA would have no universally applicable 
eligibility criteria for community care. Without such national, clear, 
and consistent criteria in place, individual VA facilities or VA Health 
Care Systems may adopt local criteria that do not support standardized 
decisions regarding when veterans may be eligible to receive VA 
community care, and VA could return to the same non-standardized 
community care environment that led to the wait-time issues in 2014, 
such as when access barriers adversely affected the quality of primary 
and specialty care at the Phoenix VA Health Care System. After the 
wait-time issues of the Phoenix VA Health Care System were made public, 
VA's Office of Inspector General examined the electronic health records 
and other information from more than 3,000 veteran patients and 
identified 28 instances of clinically significant delays in care 
associated with access to care or patient scheduling. The Office of the 
Inspector General (OIG) found that the majority of the veteran patients 
reviewed were on official or unofficial wait lists and experienced 
delays accessing primary care--in some cases, pressing clinical issues 
required specialty care, which some patients were already receiving 
through VA or non-VA providers. OIG further found that some veterans on 
unofficial wait lists were at risk of never obtaining their requested 
or necessary appointments. As OIG stated, inappropriate scheduling 
practices were a nationwide systemic problem. OIG identified multiple 
types of scheduling practices in use that did not comply with VHA's 
scheduling policy. We believe these deviations from scheduling policy 
were due in part to limited and inconsistently applied criteria by 
which veterans may receive community care.
    By way of example, section 1703 as unamended by the MISSION Act 
provides VA authority to contract for hospital care and medical 
services when VA facilities are not capable of furnishing economical 
care due to geographic inaccessibility or are not capable of furnishing 
care. However, our implementing regulations at 38 CFR 17.52 generally 
establish eligibility criteria based on type of care needed and whether 
or not the veteran is service-connected, and do not provide additional 
clarity on what geographic inaccessibility means. Nothing in Sec.  
17.52 or section 1703 as unamended by the MISSION Act approximates the 
specific eligibility criteria available under the Veterans Choice 
Program or contemplated under the MISSION Act related to distance-
related access criteria. As such, the criterion of geographic 
inaccessibility under section 1703 as unamended by the MISSION Act can 
be interpreted many ways, leading to inequitable eligibility decisions 
for community care and bad scheduling practices based on such 
decisions.
    A delay in the effective date of this rule would result in a lack 
of consistently applicable community care criteria, which would create 
significant disruptions for even a limited period of time such as sixty 
days. Continuity of care could particularly be disrupted, and patient 
safety and health would be in jeopardy, for any veterans who would not 
be authorized to seek care from a health care provider that has been 
treating them for years under the Veterans Choice Program. This could 
be particularly harmful for veterans who have mental health conditions 
and are only comfortable seeking treatment from their current mental 
health care professional.
    Such veterans may opt to simply forego care from a different 
provider for a delay of sixty days until this rule is effective. 
Similarly, a sixty-day delayed effective date could increase confusion 
for even for new veteran users, new and existing providers in the 
community, as well as employees at VA, if VA were to go from 
administering community care under Veterans Choice Program criteria, to 
then under significantly more limited criteria of section 1703 as 
unamended by the MISSION Act for a very limited period of time, and 
then to implementation of what are now publicly vetted and broader 
criteria under the new Veterans Community Care Program. To avoid this 
confusion, some veterans may simply choose not to receive care until 
the new Veterans Community Care Program is in place, or providers may 
simply not participate, or even VA may be at risk for administering 
community care incorrectly. This places veterans' health and safety at 
risk, particularly for continuous and periodic care or treatment that 
may be occurring under the Veterans Choice Program through June 6, 
2019, and that must typically occur on an immediate and stringent 
schedule upon diagnosis (such as treatment for cancer, or maternity 
care).
    Accordingly, the Secretary finds it would be contrary to the public 
interest

[[Page 26305]]

to delay the effective date of AQ46 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.

