[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Proposed Rules]
[Pages 58237-58239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22535]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ70


Medical Benefits Package; Chiropractic Services

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise its 
medical regulations to add chiropractic services to the definitions of 
medical services and preventive care. VA would further revise the 
definition of medical services to include rehabilitative services 
consistent with its statutory definition and to reflect changes made in 
other VA medical regulations and in prior legislation not previously 
codified. The proposed amendments would make VA medical regulations 
consistent with current practices, prior changes in law and VA's 
medical regulations, and changes in law made by the Consolidated 
Appropriations Act, 2018. These amendments would not substantively 
change the current administration of medical benefits to veterans.

DATES: Comments must be received on or before December 20, 2021.

ADDRESSES: Comments may be submitted through http://www.Regulations.gov. Comments received will be available at 
regulations.gov for public viewing, inspection, or copies.

FOR FURTHER INFORMATION CONTACT: Anthony Lisi, D.C., Director, Veterans 
Health Administration Chiropractic Service, Rehabilitation and 
Prosthetic Services (10P4R), 810 Vermont Ave. NW, Washington, DC 20420, 
(203) 932-5711, ext. 5341. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Section 1710 of title 38 of the United 
States Code (U.S.C.) requires VA to furnish hospital care and medical 
services which the Secretary determines to be needed for eligible 
veterans. Prior to March 23, 2018, under 38 U.S.C. 1701(6), medical 
services included medical examination and treatment, rehabilitative 
services, surgical services, dental services and appliances, optometric 
and podiatric services, preventive health services, noninstitutional 
extended care services, travel and certain incidental expenses, and 
prosthetic and related items and services. Preventive health services 
were specifically listed as medical services in section 1701(6)(D) 
while rehabilitative services were listed as medical services in the 
introductory text of section 1701(6). Both rehabilitative services and 
preventive health services were further defined in 38 U.S.C. 1701(8) 
and 1701(9), respectively. Rehabilitative services included 
professional, counseling, and guidance services and treatment programs 
necessary to restore the physical, mental, and psychological 
functioning of an ill or disabled person, while preventive health 
services included such services as medical and dental examinations, 
patient health education, mental health preventive services, substance 
abuse prevention measures, certain immunizations, and routine vision 
testing and eye care services.
    On March 23, 2018, the President of the United States signed the 
Consolidated Appropriations Act, 2018, Public Law (Pub. L.) 115-141 
(hereafter ``Appropriations Act''). In section 245 of Division J of the 
Appropriations Act, Congress amended 38 U.S.C. 1701(6) by adding 
chiropractic services to the definition of medical services. Similarly, 
Congress amended the definition of rehabilitative services under 
section 1701(8) to include chiropractic services. Congress also amended 
section 1701(9) by adding chiropractic examinations and services to the 
definition of preventive services under section 1701(9). VA proposes to 
amend title 38 Code of Federal Regulations (CFR) 17.30 and 17.38 to 
conform to these statutory changes and for additional reasons, as set 
forth in more detail in the subsequent discussions.

Section 17.30 Definitions

    VA has incorporated the definitions of medical services and 
preventive services into its medical regulations. Currently, Sec.  
17.30(a) defines the term medical services to include medical 
examination, treatment and rehabilitative services; surgical services; 
dental services and appliances as authorized in Sec. Sec.  17.160 
through 17.166; optometric and podiatric services; (in the case of a 
person otherwise receiving care or services under this chapter) 
preventive health care services set forth in 38 U.S.C. 1701(9); 
noninstitutional extended care services; wheelchairs, artificial limbs, 
trusses and similar appliances; special clothing made necessary by the 
wearing of prosthetic appliances, and such other supplies and services 
as are medically determined to be reasonable and necessary.
    We propose to make several changes to this definition of medical 
services in 38 CFR 17.30(a) to make the regulation easier to read, to 
provide clarification, to conform to the statutory authority (38 U.S.C. 
1701), including amendments made to this authority by the 
Appropriations Act, and to reference other applicable VA medical 
regulations in 38 CFR part 17.
    For clarity and because of other changes we propose to amend Sec.  
17.30 as further explained below. We propose to redesignate current 
paragraphs (a)(2) and (a)(3) as (a)(3) and (a)(4), respectively; 
propose to move the language, medical examination, treatment, and 
rehabilitative services, from paragraph (a) to paragraph (a)(1) and 
revise it; and propose to move the language in current paragraph (a)(1) 
to paragraph (a)(2) and revise it.
    Paragraph (a) would continue to include the heading of medical 
services and would state that the term medical services includes the 
following; after

