[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Rules and Regulations]
[Pages 2526-2537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00298]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AR50


Emergent Suicide Care

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its medical 
regulations to implement section 201 of the Veterans Comprehensive 
Prevention, Access to Care, and Treatment Act of 2020, which directs VA 
to furnish, reimburse, and pay for emergent suicide care for certain 
individuals, to include the provision of emergency transportation 
necessary for such care.

DATES: 
    Effective date: This interim final rule is effective on March 20, 
2023.
    Comments: Comments must be received on or before March 20, 2023.

ADDRESSES: Comments must 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. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: http://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter 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. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Office of Integrated 
Veteran Care (16EO3), Veterans Health Administration, Department of 
Veterans Affairs, Ptarmigan at Cherry Creek, Denver, CO 80209; (303) 
370-1637. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On December 5, 2020, the Veterans 
Comprehensive Preventions, Access to Care and Treatment Act of 2020, 
Public Law (Pub. L.) 116-214 (the Act), was enacted into law. Section 
201 of the Act created a new section 1720J in title 38, United States 
Code (U.S.C.), to authorize VA to provide emergent suicide care to 
certain individuals. Section 1720J(b) of 38 U.S.C. provides that an 
individual is eligible for emergent suicide care if they are in acute 
suicidal crisis and are either (1) a veteran as defined in 38 U.S.C. 
101, or (2) an individual described in 38 U.S.C. 1720I(b). Individuals 
described in section 1720I(b) are (1) former members of the Armed 
Forces, including the reserve components; who, (2) while serving in the 
active military, naval, air, or space services, were discharged or 
released therefrom under a condition that is not honorable but is also 
not (A) a dishonorable discharge or (B) a discharge by court-martial; 
who (3) is not enrolled in the health care system established by 
section 1705 of title 38 U.S.C.; and (4)(A)(i) served in the Armed 
Forces for a period of more than 100 cumulative days; and (ii) was 
deployed in a theater of combat operations, in support of a contingency 
operation, or in an area at a time during which hostilities are 
occurring in that area during such service, including by controlling an 
unmanned aerial vehicle from a location other than such theater or 
area; or (B) while serving in the Armed Forces, was the victim of a 
physical assault of a sexual nature, a battery of a sexual nature, or 
sexual harassment (as defined in section 1720D(f) of title 38 U.S.C.).
    Section 1720J(a) requires VA to (1) furnish emergent suicide care 
to an eligible individual at a medical facility of the Department; (2) 
pay for emergent suicide care provided to an eligible individual at a 
non-Department facility; and (3) reimburse an eligible individual for 
emergent suicide care provided to

[[Page 2527]]

the eligible individual at a non-Department facility. This interim 
final rule will establish new regulations in title 17, Code of Federal 
Regulations (CFR), at 38 CFR 17.1200 through 17.1230, to implement the 
provisions of 38 U.S.C. 1720J as described above as well as implement 
other substantive provisions as required by 38 U.S.C. 1720J to include: 
the duration of emergent suicide care that VA must provide; prohibition 
on charge for such care provided; rates VA will pay or reimburse for 
emergent suicide care (to include for emergency transportation required 
for such care); and required definitions.

17.1200 Purpose and Scope

    Section 17.1200 explains the purpose and scope of these new 
regulations. Paragraph (a) states that Sec. Sec.  17.1200 through 
17.1230 implement VA's authority under 38 U.S.C. 1720J to provide 
emergent suicide care. This language will use the term provide, which 
VA will define in Sec.  17.1205 to mean furnished directly by VA, paid 
for by VA, or reimbursed by VA. This language will both expressly 
recognize in regulation VA's statutory authority to provide this care, 
as well as the three means by which VA must provide this care, 
consistent with 38 U.S.C. 1720J(a). We will explain at a later point in 
this preamble (in the section regarding payments) the different 
considerations that apply when VA provides care directly in a VA 
facility compared to when VA pays or reimburses for care provided in a 
non-VA facility.
    Paragraph (b) states that Sec. Sec.  17.1200 through 17.1230 
establish criteria specific to VA's provision of emergent suicide care 
under 38 U.S.C. 1720J, which do not affect eligibility for other care 
under chapter 17 of title 38, U.S.C., that may otherwise be received by 
an individual eligible under Sec.  17.1210 (where Sec.  17.1210 will 
establish eligibility for emergent suicide care, as explained later in 
this preamble). We believe this language is necessary to clarify that 
VA's provision of emergent suicide care under section 1720J is distinct 
from other care under chapter 17 of title 38 U.S.C., because VA has 
been providing the same types of care to veterans under the authority 
of section 1710 and 38 CFR 17.38 as part of the medical benefits 
package. However, we note that section 1720J not only expands 
eligibility for this care to individuals who would not be eligible to 
receive the same care under section 1710, but also offers the 
additional benefits of (1) having such care be at no cost to the 
individual (e.g., not subject to otherwise applicable VA copayments), 
and (2) having VA pay the cost of emergency transportation necessary to 
receive the care, without the individual having to meet otherwise 
applicable transportation criteria in VA regulations. Because emergent 
suicide care offered under section 1720J offers benefits in addition to 
those already administered by VA under other authorities (e.g., section 
1720J provides that there will be no charges for such care, and 
provides for coverage of emergency transportation necessary to receive 
such care), Sec.  17.1200(b) will state that if an individual is 
eligible under Sec.  17.1210, they will receive emergent suicide care 
in accordance with Sec. Sec.  17.1200-17.1230 and not under other 
regulations through which emergent or other care may be provided. We 
believe this will ensure that the additional benefits under section 
1720J as stated above will be available to individuals eligible under 
Sec.  17.1210. However, language in Sec.  17.1200(b) will also clarify 
that eligibility under Sec.  17.1210 does not affect eligibility for 
other care under chapter 17 of title 38 U.S.C. We believe this language 
will ensure that receipt of care under Sec. Sec.  17.1200 through 
17.1230 does not impact the receipt of other care.