Effect of Rulemaking

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

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that 
VA consider the impact of paperwork and other information collection 
burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may 
not collect or sponsor the collection of information, nor may it impose 
an information collection requirement unless it displays a currently 
valid Office of Management and Budget (OMB) control number. See also 5 
CFR 1320.8(b)(2)(vi).
    This final rule will amend information collection requirements 
currently approved under control number 2900-0823 and will impose new 
collections of information requirements and burden. Notice of OMB 
approval for this information collection will be published in the 
Federal Register.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. Although some eligible entities or providers that will furnish 
care and services to veterans under this rule might be considered small 
entities, there will be no significant adverse economic impact. To the 
extent there is any impact on small entities and given the lapse in 
statutory authority for the Veterans Choice Program, it will be a 
potential increase in business due to proposed expanded eligibility for 
non-VA care. While this rulemaking defines payment rates and eligible 
entities and providers, it does so in a way that is consistent with 
VA's current authorities. We note that separate regulations at 38 CFR 
17.4100 through 17.4135, authorizes VA to enter into agreements with 
eligible providers, many of whom will likely be small businesses. We 
also do not believe there will be a significant economic impact on any 
insurance companies that might be considered small businesses, as 
claims would only be submitted for care that would otherwise have been 
received whether such care was authorized under VCCP; the need for the 
care itself is not generated by the VCCP, merely furnished under the 
VCCP versus another program. Therefore, pursuant to 5 U.S.C. 605(b), 
the Secretary has determined that an initial and a final regulatory 
flexibility analysis are not needed.

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 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. The total estimated budget impact (both transfers and costs) is 
projected to be $346.3 million in FY 2019 and $17.9 billion over a 5-
year period. Transfers are estimated to be $15.6 billion over a 5-year 
period and costs are estimated to be $2.2 billion over a 5-year period. 
These transfer impacts are from the federal government to eligible 
Veterans. The cost impacts are administrative fees, claim fees and 
other non-provider payment costs.
    Benefits of the rulemaking will strengthen the access to VA health 
care overall by increasing the choices Veterans have for their health 
care and complementing the increasingly timely, high-quality care 
provided by VA medical facilities. Veterans will continue to have the 
option to choose whether to receive care at a VA medical facility or a 
community provider. Furthermore, the access expansion will allow 
Veterans to receive care in the community through a network of 
providers when VA does not provide the required care or services, wait 
times do not conform with VA access standards, service line does not 
meet VA quality standards, the referring clinician determines it is in 
the best medical interest of the Veteran to receive care or services in 
the community. Additionally, Veterans will be able to access community 
care when the Veteran was eligible to receive care under certain 
grandfathering provisions or VA does not operate a full-service medical 
facility in the State in which the veteran resides.
    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 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 an E.O. 13771 
regulatory action. VA has determined that the net costs are $2.2 
million over a five-year period (FY2019-FY2023) and $429 million per 
year on an ongoing basis discounted at 7 percent relative to year 2016, 
over a perpetual time horizon. Details on the estimated costs of this 
final rule can be found in the rule's economic analysis.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more

[[Page 26306]]

(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.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are as follows: 64.007, Blind 
Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, 
Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 
64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 
64.013, Veterans Prosthetic Appliances; 64.014, Veterans State 
Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, 
Veterans State Hospital Care; 64.018, Sharing Specialized Medical 
Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 
64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless 
Providers Grant and Per Diem Program.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Government contracts, 
Grant programs-health, Grant programs-veterans, Health care, Health 
facilities, Health professions, Health records, Homeless, Medical 
devices, Mental health programs, Nursing homes, Reporting and 
recordkeeping requirements, 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 23, 2019, for publication.

    Dated: May 30, 2019.
Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

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

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by revising the entry 
for Sec.  17.38 and adding entries for Sec. Sec.  17.46, 17.52, 17.55, 
17.56, 17.108, 17.110, and 17.111 and Sec. Sec.  17.4000 through 
17.4040 in numerical order to read in part as follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.

