[Federal Register Volume 87, Number 228 (Tuesday, November 29, 2022)]
[Proposed Rules]
[Pages 73268-73275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25701]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ58


Collection or Recovery by VA for Humanitarian Care or Services 
and for Certain Other Care and Services

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise its 
regulations concerning reimbursement rates for health care that VA 
provides to individuals who are not otherwise eligible for such care as 
veterans or other VA beneficiaries. Specifically, this rulemaking would 
revise provisions of VA regulations and make them consistent with 
applicable law along with removing obsolete provisions. These revisions 
would clarify VA regulations related to the provision of VA health care 
to individuals who are not otherwise eligible for such care as veterans 
or other VA beneficiaries, and it would not substantively affect the 
provision of health care to eligible veterans or other VA 
beneficiaries.

DATES: Comments must be received by VA on or before January 30, 2023.

ADDRESSES: Comments may be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. 
Comments received before the close of the comment period on 
www.regulations.gov will be posted as soon as possible after they have 
been received. VA will not post public comments that make threats to 
individuals or institutions or suggest that the individual will take 
actions to harm the individual. VA encourages individuals not to submit 
duplicative comments. We will post acceptable comments from multiple 
unique commenters even if the content is identical or nearly identical 
to other comments.

FOR FURTHER INFORMATION CONTACT: Debra Vatthauer, Office of Finance, 
Revenue Operations, Payer Relations and Services, Rates and Charges 
(104RO1), Veterans Health Administration, Department of Veterans 
Affairs, 128 Bingham Road, Suite 1000, Asheville, NC 28806; telephone: 
608-821-7346 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The primary purpose of this rulemaking is to 
clear up internal confusion related to ineligible Civilian Health and 
Medical Program of VA (CHAMPVA) beneficiaries not being billed for 
services and this rulemaking will also clarify the applicable 
regulations organization, authority and any cross references. There are 
several statutory authorities that allow for VA to provide care to 
individuals who would not generally be eligible to receive VA health 
care. While these authorities allow VA to provide the care, these 
authorities also require VA to charge for the vital services it 
provides Section 205 of the appropriations act does not allow 
appropriations for hospitalization or examination of ineligible 
individuals, unless reimbursement of the costs of their care is made at 
a rate determined by VA. Several VA authorities, as codified in title 
38 also require VA to charge for care at rates prescribed by the 
Secretary. Notably, under section 1784 of title 38, United States Code 
(U.S.C.), VA provides medical care or services as a humanitarian 
service in emergency cases to individuals not generally eligible to 
receive such care or services from VA, but is also required to charge 
for those care and services at rates prescribed by the Secretary. Under 
38 U.S.C. 1785, during and in the immediate aftermath of an emergency 
or natural disaster, VA may furnish hospital care and medical services 
to individuals responding to, involved in, or otherwise affected by 
that disaster or emergency, but is required to charge the recipient. 
Under 38 U.S.C. 8111, VA is authorized to enter into sharing agreements 
with the Department of Defense (DoD) for the use or exchange of use of 
health care resources, and VA may bill DoD for certain medical services 
obtained from VA. VA may also provide medical care to certain 
discharged members of allied forces consistent with 38 U.S.C. 109 and 
must enter into agreements for cash reimbursement of incurred expenses 
at such rates and under such regulations as the Secretary may 
prescribe. Section 17.102 of title 38, Code of Federal Regulations 
(CFR) addresses when and how it determines the rate VA will charge for 
medical care and services provided to individuals under all four 
authorities described above.

[[Page 73269]]

    During the COVID-19 pandemic VA has provided significant amounts of 
care to individuals under the Stafford Act via Mission Assignments from 
the Federal Emergency Management Agency (FEMA) within the Department of 
Homeland Security which is distinct from care VA provides under our 
authority in 38 U.S.C. 1785 described above. The care provided under 
the Stafford Act via Mission Assignments would not be impacted by the 
changes made to 38 CFR 17.102 in this rulemaking.
    VA is generally required by law, however, to charge for care 
provided to otherwise ineligible individuals generally at rates 
determined by the Secretary. VA has been charging for this care in 
accordance with 38 CFR 17.102 for many years. This rulemaking updates 
and clarifies when individuals will be charged for this care.
    This proposed rule would primarily reorganize for clarity 38 CFR 
17.102, which lists instances when VA provides health care based on 
various changes in the determination of veteran eligibility and based 
on VA's authorities to provide certain health care to individuals who 
are not otherwise eligible to receive such care from VA. Section 17.102 
also establishes rates VA charges for the care. However, Sec.  17.102, 
did not reference the specific authorities for VA to provide health 
care in each circumstance, and this section does not include all 
circumstances when VA provides care, to individuals who are otherwise 
ineligible to receive care from VA. This proposed rule would revise 
Sec.  17.102 to add citations to and harmonize these authorities. Also, 
the proposed rule would remove unnecessary provisions in Sec.  17.102, 
and it would establish a new data source to calculate the rates charged 
for the care provided pursuant to this regulation. This proposed rule 
would similarly revise regulations that relate to or reference Sec.  
17.102, or otherwise relate to certain health care VA provides to 
individuals who are not eligible to receive the care as veterans or 
other VA health care beneficiaries. We first discuss proposed changes 
to Sec.  17.102.