17.1205 Definitions

    Section 17.1205 will define key terms that apply to Sec. Sec.  
17.1200-17.1230. The definitions are listed in alphabetical order, 
beginning with the term acute suicidal crisis, and are consistent with 
the terms defined in 38 U.S.C. 1720J(h).
    The term acute suicidal crisis is defined to mean an individual was 
determined to be at imminent risk of self-harm by a trained crisis 
responder or health care provider. This definition is necessary to 
qualify when an individual is eligible to have VA provide emergent 
suicide care, as required by section 1720J(b), and is identical to the 
definition of acute suicidal crisis in section 1720J(h)(1). We will 
further define the terms trained crisis responder and health care 
provider to clarify who may make the determination that an individual 
is in acute suicidal crisis. We will more comprehensively discuss the 
determination of acute suicidal crisis in the section of the preamble 
that addresses eligibility criteria. The term acute suicidal crisis 
will be used in a regulatory section related to eligibility for 
emergent suicide care, as explained later in this preamble.
    The term crisis residential care is defined as emergent suicide 
care provided in a residential facility other than a hospital (that is 
not a personal residence) that provides 24-hour medical supervision. 
This definition is necessary to qualify a type of setting in which VA 
can provide emergent suicide care in section 1720J(c)(1)(A). This 
definition is also consistent with the definition of crisis residential 
care in section 1720J(h)(2), although VA's definition would add that 
the facility other than a hospital must not be a personal residence and 
must be able to provide 24-hour medical supervision. The additional 
criterion related to 24-hour medical supervision will clarify that VA 
only provides emergent suicide care in a residential facility setting 
that can adequately monitor the safety and medical condition of an 
individual that has been determined to be in acute suicidal crisis. 
Such crisis residential settings could include but not be limited to 
crisis residential programs (such as residential treatment centers) 
administered by either a State or private business but would not 
include any care that could be received in a personal residence because 
section 1720J(h)(2)(B) requires that emergent suicide care be provided 
in a facility. We will not define more specific types of modality, 
therapies, or treatments that may be received as part of crisis 
residential care, as that would be unduly limiting given that care and 
treatment for individuals in acute suicidal crisis will vary. This term 
will be used in a regulatory section related to the duration of 
emergent suicide care, as explained later in this preamble.
    The term crisis stabilization care is defined to mean, with respect 
to an individual in acute suicidal crisis, care that ensures, to the 
extent practicable, immediate safety and reduces: the severity of 
distress; the need for urgent care; or the likelihood that the severity 
of distress or need for urgent care will increase during the transfer 
of that individual from a facility at which the individual has received 
care for that acute suicidal crisis. This definition is necessary to 
provide context for VA's provision of care under section 1720J(a) and 
is identical to the definition of crisis stabilization care in section 
1720J(h)(3). This term also qualifies the term emergent suicide care, 
as discussed below.
    The term emergent suicide care is defined to mean crisis 
stabilization care provided to an individual eligible under Sec.  
17.1210 pursuant to a recommendation from the Veterans Crisis Line or 
when such individual has presented at a VA or non-VA facility in an 
acute suicidal crisis. This definition is necessary to provide context 
for VA's provision of care under section 1720J(a) and is consistent 
with the definition of emergent suicide care in 1720J(h)(4). A