* * * * *
    Section 17.38 is also issued under 38 U.S.C. 1703.
    Section 17.46 is also issued under 38 U.S.C. 1710.
    Section 17.52 is also issued under 38 U.S.C. 1701, 1703, 1710, 
1712, and 3104.
    Section 17.55 is also issued under 38 U.S.C. 513, 1703, and 
1728.
    Section 17.56 is also issued under 38 U.S.C. 1703 and 1728.
    Section 17.108 is also issued under 38 U.S.C. 501, 1703, 1710, 
1725A, and 1730A.
    Section 17.110 is also issued under 38 U.S.C. 501, 1703, 1710, 
1720D, 1722A, and 1730A.
    Section 17.111 is also issued under 38 U.S.C. 101(28), 501, 
1701(7), 1703, 1710, 1710B, 1720B, 1720D, and 1722A.
* * * * *
    Sections 17.4000 through 17.4040 also issued under 38 U.S.C. 
1703, 1703B, and 1703C.
* * * * *


Sec.  17.38   [Amended]

0
2. Amend Sec.  17.38(a)(1)(iv) by removing ``Sec. Sec.  17.52(a)(3), 
17.53, 17.54, 17.120-132'' and adding in its place ``Sec.  17.52(a)(3), 
Sec.  17.53, Sec.  17.54, Sec. Sec.  17.120 through 17.132, or 
Sec. Sec.  17.4000 through 17.4040.''


Sec.  17.46   [Amended]

0
3. Amend Sec.  17.46:
0
a. In paragraph (a) introductory text by adding the phrase ``on or 
before June 6, 2019,'' after the phrase ``In furnishing hospital 
care''; and
0
b. Removing the authority citations at the ends of paragraphs (a) and 
(b).

0
4. Amend Sec.  17.52 by removing the authority citations at the ends of 
paragraphs (a)(1) through (10) and paragraph (b) and adding paragraph 
(c) to read as follows:


Sec.  17.52   Hospital care and medical services in non-VA facilities.

* * * * *
    (c) The provisions of this section shall not apply to care 
furnished by VA after June 6, 2019.


Sec.  17.54   [Removed and Reserved]

0
5. Remove and reserve Sec.  17.54.

0
6. Amend Sec.  17.55 by revising the introductory text and removing the 
authority citation at the end of the section to read as follows:


Sec.  17.55   Payment for authorized public or private hospital care.

    Except as otherwise provided in this section, payment for public or 
private hospital care furnished on or before June 6, 2019, under 38 
U.S.C. 1703 and Sec.  17.52, or at any time under 38 U.S.C. 1728 and 
Sec. Sec.  17.120 and 17.128 or under 38 U.S.C. 1787 and Sec.  17.410, 
shall be based on a prospective payment system similar to that used in 
the Medicare program for paying for similar inpatient hospital services 
in the community. Payment shall be made using the Centers for Medicare 
& Medicaid Services (CMS) PRICER for each diagnosis-related group (DRG) 
applicable to the episode of care.
* * * * *

0
7. Amend Sec.  17.56 by adding paragraph (e) and removing the authority 
citation at the end of the section to read as follows:


Sec.  17.56   VA payment for inpatient and outpatient health care 
professional services at non-departmental facilities and other medical 
charges associated with non-VA outpatient care.

* * * * *
    (e) Except for payments for care furnished under 38 U.S.C. 1725 and 
Sec.  17.1005, under 38 U.S.C. 1728 and Sec. Sec.  17.120 and 17.128, 
or under 38 U.S.C. 1787 and Sec.  17.410, the provisions of this 
section shall not apply to care furnished by VA after June 6, 2019, or 
care furnished pursuant to an agreement authorized by 38 U.S.C. 1703A.

0
8. Amend Sec.  17.108:
0
a. In paragraph (b)(4):
0
i. By removing ``Sec.  17.1500 through 17.1540'' and adding in its 
place ``Sec. Sec.  17.1500 through 17.1540, or the Veterans Community 
Care Program under Sec. Sec.  17.4000 through 17.4040''; and
0
ii. Removing ``paragraphs (b)(2) or (b)(3)'' and adding in its place 
``paragraph (b)(2) or (3)'';
0
b. In paragraph (c)(4), by removing ``Sec.  17.1500 through 17.1540'' 
and adding in its place ``Sec. Sec.  17.1500 through 17.1540, or the 
Veterans Community Care Program under Sec. Sec.  17.4000 through 
17.4040''; and
0
c. Removing the authority citation at the end of the section.