Section 17.102 Charges for Care or Services

    This proposed rule would revise 38 CFR 17.102 to include additional 
categories of normally ineligible individuals who may receive health 
care services from VA, remove provisions that have become obsolete, and 
update the authorities for VA to provide the health care services. The 
proposed rule would also clarify the difference between the two types 
of rates charged under this section: the Cost-Based Rates and the 
Inter-Agency Rates. In so doing, we propose to reorganize the structure 
of Sec.  17.102 for clarity.
    The table below reflects proposed changes to the structure of Sec.  
17.102. The current section and paragraph are noted in the left column, 
with the proposed new location in column three. Paragraphs that we 
propose to remove are listed in column two. We will discuss the 
rationale for removing specific paragraphs, as well as any proposed 
revisions and additions to current regulatory language.

------------------------------------------------------------------------
                                          Proposed to be     Proposed
             Current 17.102                  removed          17.102
------------------------------------------------------------------------
17.102(a)..............................  ...............    17.102(b)(1)
17.102(b)(1)...........................  ...............    17.102(a)(1)
17.102(b)(2)...........................               X   ..............
17.102(c)..............................  ...............    17.102(a)(5)
17.102(d)..............................  ...............    17.102(b)(2)
17.102(e)..............................  ...............    17.102(b)(3)
17.102(f)..............................  ...............    17.102(a)(6)
17.102(g)..............................               X   ..............
17.102(h)..............................  ...............       17.102(c)
------------------------------------------------------------------------

    The introductory language of 38 CFR 17.102 currently states that 
``[e]xcept as provided in Sec.  17.101, charges at the indicated rates 
shall be made for Department of Veterans Affairs hospital care or 
medical services (including, but not limited to, dental services, 
supplies, medicines, orthopedic and prosthetic appliances, and 
domiciliary or nursing home care) as follows.'' First, we would amend 
the introductory language to reference proposed Sec.  17.102(c) which 
would establish the reimbursement rates. Current reimbursement rates 
are established in Sec.  17.102(h). We explain the proposed changes to 
the data source used to develop the rates and re-designating from 
paragraph (h) to paragraph (c) later in this rulemaking.
    Next, we would amend the introductory language to indicate that the 
rates established in Sec.  17.102 would apply ``notwithstanding'' the 
rates established in Sec.  17.101. This would clarify that the rate 
structures in Sec. Sec.  17.101 and 17.102 are mutually exclusive. 
While the rates under Sec.  17.102 are used to recover costs of VA care 
provided to individuals who are otherwise ineligible for the care, the 
rates in Sec.  17.101 implement VA's authority in 38 U.S.C. 1729 to 
recover reasonable charges from a third party for non-service connected 
VA care provided to an eligible veteran who is also a beneficiary under 
a health-plan contract, workers compensation law, or automobile 
accident reparations insurance.
    We would also amend the introductory language in Sec.  17.102 to 
replace the current list of examples of medical services (i.e., ``. . . 
dental services, supplies, medicines, orthopedic and prosthetic 
appliances, and domiciliary or nursing home care . . . '') and would 
state instead that VA will charge for ``care and services.'' VA is 
making this change to avoid the potential misinterpretation of this 
list as exhaustive. Substituting the list of examples for ``care and 
services'' allows for change in the future and is in line with current 
Veterans Health Administration (VHA) regulation drafting tenets. Other 
proposed revisions to Sec.  17.102 would further distinguish whether 
``hospital care and medical services'' could be provided and charged to 
certain individuals, versus the broader scope of ``hospital care, 
medical services, domiciliary care, or nursing home care.'' This change 
would make the introductory language to Sec.  17.102 more consistent 
with VA authorities to provide and charge for only certain health care 
to individuals not otherwise eligible to receive such care as VA 
beneficiaries.
    Lastly, we would amend the introductory language in Sec.  17.102 to 
indicate clearly that this section relates to care and services 
provided in the circumstances listed in paragraphs (a) and (b).
    Current paragraphs (a) through (g) list instances when care and 
services are furnished to non-veterans and non-VA

[[Page 73270]]