[[Page 2528]]

section of this preamble related to Sec.  17.1220 will discuss some 
examples of care that we envision being provided as emergent suicide 
care, but we do note here that we do not intend to define such care 
more specifically by identifying distinct modalities, therapies, or 
treatments--we do not want the definition of emergent suicide care to 
unduly limit potentially stabilizing services that will vary based on 
the unique needs of the individuals in acute suicidal crisis.
    The term health care provider is defined as a VA or non-VA provider 
who is licensed to practice health care by a State and who is 
performing within the scope of their practice as defined by a State or 
VA practice standard. This definition is necessary to qualify who may 
make the determination of whether an individual is in acute suicidal 
crisis as required by section 1720J(b) and (h)(1). This term is not 
defined in section 1720J, so we have based the definition on a similar 
definition used in VHA Directive 1100.20, which relates to the 
credentialing of VA health care providers. Such providers will include 
but not be limited to physicians and registered nurses. This term will 
be used in a regulatory section related to eligibility for emergent 
suicide care, as explained later in this preamble.
    The term health plan contract is defined as having the same meaning 
as that term is defined in 38 U.S.C. 1725(f)(2). This definition is 
necessary because section 1720J(f)(3) provides that VA may recover the 
costs of emergent suicide care it provides, other than for such care 
for a service-connected disability, if the eligible individual that 
received such care was entitled to the care or payment for such care 
under a health-plan contract. This term will be used in a regulatory 
section related to VA's payment for emergent suicide care, as explained 
later in this preamble.
    The term inpatient care is defined to mean care received by an 
individual during their admission to a hospital. This definition is 
necessary to qualify the types of settings in which VA can provide 
emergent suicide care in section 1720J(c)(1)(A). The term inpatient 
care is not defined in section 1720J, and VA has based its definition 
on plain language that we believe is clearly understandable. This term 
will be used in a regulatory section related to the duration of 
emergent suicide care that VA provides, as explained later in this 
preamble.
    Non-VA facility is defined to mean a facility that meets the 
definition in 38 U.S.C. 1701(4). This definition is necessary to 
qualify a type of facility in which emergent suicide care may be 
provided and where VA must pay or reimburse for such care under section 
1720J(a)(2) and (3). We note that the term non-VA facility is intended 
to be equivalent to the term ``non-Department facilities'' that will be 
cross referenced in section 1701(4). Because the term in section 
1701(4) is further dependent on the definition of ``facilities of the 
Department'' in section 1701(3), we will further define the term VA 
facility later in the definitions (to cross reference section 1701(3)). 
We recognize that defining non-VA facility to cross reference the 
definition in section 1701(4) will essentially qualify any facility 
type that is not owned or operated by VA. However, we will not further 
characterize the types of non-VA facilities (e.g., hospitals, or 
outpatient clinics), as 1720J authorizes VA to provide for both 
inpatient and outpatient care.
    The term outpatient care is defined to mean care received by an 
individual that is not described within the definition of inpatient 
care under Sec.  17.1205 to include telehealth, and without the 
provision of room or board. This term is not defined in section 1720J, 
and VA has based its definition on plain language that we believe is 
clearly understandable. We will not define more specific types of 
modality, therapies, or treatments that may be received as outpatient 
care, as that would be unduly limiting. This term will be used in a 
regulatory section related to the duration of emergent suicide care 
that VA provides, as explained later in this preamble.
    The terms provide, provided, or provision are defined to mean 
furnished directly by VA, paid for by VA, or reimbursed by VA. These 
terms will simplify mention of VA's obligations under section 
1720J(a)(1)-(3) for ease of understanding as appropriate throughout the 
regulations.
    The term trained crisis responder is defined as an individual who 
responds to emergency situations in the ordinary course of their 
employment and therefore can be presumed to possess adequate training 
in crisis intervention. This definition is necessary to qualify who may 
make the determination of whether an individual is in acute suicidal 
crisis as required by section 1720J(b) and (h)(1). This term is not 
defined in section 1720J, and VA only has expertise in the training 
levels of its own Veterans Crisis Line (VCL) responders. VA considered 
but ultimately decided against defining the term trained crisis 
responder to be limited to only VCL responders, as that would have 
unnecessarily limited those individuals that may, in the ordinary 
course of their employment, have the knowledge and expertise to assess 
suicidal crisis and in fact direct individuals in such crisis to seek 
care. Instead, the definition of trained crisis responder uses plain 
language to qualify training that would be expected of individuals who 
respond to emergencies, where such individuals include but are not 
limited to Veteran Crisis Line responders, law enforcement or police 
officers, firefighters, and emergency medical technicians. We note that 
a determination of acute suicidal crisis is a qualifier for eligibility 
for VA's provision of emergent suicide care, and that determination can 
be made by either a health care provider or a trained crisis responder 
under section 1720J(b). However, the level and duration of emergent 
suicide care to be provided to individuals eligible for such care is a 
medical determination to be made only by health care providers, as will 
be discussed later in the section of the preamble related to duration 
of care.
    VA facility is defined to mean a facility that meets the definition 
in 38 U.S.C. 1701(3). This definition is necessary to qualify a type of 
facility in which emergent suicide care must be directly furnished by 
VA under section 1720J(a)(1). We note that the definition that will be 
cross referenced in section 1701(3) is for ``facilities of the 
Department,'' which is equivalent to a VA facility. We will not more 
specifically list the types of VA facilities (e.g., VA Medical Center 
or VA Community Based Outpatient Clinic) in which emergent suicide care 
will be directly furnished by VA, as this will be too limiting if VA 
nomenclature for types of VA facilities changes or if level of services 
available in types of VA facilities changes. VA will be able to 
internally track those facilities that meet the definition in section 
1701(3) for purposes of directly furnishing emergent suicide care.
    Veterans Crisis Line is defined to mean the hotline under 38 U.S.C. 
1720F(h). This definition is consistent with section 1720J(h)(6) and is 
necessary to provide context for the use of this same term in the 
definition of emergent suicide care.