Sec.  17.110   [Amended]

0
9. Amend Sec.  17.110:
0
a. In paragraph (b)(4):
0
i. By removing ``Sec.  17.1500 through 17.1540'' and adding in its 
place ``Sec. Sec.  17.1500 through 17.1540, or the Veterans Community 
Care Program under Sec. Sec.  17.4000 through 17.4040''; and
0
ii. Removing ``paragraphs (b)(1)(i) through (b)(1)(iii)'' and adding in 
its place ``paragraphs (b)(1)(i) through (iii)''; and
0
b. Removing the authority citation at the end of the section.

[[Page 26307]]

Sec.  17.111   [Amended]

0
10. Amend Sec.  17.111:
0
a. In paragraph (b)(3):
0
i. By removing ``Sec.  17.1500 through 17.1540'' and adding in its 
place ``Sec. Sec.  17.1500 through 17.1540, as well as extended care 
services furnished through the Veterans Community Care Program under 
Sec. Sec.  17.4000 through 17.4040''; and
0
ii. Removing ``paragraphs (b)(1) or (b)(2)'' and adding in its place 
``paragraph (b)(1) or (2)''; and
0
b. Removing the authority citation at the end of the section.


Sec.  17.1004   [Amended]

0
11. Amend Sec.  17.1004 in paragraph (b) introductory text by removing 
the phrase ``HCFA 1500'' and adding in its place ``CMS 1500'' and 
removing the authority citation at the end of the section.

0
12. Add an undesignated center heading and Sec. Sec.  17.4000 through 
17.4040 to read as follows:

Veterans Community Care Program

Sec.
17.4000 Purpose and scope.
17.4005 Definitions.
17.4010 Veteran eligibility.
17.4015 Designated VA medical service lines.
17.4020 Authorized non-VA care.
17.4025 Effect on other provisions.
17.4030 Eligible entities and providers.
17.4035 Payment rates.
17.4040 Designated access standards.

Veterans Community Care Program


Sec.  17.4000   Purpose and scope.

    (a) Purpose. Sections 17.4000 through 17.4040 implement the 
Veterans Community Care Program, authorized by 38 U.S.C. 1703.
    (b) Scope. The Veterans Community Care Program establishes when a 
covered veteran may elect to have VA authorize an episode of care for 
hospital care, medical services, or extended care services from an 
eligible entity or provider. Sections 17.4000 through 17.4040 do not 
affect eligibility for non-VA care under sections 1724, 1725, 1725A, or 
1728 of title 38, United States Code.


Sec.  17.4005   Definitions.

    For purposes of the Veterans Community Care Program under 
Sec. Sec.  17.4000 through 17.4040:
    Appointment means an authorized and scheduled encounter, including 
telehealth and same-day encounters, with a health care provider for the 
delivery of hospital care, medical services, or extended care services.
    Covered veteran means a veteran enrolled under the system of 
patient enrollment in Sec.  17.36, or a veteran who otherwise meets the 
criteria to receive care and services notwithstanding his or her 
failure to enroll in Sec.  17.37(a) through (c).
    Eligible entity or provider means a health care entity or provider 
that meets the requirements of Sec.  17.4030.
    Episode of care means a necessary course of treatment, including 
follow-up appointments and ancillary and specialty services, which 
lasts no longer than 1 calendar year.
    Extended care services include the same services as described in 38 
U.S.C. 1710B(a).
    Full-service VA medical facility means a VA medical facility that 
provides hospital care, emergency medical services, and surgical care 
and having a surgical complexity designation of at least ``standard.''
    Note 1 to the definition of ``full-service VA medical facility'': 
VA maintains a website with a list of the facilities that have been 
designated with at least a surgical complexity of ``standard,'' which 
can be accessed on VA's website.
    Hospital care has the same meaning as defined in 38 U.S.C. 1701(5).
    Medical services have the same meaning as defined in 38 U.S.C. 
1701(6).
    Other health-care plan contract means an insurance policy or 
contract, medical or hospital service agreement, membership or 
subscription contract, or similar arrangement not administered by the 
Secretary of Veterans Affairs, under which health services for 
individuals are provided or the expenses of such services are paid; and 
does not include any such policy, contract, agreement, or similar 
arrangement pursuant to title XVIII or XIX of the Social Security Act 
(42 U.S.C. 1395 et seq.) or chapter 55 of title 10, United States Code.
    Residence means a legal residence or personal domicile, even if 
such residence is seasonal. A covered veteran may maintain more than 
one residence but may only have one residence at a time. If a covered 
veteran lives in more than one location during a year, the covered 
veteran's residence is the residence or domicile where they are staying 
at the time they want to receive hospital care, medical services, or 
extended care services through the Veterans Community Care Program. A 
post office box or other non-residential point of delivery does not 
constitute a residence.
    Schedule means identifying and confirming a date, time, location, 
and entity or health care provider for an appointment in advance of 
such appointment.
    Note 1 to the definition of ``schedule'': A VA telehealth encounter 
and a same-day care encounter are considered to be scheduled even if 
such an encounter is conducted on an ad hoc basis.
    VA facility means a VA facility that offers hospital care, medical 
services, or extended care services.
    VA medical service line means a specific medical service or set of 
services delivered in a VA facility.