beneficiaries. We would modify the organization of paragraphs (a) 
through (g) for clarity and would remove obsolete or unnecessary 
paragraphs as explained.
    Generally, proposed paragraph (a) would describe charges that arise 
from the provision of ``hospital care or medical services,'' and 
proposed paragraph (b) would describe charges that arise from the 
provision of the broader scope of ``hospital care, medical services, 
domiciliary care, or nursing home care.'' We believe this would be 
consistent with how distinct these four terms are from one another as 
defined in 38 U.S.C. 101 and 1701, and it also would be consistent with 
current VA authorities. For example, VA only has the authority to 
provide ``hospital care and medical services'' as a humanitarian 
service in emergency cases and not domiciliary or nursing home care. 38 
U.S.C. 1784. The instances when VA provides each type of care would be 
listed following paragraphs (a) and (b), respectively.
    Proposed paragraph (a)(1) would state that VA would charge for 
hospital care and medical services that could be provided to 
individuals as a humanitarian service. This proposed revision would re-
designate current paragraph (b) as paragraph (a)(1). We would remove 
references to Sec.  17.41(b)(1) or Sec.  17.95 and would instead 
reference the underlying statutory authority 38 U.S.C. 1784 and 1784A. 
Section 1784 provides the statutory authority for VA to provide care as 
a humanitarian service. Section 1784A provides the statutory authority 
for VA to provide care for examination and treatment for emergency 
medical conditions and women in labor. We note that section 1784A was 
not previously referenced in this regulation because it had not been 
enacted at the time of the most recent previous revision of Sec.  
17.102. However, we believe that this care broadly falls under the 
category of humanitarian care. Therefore, it is appropriate to list it 
together with the care provided under section 1784.
    Proposed paragraph (a)(1) would not retain the language from 
current paragraph (b)(2) related to emergency medical care provided 
separately to VA employees or their family members. We would not retain 
this language since there is no general distinction in the statute 
between individuals or VA employees and their families. The inclusion 
of a separate category for VA employees and their families has been 
included in the CFR since 1967 and the Federal Register notice creating 
it, 32 FR 11382, offers no explanation for why it was originally 
included. VA employees and their families are subsumed in the class of 
individuals for whom VA may provide humanitarian care under section 
1784. VA believes it is unnecessary to distinguish between the two 
groups of individuals under this section. VA charges for the provision 
of care as humanitarian care under 38 U.S.C. 1784 and 1784A, so we 
would not reference any other authority in proposed paragraph (a)(1). 
We note that the charges for care under this paragraph would be VA's 
Cost-Based Rates as described in paragraph (c), discussed in detail 
below.
    Proposed paragraph (a)(2) would state that VA would charge for 
hospital care and medical services that would be provided to 
individuals during and immediately following a disaster or emergency. 
This is in accordance with 38 U.S.C. 1785 and the corresponding 
implementing regulation at 38 CFR 17.86. Proposed paragraph (a)(2) 
would add a new type of VA care to Sec.  17.102 for which VA seeks 
reimbursement, but VA does not view this as a substantive change. 
Section 17.86 already requires reimbursement for this care and 
references Sec.  17.102 to determine the rate for reimbursement. We are 
also proposing to amend Sec.  17.86(e), as discussed in further detail 
below, to clarify the rates of reimbursement pursuant to section 1785 
and to update the reference to Sec.  17.102 considering its proposed 
reorganization. We note that the rates VA would charge for this care 
are based on either the Cost-Based or the Inter-Agency Rate depending 
on whether the beneficiary of the care was authorized by a Federal 
agency to receive care. Proposed Sec.  17.86(e) would provide a 
detailed description of all the charges. Proposed paragraph (a)(2) 
would reference 38 U.S.C. 1785 and 38 CFR 17.86.
    Proposed paragraph (a)(3) would state that VA would charge for 
emergency medical treatment provided to an individual attending a 
national conference in accordance with 38 U.S.C. 1711. VA would charge, 
either the individual or the organization, pursuant to a contract. The 
organization must be recognized under 38 U.S.C. 5902. VA's authority to 
provide this care to individuals at such a national conference, under 
38 U.S.C. 1711, was first promulgated in regulation in 1982, then 
designated as 38 CFR 17.62(i) [47 FR 58249 (December 30, 1982)]. This 
provision remained in annual print editions of the CFR from 1982 
through 1999, at which time Sec.  17.62 was redesignated as Sec.  
17.101 (see 61 FR 21964, where Sec.  17.62(i) became Sec.  17.101(i)). 
Later Sec.  17.101 was redesignated as Sec.  17.102 (see 64 FR 22676, 
where Sec.  17.101(i) became Sec.  17.102(i)). VA did not remove this 
provision since we first promulgated it in 1982. However, the provision 
regarding hospital care and medical services provided to an individual 
attending a national conference of an organization recognized under 38 
U.S.C. 5902 failed to appear in the annual print editions of the CFR 
after 1999, although VA never instituted any type of rulemaking to 
remove it. Proposed paragraph (a)(3) would correct the inadvertent 
removal of this provision, as the underlying statutory authority at 38 
U.S.C. 1711(c)(1) is still in effect. We note that 38 U.S.C. 1711 
mandates that VA be reimbursed for such care as prescribed by the 
Secretary. The care provided under this section would be charged for at 
VA's Cost-Based Rates.
    Proposed paragraph (a)(4) would state that VA will charge for 
hospital care and medical services provided to an individual, in error, 
on the basis of eligibility as a non-veteran recipient of VA health 
care and services under title 38 of the United States Code. This would 
permit VA to collect charges for care provided in VA facilities to 
individuals who were thought to have been eligible to receive health 
care and services as non-veterans under particular VA authorities, such 
as care of allied beneficiaries as permitted by 38 U.S.C. 109, 
caregiver services as permitted by 38 U.S.C. 1720G, the CHAMPVA 
services as permitted by 38 U.S.C. 1781, mental health services as 
permitted by 38 U.S.C. 1782, and newborn care as permitted by 38 U.S.C. 
1786. The authority for this substantive change is 31 U.S.C. 3711, 
which allows the head of an executive agency to collect a claim of the 
United States Government for money or property arising out of the 
activities of the agency. Additionally, section 205 of the Military 
Construction, Veterans Affairs, and Related Agencies Appropriations Act 
of 2022 states that, ``No appropriations in this title shall be 
available for hospitalization or examination of any persons (except 
beneficiaries entitled to such hospitalization or examination under the 
laws providing such benefits to veterans, and persons receiving such 
treatment under sections 7901 through 7904 of title 5, United States 
Code, or the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5121 et seq.)), unless reimbursement of the 
cost of such hospitalization or examination is made to the ``Medical 
Services'' account at such rates as may be fixed by the Secretary of 
Veterans Affairs.''