[[Page 58238]]

which, subparagraphs (1) through (4) would list the definition of 
medical services.
    Revised paragraph (a)(1) would explain that medical services 
include medical examination, treatment, and rehabilitative services (as 
defined in 38 U.S.C. 1701(8)).
    As we do not further define in VA's medical regulations 
rehabilitative services, as used in 38 U.S.C. 1701(8), we propose to 
amend the definition of medical services in 38 CFR 17.30(a)(1) to make 
clear that the term ``rehabilitative services'' as used in these 
regulations is defined in 38 U.S.C. 1701(8). This would be similar to 
how we refer to preventive services in this definition of medical 
services under current Sec.  17.30(a)(1). Individuals could thus refer 
to the term rehabilitative services in 38 U.S.C. 1701(8) to understand 
how we define it for purposes of medical services in part 17.
    Consistent with changes to 38 U.S.C. 1701(6) made by the 
Appropriations Act, we propose to include chiropractic services in 
revised paragraph (a)(2).
    Current paragraph (a)(1) includes a parenthetical before the part 
of the definition that references preventive health care services set 
forth in 38 U.S.C. 1701(9). This parenthetical phrase, (in the case of 
a person otherwise receiving care or services under this chapter), was 
included in current 38 CFR 17.30(a)(1) with respect to preventive 
health care services to be consistent with prior statutory authority. 
However, section 103 of Public Law 104-262 struck the parenthetical 
phrase from the statutory location where it applied to preventive 
health care services and inserted it before wheelchairs. This phrase, 
as included in current Sec.  17.30(a)(1), is now inconsistent with the 
current language of 38 U.S.C. 1701(6)(D) and (9) with respect to 
preventive care. Instead, this parenthetical phrase is included in 
section 1701(6)(F), which states that medical services include the 
following: In the case of a person otherwise receiving care or services 
under this chapter--(i) wheelchairs, artificial limbs, trusses, and 
similar appliances; (ii) special clothing made necessary by the wearing 
of prosthetic appliances; and (iii) such other supplies or services as 
the Secretary determines to be reasonable and necessary. Because we are 
proposing to move and revise the language in current paragraph (a) to 
paragraph (a)(1), we would move the current language in paragraph 
(a)(1) to paragraph (a)(2) and revise it to remove the parenthetical 
with respect to preventive health care services. However, as explained 
in the next paragraph, the parenthetical phrase would not be included 
in the revisions to 38 CFR 17.30(a)(2) related to 38 U.S.C. 1701(6)(F).
    Due to changes we made to VA's medical regulations in part 17, we 
would also amend Sec.  17.30(a)(2) to include items and services as 
authorized in Sec. Sec.  17.3200 through 17.3250. In a final rule 
published on December 28, 2020, we established new regulations on 
eligibility and criteria for the provision to veterans of certain items 
and services as authorized medical services pursuant to 38 U.S.C. 
1701(6)(F) and 38 U.S.C. 1710(a). See 85 FR 84259. As currently 
written, the definition of medical services in Sec.  17.30(a)(1) 
includes wheelchairs, artificial limbs, trusses and similar appliances, 
and such other supplies or services as are medically determined to be 
reasonable and necessary. This language is consistent with the language 
of 38 U.S.C. 1701(6)(F), which is further interpreted and implemented 
in the regulations at 38 CFR 17.3200 through 17.3250. Thus, as we are 
moving and revising this language in revised paragraph (a)(2), we would 
amend the definition of medical services to remove the language 
included in current paragraph (a)(1) that refers to wheelchairs, 
artificial limbs, trusses and similar appliances, and such other 
supplies or services as are medically determined to be reasonable and 
necessary and, in its place, add the items and services authorized by 
regulations at Sec. Sec.  17.3200 through 17.3250. We would not include 
in revised Sec.  17.30(a)(2) the parenthetical phrase discussed in the 
previous paragraph that is currently included in section 1701(6)(F) as 
such language is implemented in the regulations at Sec. Sec.  17.3200 
through 17.3250, thus making it redundant and unnecessary to include 
that phrase in revised Sec.  17.30(a)(2) with respect to items and 
services authorized under Sec. Sec.  17.3200 through 17.3250.
    In the Authority section of 38 CFR part 17, we propose to add a 
citation to 38 U.S.C. 1701 as authority for Sec.  17.30. This change 
would be consistent with the Office of the Federal Register's current 
format for the placement of authority citations in the CFR.