Sec.  17.4010   Veteran eligibility.

    Section 1703(d) of title 38, U.S.C., establishes the conditions 
under which, at the election of the veteran and subject to the 
availability of appropriations, VA must furnish care in the community 
through eligible entities and providers. VA has regulated these 
conditions under paragraphs (a)(1) through (5) of this section. If VA 
determines that a covered veteran meets at least one or more of the 
conditions in paragraph (a) of this section and has provided 
information required by paragraphs (b) and (c) of this section, the 
covered veteran may elect to receive authorized non-VA care under Sec.  
17.4020.
    (a) The covered veteran requires hospital care, medical services, 
or extended care services and:
    (1) No VA facility offers the hospital care, medical services, or 
extended care services the veteran requires.
    (2) VA does not operate a full-service VA medical facility in the 
State in which the veteran resides.
    (3) The veteran was eligible to receive care and services from an 
eligible entity or provider under section 101(b)(2)(B) of the Veterans 
Access, Choice, and Accountability Act of 2014 (Pub. L. 113-146, sec. 
101, as amended; 38 U.S.C. 1701 note) as of June 5, 2018, and continues 
to reside in a location that would qualify the veteran under that 
provision, and:
    (i) Resides in Alaska, Montana, North Dakota, South Dakota, or 
Wyoming; or
    (ii) Does not reside in one of the States described in paragraph 
(a)(3)(i) of this section, but received care or services under title 38 
U.S.C. between June 6, 2017, and June 6, 2018, and is seeking care 
before June 6, 2020.
    (4) Has contacted an authorized VA official to request the care or 
services the veteran requires, but VA has determined it is not able to 
furnish such care or services in a manner that complies with designated 
access standards established in Sec.  17.4040.
    (5) The veteran and the veteran's referring clinician determine it 
is in the best medical interest of the veteran, for the purpose of 
achieving improved

[[Page 26308]]