[[Page 73271]]

    Proposed paragraph (a)(5) would state that VA would charge for 
medical care or services authorized for a beneficiary of the Department 
of Defense, or other Federal agency. This proposed revision would re-
designate current 38 CFR 17.102(c) as paragraph (a)(5). Current Sec.  
17.102(c) provides that the rates for certain care in this paragraph 
would be prescribed by the Office of Management and Budget (OMB). We 
propose to remove this reference because VA began prescribing the rates 
in January 2004 [69 FR 1059 (January 7, 2004)]. We also propose 
removing the references to the specific rates that we would charge for 
care provided to an active service member or beneficiary of a Federal 
agency and former members of a uniformed service who are entitled to 
retired, retainer, or equivalent pay. We would make this change because 
all identified individuals are authorized beneficiaries, and all such 
care would be charged at the Inter-Agency Rate determined in proposed 
paragraph (c). We note that the rates as described in this section 
would only be used if the care is not covered under the active duty 
member's or veteran's TRICARE or under a valid sharing agreement. 
Finally, we would remove the reference in current Sec.  17.102(c) to 
paragraph (f) related to care furnished for military retirees with 
chronic disabilities. We would make this change because, as explained 
below, care furnished for military retirees with chronic disabilities 
would be charged at the same rates as the care furnished in proposed 
paragraph (a)(5). Therefore, it is not necessary to make the 
distinction.
    Proposed paragraph (a)(6) would state that VA would charge for 
hospital care for certain retirees of the uniformed services with a 
chronic disability, as described in Executive Orders 10122, 10400, and 
11733, and 38 CFR 17.44. This proposed revision would re-designate 
current paragraph (f) as paragraph (a)(6) and would make the paragraph 
more consistent with its authorities. Current paragraph (f) states that 
charges under this section are for subsistence at rates prescribed by 
the Under Secretary for Health under Sec.  17.47(b)(2) and (c)(2) for 
hospital care and in effect during the time VA renders the care. We 
propose to change the rate that would be charged from the subsistence 
rate to a rate prescribed by the Secretary (i.e., the Inter-Agency 
rate). VA does not currently have a subsistence rate and believes that 
charging the Inter-Agency Rate is more consistent with the way VA 
generally charges for health care services. Furthermore, we propose to 
remove the reference to Sec.  17.47. Instead, we would reference the 
more relevant authorities of Executive Orders 10122, 10400, 11733, and 
38 CFR 17.44. Executive orders and Sec.  17.44 directly authorize the 
care provided. Comparatively, Sec.  17.47(b)(2) merely defines the 
phrase ``no adequate means of support'' for the purpose of determining 
eligibility for domiciliary care and there is no Sec.  17.47(c)(2) (the 
information in Sec.  17.47(c)(2) has already been consolidated into 
Sec.  17.47(c)). 51 FR 25064 (July 10, 1986).
    As previously stated, proposed paragraph (b) would list instances 
when hospital care, medical services, domiciliary care, or nursing home 
care are provided. Proposed paragraph (b)(1) would state that VA would 
charge for hospital care, medical services, domiciliary care, or 
nursing home care provided to an individual, in error, on the basis of 
veteran eligibility for such care and services under 38 CFR 17.34, 
17.36, or 17.37, and such an individual was subsequently determined not 
to have been eligible for such care or services. This proposed revision 
would re-designate paragraph (a) as paragraph (b)(1), and it would 
revise the references to veteran eligibility for health care. Care 
provided under these circumstances would be charged at the Cost-Based 