Section 17.38 Medical Benefits Package

    Relatedly, 38 CFR 17.38(a) sets forth the hospital, outpatient, and 
extended care services that constitute the medical benefits package 
(basic care and preventive care) available to eligible veterans. 
Included in the medical benefits package under Sec.  17.38(a)(2) is 
preventive care, which the regulation makes clear is defined in 38 
U.S.C. 1701(9). The regulation further provides examples of what is 
included: Periodic medical exams, health education, including nutrition 
education; maintenance of drug-use profiles, drug monitoring, and drug 
use education; mental health and substance abuse preventive services; 
immunizations against infectious disease; prevention of musculoskeletal 
deformity or other gradually developing disabilities of a metabolic or 
degenerative nature; genetic counseling concerning inheritance of 
genetically determined diseases; routine vision testing and eye-care 
services; periodic reexamination of members of high-risk groups for 
selected diseases and for functional decline of sensory organs, and the 
services to treat these diseases and functional declines.
    To conform with the changes to 38 U.S.C. 1701(9) made by the 
Appropriations Act, we would amend 38 CFR 17.38(a)(2) by adding a new 
paragraph (x) to specifically include chiropractic services as 
preventive care. The term chiropractic services would encompass both 
chiropractic services and examinations. To maximize healthcare outcomes 
for veterans, the type of chiropractic services that would be available 
to eligible veterans as preventive care would be those services that 
are consistent with current evidence-based practices and chiropractic 
training and licensure.
    In addition to the preventive care provided pursuant to 38 CFR 
17.38(a)(2), VA provides basic care under Sec.  17.38(a)(1). Basic care 
includes such care as inpatient and outpatient medical, surgical and 
mental healthcare; inpatient hospital healthcare; prescription drugs; 
and rehabilitative services. While not explicitly stated in Sec.  
17.38(a)(1), VA provides chiropractic services to veterans enrolled in 
VA's healthcare system as part of basic care. These services include 
examination, diagnosis, treatment, and management of neuromuscular and 
musculoskeletal conditions using non-pharmacological and non-operative 
methods. Because we have interpreted basic care to include chiropractic 
services, have provided these services as part of the medical benefits 
package, and will continue to do so, we are not amending the definition 
of basic care in Sec.  17.38(a)(1) to explicitly include such services 
as it would be unnecessary to do so.
    We note that we do not define rehabilitative services in our 
medical regulations, though the medical benefits package explicitly 
includes them in basic care, 38 CFR 17.38(a)(1)(vi), so we find it 
unnecessary to make any further changes to Sec.  17.38 based on the 
changes

[[Page 58239]]

to the definition of rehabilitative services in 38 U.S.C. 1701(8).
    In the Authority section of 38 CFR part 17, we propose to add a 
citation to 38 U.S.C. 1701 as authority for Sec.  17.38. This change 
would be consistent with the Office of the Federal Register's current 
format for the placement of authority citations in the CFR.
    For those reasons explained above, we would amend the medical 
services definition in Sec.  17.30 to include chiropractic services, 
reference 38 U.S.C. 1701(8) for purposes of defining rehabilitative 
services, remove the parenthetical before preventive health care 
services, and reference VA's regulations at 38 CFR 17.3200 through 
17.3250. We would also amend Sec.  17.38 to add chiropractic services 
to preventive care.

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. There would be no material changes to the medical 
benefits available to veterans. Therefore, pursuant to 5 U.S.C. 605(b), 
the initial and final regulatory flexibility analysis requirements of 5 
U.S.C. 603 and 604 do not apply.

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 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; 64.018, 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, 
Government programs--veterans, Grant programs--veterans, Health care, 
Health facilities, Health professions, Health records, Homeless, 
Medical and Dental schools, Medical devices, Medical research, Mental 
health programs, Nursing homes, Reporting and recordkeeping 
requirements, Travel and transportation expenses, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on October 8, 2021, 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.

Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding an entry for 
Sec.  17.30 and revising the entry for Sec.  17.38 to read in part as 
follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.
    Section 17.30 is also issued under 38 U.S.C. 1701.
    * * *
    Section 17.38 is also issued under 38 U.S.C. 1701 and 1703.
* * * * *
0
2. Amend Sec.  17.30 by:
0
a. Redesignating paragraphs (a)(2) and (3) as paragraphs (a)(3) and 
(4), respectively.
0
b. Revising paragraphs (a) introductory text, and (a)(1), and adding 
(a)(2) to read as follows:


Sec.  17.30  Definitions.

* * * * *
    (a) Medical services. The term medical services includes the 
following:
    (1) Medical examination, treatment, and rehabilitative services (as 
defined in 38 U.S.C. 1701(8)).
    (2) Surgical services, dental services and appliances as authorized 
in Sec. Sec.  17.160 through 17.166, optometric and podiatric services, 
chiropractic services, preventive health care services set forth in 38 
U.S.C. 1701(9), noninstitutional extended care, and items and services 
as authorized in Sec. Sec.  17.3200 through 17.3250.
* * * * *
0
3. Amend Sec.  17.38 by adding new paragraph (a)(2)(x) to read as 
follows:


Sec.  17.38  Medical benefits package.

    (a) * * *
    (2) * * *
    (x) Chiropractic services.
* * * * *

[FR Doc. 2021-22535 Filed 10-20-21; 8:45 am]
BILLING CODE 8320-01-P