clinical outcomes, to access the care or services the veteran requires 
from an eligible entity or provider, based on one or more of the 
following factors, as applicable:
    (i) The distance between the veteran and the facility or facilities 
that could provide the required care or services;
    (ii) The nature of the care or services required by the veteran;
    (iii) The frequency the veteran requires the care or services;
    (iv) The timeliness of available appointments for the required care 
or services;
    (v) The potential for improved continuity of care;
    (vi) The quality of the care provided; or
    (vii) Whether the veteran faces an unusual or excessive burden in 
accessing a VA facility based on consideration of the following:
    (A) Excessive driving distance; geographical challenges, such as 
the presence of a body of water (including moving water and still 
water) or a geologic formation that cannot be crossed by road; or 
environmental factors, such as roads that are not accessible to the 
general public, traffic, or hazardous weather.
    (B) Whether care and services are available from a VA facility that 
is reasonably accessible.
    (C) Whether a medical condition of the veteran affects the ability 
to travel.
    (D) Whether there is a compelling reason the veteran needs to 
receive care and services from a non-VA facility.
    (E) The need for an attendant, which is defined as a person who 
provides required aid and/or physical assistance to the veteran, for a 
veteran to travel to a VA medical facility for hospital care or medical 
services.
    (6) In accordance with Sec.  17.4015, VA has determined that a VA 
medical service line that would furnish the care or services the 
veteran requires is not providing such care or services in a manner 
that complies with VA's standards for quality.
    (b) If the covered veteran changes his or her residence, the 
covered veteran must update VA about the change within 60 days.
    (c) A covered veteran must provide to VA information on any other 
health-care plan contract under which the veteran is covered prior to 
obtaining authorization for care and services the veteran requires. If 
the veteran changes such other health-care plan contract, the veteran 
must update VA about the change within 60 days.
    (d) Review of veteran eligibility determinations. The review of any 
decisions under paragraph (a) of this section are subject to VA's 
clinical appeals process, and such decisions may not be appealed to the 
Board of Veterans' Appeals.


(The information collection is pending Office of Management and Budget 
approval.)


Sec.  17.4015   Designated VA medical service lines.

    (a) VA may identify VA medical service lines that are 
underperforming based on the timeliness of care when compared with the 
same medical service line at other VA facilities and based on data 
related to two or more distinct and appropriate quality measures of 
VA's standards for quality when compared with non-VA medical service 
lines.
    (b) VA will make determinations regarding VA medical service lines 
under this section using data described in paragraph (a) of this 
section, VA standards for quality, and based on factors identified in 
paragraph (e) of this section.
    (c) VA will announce annually any VA medical service lines 
identified under paragraph (a) of this section by publishing a document 
in the Federal Register. Such document will identify and describe the 
standards for quality VA used to inform the determination under 
paragraph (a), as well as how the data described in paragraph (a) and 
factors identified in paragraph (e) of this section were used to make 
the determinations. Such document will also identify limitations, if 
any, concerning when and where covered veterans can receive qualifying 
care and services at their election in the community based on this 
section. Such limitations may include a defined timeframe, a defined 
geographic area, and a defined scope of services. VA will also take 
reasonable steps to provide direct notice to covered veterans affected 
under this section.
    (d) VA will identify no more than 3 VA medical services lines in a 
single VA facility under this section, and no more than 36 VA medical 
service lines nationally under this section.
    (e) In determining whether a VA medical service line should be 
identified under paragraph (a) of this section, and to comply with 
paragraph (c) of this section, VA will consider:
    (1) Whether the differences between performance of individual VA 
medical service lines, and between performance of VA medical service 
lines and non-VA medical service lines, is clinically significant.
    (2) Likelihood and ease of remediation of the VA medical service 
line within a short timeframe.
    (3) Recent trends concerning the VA medical service line or non-VA 
medical service line.
    (4) The number of covered veterans served by the medical service 
line or that could be affected by the designation.
    (5) The potential impact on patient outcomes.
    (6) The effect that designating one VA medical service line would 
have on other VA medical service lines.


Sec.  17.4020   Authorized non-VA care.

    (a) Electing non-VA care. Except as provided for in paragraph (d) 
of this section, a covered veteran eligible for the Veterans Community 
Care Program under Sec.  17.4010 may choose to schedule an appointment 
with a VA health care provider, or have VA authorize the veteran to 
receive an episode of care for hospital care, medical services, or 
extended care services from an eligible entity or provider when VA 
determines such care or services are clinically necessary.
    (b) Selecting an eligible entity or provider. A covered veteran may 
specify a particular eligible entity or provider. If a covered veteran 
does not specify a particular eligible entity or provider, VA will 
refer the veteran to a specific eligible entity or provider.
    (c) Authorizing emergency treatment. This paragraph (c) applies 
only to emergency treatment furnished to a covered veteran by an 
eligible entity or provider when such treatment was not the subject of 
an election by a veteran under paragraph (a) of this section. This 
paragraph (c) does not affect eligibility for, or create any new rules 
or conditions affecting, reimbursement for emergency treatment under 
section 1725 or 1728 of title 38, United States Code.
    (1) Under the conditions set forth in this paragraph (c), VA may 
authorize emergency treatment after it has been furnished to a covered 
veteran. For purposes of this paragraph (c), ``emergency treatment'' 
has the meaning defined in section 1725(f)(1) of title 38, United 
States Code.
    (2) VA may only authorize emergency treatment under this paragraph 
(c) if the covered veteran, someone acting on the covered veteran's 
behalf, or the eligible entity or provider notifies VA within 72-hours 
of such care or services being furnished and VA approves the furnishing 
of such care or services under paragraph (c)(3) of this section.
    (3) VA may approve emergency treatment of a covered veteran under 
this paragraph (c) only if:
    (i) The veteran is receiving emergency treatment from an eligible 
entity or provider.