Rates.
    Proposed paragraph (b)(2) would state that VA would charge for 
hospital care, medical services, domiciliary care, or nursing home care 
provided to a discharged member of the armed forces of a nation allied 
with the United States in World War I or World War II in accordance 
with 38 U.S.C. 109. This proposed revision would re-designate paragraph 
(d) as paragraph (b)(2). It would add a reference to 38 U.S.C. 109, 
which is VA's statutory authority to provide and receive reimbursement 
for hospital care, medical services, and domiciliary care for allied 
beneficiaries. We note that section 109 does not expressly authorize 
the provision of nursing home services to allied beneficiaries, so the 
language ``in accordance with 38 U.S.C. 109'' in proposed paragraph 
(b)(2) should be sufficiently limiting without having to propose a 
separate paragraph in Sec.  17.102 to address provision of hospital 
care, medical services, and domiciliary care but not nursing home care. 
Proposed paragraph (b)(2) would apply to care that is authorized to be 
provided under section 109, while proposed paragraph (a)(4) would apply 
if care was provided in error based on a finding of eligibility under 
section 109, but the individual was subsequently found not to be 
eligible. We note that the rates for this care would be the Cost-Based 
Rates.
    Proposed paragraph (b)(3) would state that VA would charge for 
hospital care, medical services, domiciliary care, or nursing home care 
provided under a sharing agreement in accordance with 38 U.S.C. 8111 or 
8153 and 38 CFR 17.240. This proposed revision would re-designate 
current paragraph (e) as proposed paragraph (b)(3), and it would more 
succinctly restate the language in paragraph (e) by referring if only 
to the authorities related to VA sharing agreements and VA sharing of 
medical resources under 38 U.S.C. 8111 and 8153, respectively, as well 
as implementing VA regulation at 38 CFR 17.240. This paragraph would 
likely be used when VA enters into a sharing agreement with another 
federal entity, such as the Department of Defense, or participates in 
the sharing of medical resources between entities.
    Proposed paragraph (b)(4) would state that VA would charge the 
rates established in paragraph (c), the Cost-Based or the Inter-Agency 
Rates, for any other care that VA is authorized to provide, at a cost, 
to an individual who is otherwise ineligible for VA care. This new 
paragraph would instruct how VA would charge for care when VA has 
authority to provide such care at a cost but does not have guidance on 
how to charge for the care. This paragraph would likely be used when 
Congress authorizes VA to provide care under new circumstances.
    Current paragraph (g) in Sec.  17.102 would be removed because VA 
examined the regulatory history and found that the requirement was 
obsolete and unnecessary. Specifically, current paragraph (g) 
establishes that VA must reimburse its medical care appropriation fund 
out of its research appropriation fund when VA provides treatment to 
research study participants who are otherwise ineligible for that care 
as veterans. The management of VA's appropriations, such as 
reimbursement of one fund from another, is an internal fiscal procedure 
and does not require authorization in regulation unless otherwise 
specified in law. To date, there is no law that specifies that VA must 
regulate the transfer of these funds. We, therefore, propose to remove 
paragraph (g).
    Current paragraph (h) establishes the rates that VA charges for 
care provided under Sec.  17.102, unless the rates are otherwise 
established under a sharing agreement or contract. Current Sec.  
17.102(h) would be redesignated as proposed paragraph (c), and we would 
revise it to refer to a different VA data source and data report that 
we use to

