[Federal Register Volume 87, Number 140 (Friday, July 22, 2022)]
[Rules and Regulations]
[Pages 43746-43748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15572]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 70

RIN 2900-AQ44


VHA Claims and Appeals Modernization

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations concerning its claims and appeals process governing various 
programs administered by the Veterans Health Administration (VHA). The 
Veterans Appeals Improvement and Modernization Act of 2017 (hereafter 
referred to as the AMA) amended the procedures applicable to 
administrative review and appeal of VA decisions on claims for 
benefits, creating a new, modernized review system. This amendment will 
sunset certain VHA regulations which are inconsistent with the AMA.

DATES: Effective date: This rule is effective August 22, 2022.

FOR FURTHER INFORMATION CONTACT: Erik Shepherd, Chief, VHA Claims and

[[Page 43747]]

Appeals Modernization, Office of Regulations, Appeals, and Policy, 
Department of Veterans Affairs, 810 Vermont Ave. NW, Washington, DC 
20420, (202) 450-7882 (This is not a toll-free number.).

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on February 21, 2020, VA published a proposed rule to revise 
38 CFR 17.133, 17.276, 17.904, 17.1006, and 70.40 to make clear that 
VHA reconsideration is available only in legacy claims. VA also 
proposed to revise Sec.  17.132 to clarify that appeal to the Board of 
Veterans' Appeals, as the sole avenue for disputing a VA decision 
regarding payment or reimbursement for care at a non-VA facility or by 
a non-VA provider, will apply only to payment decisions made for legacy 
claims. 85 FR 10118. VA provided a 60-day comment period, which ended 
on April 21, 2020. VA received six comments on the proposed rule. We 
adopt the proposed rule as final, with one technical change. The 
technical change removes the proposed amendments to 38 CFR 17.276 from 
this rulemaking for the reasons stated below.
    Two comments expressed general support for VHA's adoption of 
processes contained in the AMA, but did not suggest any changes to the 
rule as proposed. To the extent that one comment indicated that the 
full potential has not yet been met for VHA appeals, and any 
opportunity to speed up the process should be considered and executed, 
VA has implemented the AMA as generally applicable to benefits 
administered throughout VA, to include benefits administered by VHA. 
The current rulemaking only addressed current VHA regulations that are 
inconsistent with the AMA and the VA Claim and Appeals Modernization 
regulatory amendments. As the proposed rule did not attempt to 
delineate any VHA specific appeals process updates, we believe that 
this portion of the comment is outside the scope of the proposed 
rulemaking. VA appreciates these comments and makes no changes based on 
these comments.
    Two comments recommended that VA open new medical schools. Because 
the proposed rule sought to discontinue certain legacy processes 
associated with VA claims, and did not address other VA processes or 
more specifically the concept of VA establishing medical schools, these 
comments are beyond the scope of the proposed rule, and we make no 
changes based on these comments.
    One comment alleged discrimination and referred to a Historically 
Underutilized Business Zone (HUB Zone) appeal. Without more information 
in the comment to link the alleged discrimination to the proposed rule, 
we believe a general reference to a HUB Zone appeal is beyond the scope 
of the proposed rule that sought to discontinue certain legacy 
processes associated with VA claims. We therefore make no changes based 
on this comment.
    Lastly, one comment encouraged VA to revise Sec.  17.133 as 
proposed to add U.S. Department of Housing and Urban Development-VA 
Supportive Housing (HUD-VASH) Program benefits as an enumerated benefit 
subject to reconsideration under the legacy administrative processes. 
VA's proposed rule contemplated neither expansion, contraction, nor 
clarification of the benefits subject to the legacy administrative 
processes. Instead, the preamble to the proposed rule merely stated 
that reconsiderations would only be available to legacy appeals as the 
term legacy appeal is defined in parts 3 and 19 of title 38 of the Code 
of Federal Regulations. As the proposed rule did not attempt to define 
or clarify what is contemplated in the definition of legacy appeal, we 
believe that this comment is also outside the scope of the proposed 
rulemaking. VA is not making any changes based on this comment.
    In a related rulemaking, RIN 2900-AP02, VA proposed changes to 38 
CFR 17.276. See 83 FR 2396. RIN 2900-AP02 was finalized and published 
first and, as such, any changes to 38 CFR 17.276 are removed and 
included in RIN 2900-AP02. See 87 FR 41594. VA received no comments on 
the proposed changes to 38 CFR 17.276 in either rulemaking. Given that 
the changes proposed to 38 CFR 17.276 are now addressed by RIN 2900-
AP02, any changes in the original proposed rule related to 38 CFR 
17.276 are removed from this rulemaking.

Executive Orders 12866, 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.

Regulatory Flexibility Act

    The Secretary hereby certifies that this 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). This rule only affects procedures regarding the appeals process; 
it does not affect the cost of filing an appeal nor any amount duly 
owed to a small entity. 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.

Unfunded Mandates

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

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Assistance Listing

    The Assistance Listing numbers and titles for the programs affected 
by this document are 64.009--Veterans Medical Care Benefits; 64.039--
CHAMPVA.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Parts 17 and 70

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

[[Page 43748]]

Scholarships and fellowships, Travel and transportation expenses, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on June 17, 2022, 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 set out in the preamble, we amend 38 CFR parts 17 
and 70 as set forth below:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read in part as 
follows:

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

0
2. Amend Sec.  17.132 by:
0
a. Designating the undesignated paragraph as paragraph (b).
0
b. Adding paragraph (a).
    The addition reads as follows:


Sec.  17.132   Appeals.

    (a) This section applies only to legacy claims.
* * * * *

0
3. Amend Sec.  17.133 by revising paragraph (a) to read as follows:


Sec.  17.133  Procedures.

    (a) Scope. This section sets forth reconsideration procedures 
regarding claims for benefits administered by the Veterans Health 
Administration (VHA). This section applies only to legacy claims.
* * * * *

0
4. Amend Sec.  17.904 by:
0
a. Designating the undesignated paragraph as paragraph (b).
0
b. Adding paragraph (a).
    The addition reads as follows:


Sec.  17.904  Review and appeal process.

    (a) This section applies only to legacy claims.
* * * * *

0
5. Amend Sec.  17.1006 by revising the final sentence to read as 
follows:


Sec.  17.1006  Decisionmakers.

    * * * Any decision denying a benefit must be in writing and inform 
the claimant of VA appeal rights.
* * * * *

PART 70--VETERANS TRANSPORTATION PROGRAMS

0
6. The authority citation for part 70 continues to read as follows:

    Authority:  38 U.S.C. 101, 111, 111A, 501, 1701, 1714, 1720, 
1728, 1782, 1783, and E.O. 11302, 31 FR 11741, 3 CFR, 1966-1970 
Comp., p. 578, unless otherwise noted.


0
7. Amend Sec.  70.40 by:
0
a. Designating the undesignated paragraph as paragraph (b).
0
b. Adding paragraph (a).
    The addition reads as follows:


Sec.  70.40  Administrative procedures.

    (a) This section applies only to legacy claims.
* * * * *
[FR Doc. 2022-15572 Filed 7-21-22; 8:45 am]
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