[[Page 26309]]

    (ii) The notice to VA complies with the provisions of paragraph 
(c)(4) of this section and is submitted within 72 hours of the 
beginning of such treatment.
    (iii) The emergency treatment only includes services covered by 
VA's medical benefits package in Sec.  17.38.
    (4) Notice to VA must:
    (i) Be made to the appropriate VA official at the nearest VA 
facility;
    (ii) Identify the covered veteran; and
    (iii) Identify the eligible entity or provider.
    (d) Organ and bone marrow transplant care. (1) In the case of a 
covered veteran described in paragraph (d)(3) of this section, the 
Secretary will determine whether to authorize an organ or bone marrow 
transplant for the covered veteran through an eligible entity or 
provider.
    (2) The Secretary will make determinations under paragraph (d)(1) 
of this section, and the primary care provider of the veteran will make 
determinations concerning whether there is a medically compelling 
reason to travel outside the region of the Organ Procurement and 
Transplantation Network in which the veteran resides to receive a 
transplant, in consideration of, but not limited to, the following 
factors:
    (i) Specific patient factors.
    (ii) Which facilities meet VA's standards for quality, including 
quality metrics and outcomes, for the required transplant.
    (iii) The travel burden on covered veterans based upon their 
medical conditions and the geographic location of eligible transplant 
centers.
    (iv) The timeliness of transplant center evaluations and 
management.
    (3) This paragraph (d) applies to covered veterans who meet one or 
more conditions of eligibility under Sec.  17.4010(a) and:
    (i) Require an organ or bone marrow transplant as determined by VA 
based upon generally-accepted medical criteria; and
    (ii) Have, in the opinion of the primary care provider of the 
veteran, a medically compelling reason, as determined in consideration 
of the factors described in paragraph (d)(2) of this section, to travel 
outside the region of the Organ Procurement and Transplantation Network 
in which the veteran resides, to receive such transplant.


Sec.  17.4025   Effect on other provisions.

    (a) General. No provision in this section may be construed to alter 
or modify any other provision of law establishing specific eligibility 
criteria for certain hospital care, medical services, or extended care 
services.
    (b) Prescriptions. Notwithstanding any other provision of this 
part, VA will:
    (1) Pay for prescriptions no longer than 14 days written by 
eligible entities or providers for covered 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 an 
urgent or emergent condition.
    (2) Fill prescriptions written by eligible entities or providers 
for covered veterans, including over-the-counter drugs and medical and 
surgical supplies, available under the VA national formulary system.
    (3) Pay for prescriptions written by eligible entities or providers 
for covered veterans that have an immediate need for durable medical 
equipment and medical devices that are required for urgent or emergent 
conditions (e.g., splints, crutches, manual wheelchairs).
    (4) Fill prescriptions written by eligible entities or providers 
for covered veterans for durable medical equipment and medical devices 
that are not required for urgent or emergent conditions.
    (c) Copayments. Covered veterans are liable for a VA copayment for 
care or services furnished under the Veterans Community Care Program, 
if required by Sec.  17.108(b)(4) or (c)(4), Sec.  17.110(b)(4), or 
Sec.  17.111(b)(3).


Sec.  17.4030   Eligible entities and providers.