[[Page 73272]]

establish the rates under Sec.  17.102. These slight revisions would 
state that rates charged for care provided under Sec.  17.102 would be 
based on ``VHA Office of Finance Managerial Cost Accounting (MCA) Cost 
Reports,'' as opposed to being based on the ``Monthly Program Cost 
Report'' as stated in current paragraph (h). Proposed paragraph (c) 
would also remove the stated rate methodology in current paragraph (h), 
as this information is published with the rate tables. VA publishes the 
rate table for Sec.  17.101 on its website and for consistency, and 
ease of access, VA would publish the Sec.  17.102 rates on a website 
where the public could access the rates, OMB has not been involved in 
publishing these rates since 2014 and we would remove reference to the 
option of OMB publishing the rates. Therefore, we believe this would be 
a non-substantive change because the public understands these annually 
published rates.
    Proposed paragraph (c) would also include the methodology to 
determine the rates for prescription drugs that VA furnishes which are 
not administered during treatment. The costs would be based on the 
actual cost of the drug plus a national average of VA administrative 
costs as described in 38 CFR 17.101(m).

Section 17.43 Persons Entitled to Hospital or Domiciliary Care

    This section lists persons entitled to hospital or domiciliary 
care. Specifically, Sec.  17.43(b) lists the three categories of 
persons entitled to emergency hospital care. Paragraph (b)(1) includes 
persons having no eligibility, as a humanitarian service. Paragraph 
(b)(2) includes persons admitted because of presumed discharge or 
retirement from the Armed Forces, but subsequently found to be 
ineligible as such. Paragraph (b)(3) includes employees (not 
potentially eligible as ex-members of the Armed Forces) and members of 
their families, when residing on reservations of VA field facilities, 
and when they cannot feasibly obtain emergency treatment from private 
facilities. We propose to remove paragraph (b)(3) because it places an 
unnecessary restriction on VA employees and their families' ability to 
receive hospital care at a VA facility during an emergency.
    VA has authority to provide hospital care in an emergency to all VA 
employees and their families. Section 1784 of title 38 of the United 
States Code provides that VA may furnish hospital care or medical 
services as a humanitarian service in emergency cases so long as the 
Secretary charges for such care and services. In addition, 38 U.S.C. 
1784A provides that if any individual comes to the hospital or the 
campus of the hospital and a request is made on behalf of the 
individual for examination or treatment for a medical condition, then 
the hospital must provide for an appropriate medical screening 
examination within the capability of the emergency department. This 
medical screening examination would include ancillary services 
routinely available to the emergency department to determine whether an 
emergency medical condition exists. Further, the implementing 
regulation at 38 CFR 17.43(b)(1) provides that emergency hospital care 
may be provided for persons having no eligibility as a humanitarian 
service. Therefore, we believe that 38 U.S.C. 1784, as implemented by 
38 CFR 17.43(b)(1), provides VA authority to provide hospital care to 
all individuals in an emergency, including VA employees and their 
families, regardless of whether they are residing on a field 
reservation or can feasibly obtain emergency treatment from private 
facilities.
    We note that 38 CFR 17.95, whose authority also stems from 38 
U.S.C. 1784, provides that outpatient medical services (as opposed to 
hospital care) may be authorized for VA employees, their families, and 
the general public in emergencies. There are no restrictions placed on 
VA employees and their families when seeking VA outpatient care in an 
emergency.
    Therefore, we propose to remove paragraph (b)(3) as the individuals 
covered under this paragraph are subsumed within paragraph (b)(1), and 
VA believes it is inequitable and unjustified that VA employees and 
their families who are not covered under paragraph (b)(3) should be 
prohibited from receiving VA hospital services in emergencies when VA 
has clear authority under 38 U.S.C. 1784 to provide such care.

Section 17.44 Hospital Care for Certain Retirees With Chronic 
Disability (Executive Orders 10122, 10400 and 11733)

    This section provides that hospital care may be furnished, when 
beds are available, to members or former members of the uniformed 
services who are temporarily or permanently retired for physical 
disability or receiving disability retirement pay who require hospital 
care for chronic diseases and who have no eligibility for hospital care 
under laws governing the Department of Veterans Affairs, or who having 
eligibility do not elect hospitalization as Department of Veterans 
Affairs beneficiaries. Care under this section is subject to three 
conditions. The first condition described in paragraph (a), which is 
most pertinent here, requires persons who are members or former members 
of the United States Armed Forces to agree to pay the subsistence rate 
set by VA, except that no subsistence charge would be made for those 
persons who are members or former members of the Public Health Service, 
Coast Guard, Coast and Geodetic Survey (now the National Oceanic and 
Atmospheric Administration). This also applies to enlisted personnel of 
the Army, Navy, Marine Corps, Air Force, and Space Force.
    This regulation was originally enacted in 1969 (34 FR 9340 June 13, 
1969), and it has not been substantively revised since that time. This 
subsistence rate language seems to be a hold over from earlier practice 
of charging a subsistence rate for daily food/incidentals for certain 
members during a hospitalization if that member is receiving Basic 
Allowance for Subsistence (BAS). BAS is a Department of Defense (DOD) 
program meant to offset costs for a member's meals. This allowance is 
based in the historic origins of the military in which the military 
provided room and board (or rations) as part of a member's pay. VA does 
not currently use, nor does the Secretary of Veterans Affairs set 
subsistence rates. Therefore, the regulation is inconsistent with 
current practice. Due to this, we propose to remove the word 
``subsistence'' from paragraph (a), and we would require persons 
defined in this section to agree to pay a rate set by VA, as prescribed 
in Sec.  17.102(c). VA believes that using the rates established in 
Sec.  17.102(c) (the VHA Office of Finance MCA Cost Report) is 
consistent with the authority to provide care as described in Executive 
Orders 10122, 10400, and 11733. In the Executive Orders, the President 
authorized VA to provide the care and charge for the care, but the 
Executive Orders do not specify the rate VA should charge. VA believes 
that it has the authority to determine the most appropriate rates to 
charge for this care, and we find that charging the rate that is used 
for other otherwise ineligible veterans and non-veteran beneficiaries 
is appropriate.

Section 17.86 Provision of Hospital Care and Medical Services During 
Certain Disasters and Emergencies Under 38 U.S.C. 1785

    We propose to revise paragraph (e) for clarity and to update the 
reference to Sec.  17.102 to conform to the proposed

[[Page 73273]]