    To be eligible to furnish care and services under the Veterans 
Community Care Program, entities or providers:
    (a) Must enter into a contract, agreement, or other arrangement to 
furnish care and services under the Veterans Community Care Program 
under Sec. Sec.  17.4000 through 17.4040.
    (b) Must either:
    (1) Not be a part of, or an employee of, VA; or
    (2) If the provider is an employee of VA, not be acting within the 
scope of such employment while providing hospital care, medical 
services, or extended care services through the Veterans Community Care 
Program under Sec. Sec.  17.4000 through 17.4040.
    (c) Must be accessible to the covered veteran. VA will determine 
accessibility by considering the following factors:
    (1) The length of time the covered veteran would have to wait to 
receive hospital care, medical services, or extended care services from 
the entity or provider;
    (2) The qualifications of the entity or provider to furnish the 
hospital care, medical services, or extended care services from the 
entity or provider; and
    (3) The distance between the covered veteran's residence and the 
entity or provider.


Sec.  17.4035   Payment rates.

    The rates paid by VA for hospital care, medical services, or 
extended care services (hereafter referred to as ``services'') 
furnished pursuant to a procurement contract or an agreement authorized 
by Sec. Sec.  17.4100 through 17.4135 will be the rates set forth in 
the terms of such contract or agreement. Such payment rates will comply 
with the following parameters:
    (a) Except as otherwise provided in this section, payment rates 
will not exceed the applicable Medicare fee schedule (including but not 
limited to allowable rates under 42 U.S.C. 1395m) or prospective 
payment system amount (hereafter ``Medicare rate''), if any, for the 
period in which the service was provided (without any changes based on 
the subsequent development of information under Medicare authorities).
    (b) With respect to services furnished in a State with an All-Payer 
Model Agreement under section 1814(b)(3) of the Social Security Act (42 
U.S.C. 1395f(b)(3)) that became effective on or after January 1, 2014, 
the Medicare payment rates under paragraph (a) of this section will be 
calculated based on the payment rates under such agreement.
    (c) Payment rates for services furnished in a highly rural area may 
exceed the limitations set forth in paragraphs (a) and (b) of this 
section. The term ``highly rural area'' means an area located in a 
county that has fewer than seven individuals residing in that county 
per square mile.
    (d) Payment rates may deviate from the parameters set forth in 
paragraphs (a) through (c) of this section when VA determines, based on 
patient needs, market analyses, health care provider qualifications, or 
other factors, that it is not practicable to limit payment for services 
to the rates available under paragraphs (a) through (c).
    (e) Payment rates for services furnished in Alaska are not subject 
to paragraphs (a) through (d) of this section and will be set forth in 
the terms of the procurement contract or agreement authorized by 
Sec. Sec.  17.4100 through 17.4135, pursuant to which such services are 
furnished. If no payment rate is set forth in the terms of such a 
contract or agreement pursuant to which such services are furnished, 
payment rates for services furnished in Alaska will follow the Alaska 
Fee Schedule of the Department of Veterans Affairs.

[[Page 26310]]

Sec.  17.4040   Designated access standards.

    (a) The following access standards have been designated to apply 
for purposes of eligibility determinations to access care in the 
community through the Veterans Community Care Program under Sec.  
17.4010(a)(4).
    (1) Primary care, mental health care, and non-institutional 
extended care services. VA cannot schedule an appointment for the 
covered veteran with a VA health care provider for the required care or 
service:
    (i) Within 30 minutes average driving time of the veteran's 
residence; and
    (ii) Within 20 days of the date of request unless a later date has 
been agreed to by the veteran in consultation with the VA health care 
provider.
    (2) Specialty care. VA cannot schedule an appointment for the 
covered veteran with a VA health care provider for the required care or 
service:
    (i) Within 60 minutes average driving time of the veteran's 
residence; and
    (ii) Within 28 days of the date of request unless a later date has 
been agreed to by the veteran in consultation with the VA health care 
provider.
    (b) For purposes of calculating average driving time from the 
veteran's residence in paragraph (a) of this section, VA will use 
geographic information system software.

[FR Doc. 2019-11575 Filed 6-4-19; 8:45 am]
BILLING CODE 8320-01-P