revisions of Sec.  17.102 previously described. As the authorizing 
statute, 38 U.S.C. 1785, describes how VA should be reimbursed in 
various instances, we propose to revise paragraph (e) by listing each 
category of person identified in section 1785 and state how VA would 
charge for their care. The proposed changes are technical in nature, 
and we are not proposing any substantive revisions to this section.
    Proposed paragraph (e) would state that the cost of medical care 
and services provided under this section would be determined by the 
situations described below. Proposed paragraph (e)(1) would state that 
if care is provided to an officer or employee of a non-VA department or 
agency of the United States, VA will charge the rate agreed upon by the 
Secretary and the head of such department or agency or the Secretary 
concerned. If no such rate has been agreed to, VA would charge the 
Inter-Agency Rates as prescribed in Sec.  17.102(c). VA believes that 
the Inter-Agency Rate is the most appropriate rate in this context and 
complies with 38 U.S.C. 1785. In Sec.  1785(d), Congress directs that 
the cost of care or services furnished under this section to an officer 
or employee of a department or agency of the United States shall be 
reimbursed at such rates as may be agreed upon by the Secretary and the 
head of such department or agency of the Secretary concerned. The 
Inter-Agency Rates are the generally agreed upon rates between VA and 
other Federal agencies.
    Although current Sec.  17.86 includes member of the Armed Forces in 
the same sentence as an officer or employee of a non-VA department or 
agency of the United States, to more closely follow the authority in 38 
U.S.C. 1785(d), we propose to have separate paragraphs to describe the 
rates for care provided to an officer or employee of a department or 
agency of the United States and the rates for care for members of the 
Armed Forces, as these individuals are referred to separately in the 
statute. Therefore, even though the Inter-Agency Rate would be charged 
in both circumstances, the regulation would more closely follow the 
statute to have separate paragraphs for each group identified by 
statute.
    Proposed paragraph (e)(2) would state that if care is provided to a 
member of the Armed Forces, then VA would charge the rate agreed upon 
by the Secretary and the head of the branch of the Armed Forces or the 
Secretary concerned. If no rate has been agreed to, VA would be 
reimbursed at the Inter-Agency Rates as prescribed in Sec.  17.102(c). 
VA believes that the Inter-Agency Rates are the most appropriate rates 
to charge for these individuals. Per 38 U.S.C. 1785(d) VA may be 
reimbursed based on the cost of the care or service furnished to 
members of the Armed Forces. The Inter-Agency Rate is based on VA cost 
that is specifically used to determine reimbursable charges from other 
Federal agencies, such as the Department of Defense.
    Proposed paragraph (e)(3) would state that if the care is 
authorized under a sharing agreement as described in 38 U.S.C. 8111 or 
8153 and 38 CFR 17.240, VA would be reimbursed at the rate determined 
in accordance with the terms of the sharing agreement.
    Proposed paragraph (e)(4) would state that if the care is provided 
to an individual who is responsible for the cost of the care, VA would 
charge the Cost-Based Rate as prescribed in Sec.  17.102(c). We would 
note that individuals would be responsible for the cost of care or 
services if mandated by Federal law (including applicable 
appropriations acts) or when the cost of care or services is not 
reimbursed by other-than-VA Federal departments or agencies. We believe 
that the Cost-Based Rates are the most appropriate for these 
individuals because the Cost-Based Rates are generally charged for care 
provided to individuals who are not beneficiaries of other Federal 
agencies or otherwise eligible for care from VA, as is required by the 
intent of appropriations act 205. The Cost Based Rate reflects the cost 
to VA to provide care to this non eligible individual and is explained 
in the yearly rate update.

Paperwork Reduction Act

    This proposed rule contains no 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. This proposed rule would affect only individuals and 
other Federal agencies. 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 Orders 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 determined that this 
proposed rule is 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.

Assistance Listing

    The Assistance Listing program numbers and titles for the programs 
affected by this document are Veterans Domiciliary 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; 64.026--Veterans State 
Adult Day Health Care; 64.029--Purchase Care Program; 64.033--VA 
Supportive Services for Veteran Families Program; 64.039--CHAMPVA; 
64.040--VHA Inpatient Medicine; 64.041--VHA Outpatient Specialty Care; 
64.042--VHA Inpatient Surgery; 64.043--VHA Mental Health Residential; 
64.044--VHA Home Care; 64.045--VHA Outpatient Ancillary Services; 
64.046--VHA Inpatient Psychiatry; 64.047--VHA Primary Care; 64.048--VHA 
Mental Health clinics; 64.049--VHA Community Living Center; 64.050--VHA 
Diagnostic Care; 64.053.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Grant programs-veterans, 
Health care, Health facilities, Health professions, Health

[[Page 73274]]

records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on February 27, 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,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons discussed 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 entries for 
Sec. Sec.  17.43, 17.44, 17.86, and 17.102 in numerical order to read 
in part as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.43 also issued under 38 U.S.C. 109, 1784, 8111, and 
8153.
    Section 17.44 also issued under E.O. 10122, 15 FR 2173, 3 CFR, 
1949-1953 Comp., p. 313, E.O. 10400, 17 FR 8648, 3 CFR, 1949-1953 
Comp., p. 900, and E.O. 11733, 38 FR 20431, 3 CFR, 1971-1975 Comp., 
p. 792.
* * * * *
    Section 17.86 also issued under 38 U.S.C. 1785.
* * * * *
    Section 17.102 also issued under 38 U.S.C. 109, 1711, 1729, 
1784, 1784A, 1785, 8111, 8153.
* * * * *


Sec.  17.43  [Amended]

0
2. Amend Sec.  17.43 by removing paragraph (b)(3).
0
3. Amend Sec.  17.44 by revising paragraph (a) to read as follows:


Sec.  17.44  Hospital care for certain retirees with chronic disability 
(Executive Orders 10122, 10400 and 11733).

* * * * *
    (a) Persons defined in this section who are members or former 
members of the active United States Armed Forces must agree to pay the 
rate set by the Secretary of Veterans Affairs as prescribed in Sec.  
17.102(c), except that no charge will be made for those persons who are 
members of the Public Health Service, Coast Guard, Coast and Geodetic 
Survey now NOAA, and enlisted personnel of the Army, Navy, Marine 
Corps, Air Force, and Space Force.
* * * * *
0
4. Amend Sec.  17.86 by:
0
a. Revising paragraph (e); and
0
b. Removing the parenthetical authority citation at the end of the 
section.

    The revision reads as follows:


Sec.  17.86  Provision of hospital care and medical services during 
certain disasters and emergencies under 38 U.S.C. 1785.

* * * * *
    (e) The cost of care for medical care and services provided under 
this section will be determined in accordance with the following:
    (1) If the care is provided to an officer or employee of a non-VA 
Federal agency VA will charge the rate agreed upon by the Secretary and 
the head of such department or agency or the Secretary concerned. If no 
such rate has been agreed to, VA will charge the Inter-Agency Rate as 
prescribed in Sec.  17.102(c).
    (2) If the care is provided to a member of the Armed Forces VA will 
charge the rate agreed upon by the Secretary and the head of such 
branch or the Secretary concerned. If no such rate has been agreed to, 
VA will charge the Inter-Agency Rate as prescribed in Sec.  17.102(c).
    (3) If the care is authorized under a sharing agreement as 
described in 38 U.S.C. 8111 or 8153 or Sec.  17.240, VA will charge the 
rate determined in accordance with the sharing agreement.
    (4) If the care is provided to an individual who is responsible for 
the cost of the care, VA will charge the Cost-Based Rate as prescribed 
in Sec.  17.102(c). Individuals will be responsible for the cost of 
care or services if mandated by Federal law (including applicable 
Appropriations Acts) or when the cost of care or services is not 
reimbursed by other-than-VA Federal departments or agencies.
* * * * *
0
5. Revise Sec.  17.102 to read as follows:


Sec.  17.102  Charges for care or services.

    Subject to the methodology set forth in paragraph (c) of this 
section, and notwithstanding the provisions of Sec.  17.101, VA shall 
charge for VA care and services provided in the circumstances described 
in this section.
    (a) For hospital care or medical services provided:
    (1) As a humanitarian service in a medical emergency in accordance 
with 38 U.S.C. 1784 or 38 U.S.C. 1784A;
    (2) During and immediately following a disaster or emergency in 
accordance with 38 U.S.C. 1785 and Sec.  17.86;
    (3) While attending a national convention of an organization 
recognized under 38 U.S.C. 5902, for emergency medical treatment, in 
accordance with 38 U.S.C. 1711;
    (4) In error, on the basis of eligibility as a non-veteran 
recipient of VA hospital care and medical services under title 38 
U.S.C., and such an individual subsequently is determined not to have 
been eligible for such care or services;
    (5) To a beneficiary of the Department of Defense or other Federal 
agency, to include for inpatient or outpatient care or services 
authorized for a member of the Armed Forces on active duty, a 
beneficiary or designee of any other Federal agency, and members or 
former members of a uniformed service who are entitled to retired or 
retainer pay, or equivalent pay; or
    (6) To a retiree of the uniformed services with a chronic 
disability for hospital care identified in Executive Orders 10122, 
10400, and 11733 as well as Sec.  17.44.
    (b) For hospital care, medical services, domiciliary care, or 
nursing home care provided:
    (1) In error, on the basis of eligibility for such care and 
services as a veteran under Sec.  17.34, Sec.  17.36, or Sec.  17.37, 
and such an individual was subsequently determined not to have been 
eligible for such care or services.
    (2) To a discharged member of the armed forces of a nation allied 
with the United States in World War I or World War II in accordance 
with 38 U.S.C. 109.
    (3) Under a sharing agreement in accordance with 38 U.S.C. 8111 or 
8153 and Sec.  17.240.
    (4) Under any other provision of law that authorizes VA to provide 
care.
    (c) Unless rates or charges are otherwise established in contract, 
in a sharing agreement, or under Federal law, VA will charge under this 
section at rates based on the Veterans Health Administration (VHA) 
Office of Finance Managerial Cost Accounting (MCA) Cost Reports, which 
sets forth the actual basic costs and per diem rates by type of 
inpatient care, and actual basic costs and rates for outpatient care 
visits. Factors for depreciation of buildings and equipment and Central 
Office overhead are added, based on accounting manual instructions. 
Additional factors are added for interest on capital investment and for 
standard fringe benefit costs covering government

[[Page 73275]]

employee retirement and disability costs. The VHA Office of Finance MCA 
Cost Reports are used to determine two separate rates: one rate is the 
general Cost-Based Rate and the other rate is the Inter-Agency Rate. 
These rates are published annually by VA on the internet site of the 
Veterans Health Administration Office of Community Care's website at 
https://www.va.gov/communitycare/revenue_ops/payer_rates.asp.
    (d) The rates for prescription drugs that VA furnishes not 
administered during treatment are based on the actual cost of the drug 
plus a national average of VA administrative costs as described in 
Sec.  17.101(m).

[FR Doc. 2022-25701 Filed 11-28-22; 8:45 am]
BILLING CODE 8320-01-P