17.1210 Eligibility

    Section 17.1210 will establish criteria to determine an 
individual's eligibility for emergent suicide care. Paragraph (a) will 
establish that an individual is eligible if they were determined to be 
in acute suicidal crisis and are either: (1) a veteran as that term is 
defined in 38 U.S.C. 101, or (2) an individual described in 38 U.S.C. 
1720I(b). Language in Sec.  17.1210(a) will mirror

[[Page 2529]]

eligibility language from section 1720J(b), as we believe such language 
is clear and does not require further interpretation through 
regulation. Particularly, we will not regulate characteristics of how 
acute suicidal crisis may appear or present in an individual or other 
parameters that must be met, beyond the definition of acute suicidal 
crisis in Sec.  17.1205 to mean the individual was determined to be at 
imminent risk of self-harm by a trained crisis responder or health care 
provider. The determination of imminent risk of self-harm could vary 
greatly based on the individual and be based on a totality of 
circumstances and information as assessed by the trained crisis 
responder or health care provider, to include but not be limited to 
direct statements from an individual, as well as other pertinent 
information such as knowledge of an individual's past or present 
behaviors that signal a risk of self-harm, or even an individual's past 
suicide attempts that could evidence additional risk of self-harm. We 
will not regulate, however, that an individual must communicate any 
particular language, or that their behavior must meet any particular 
parameters, or that they must have any type of diagnosis to indicate 
that they are in acute suicidal crisis.
    Regarding language in section 1720J(b)(1) and Sec.  17.1210(a)(1), 
a veteran as defined in section 101, means a person who served in the 
active military, naval, air, or space service, and who was discharged 
or released therefrom under conditions other than dishonorable. Rather 
than restating this definition from 38 U.S.C. 101, Sec.  17.1210(a)(1) 
will reference section 101 in the event the definition of veteran under 
the statute may change (for instance, the definition of veteran in 
section 101 was amended by sec. 926(a)(1) of Public Law 116-283 on 
January 1, 2021, to substitute ``air, or space service'' for ``or air 
service''). We note that section 1720J(b)(1) does not establish that a 
veteran must be enrolled in VA healthcare in accordance with VA's 
healthcare enrollment authority in section 1705 and as regulated in 
Sec.  17.36. We therefore will also amend Sec.  17.37, VA's regulation 
related to veteran enrollment not being required to receive certain 
health care and services, to add a new paragraph (l) to establish that 
a veteran need not be enrolled to receive emergent suicide care 
pursuant to 38 CFR 17.1200-17.1230.
    Regarding language in section 1720J(b)(2) and Sec.  17.1210(a)(2), 
individuals described in section 1720I(b) are: (1) former members of 
the Armed Forces, including the reserve components; who, (2) while 
serving in the active military, naval, air, or space services, were 
discharged or released therefrom under a condition that is not 
honorable but is also not (A) a dishonorable discharge or (B) a 
discharge by court-martial; who (3) is not enrolled in the health care 
system established by section 1705 of title 38 U.S.C.; and (4)(A)(i) 
served in the Armed Forces for a period of more than 100 cumulative 
days; and (ii) was deployed in a theater of combat operations, in 
support of a contingency operation, or in an area at a time during 
which hostilities are occurring in that area during such service, 
including by controlling an unmanned aerial vehicle from a location 
other than such theater or area; or (B) while serving in the Armed 
Forces, was the victim of a physical assault of a sexual nature, a 
battery of a sexual nature, or sexual harassment (as defined in section 
1720D(f) of title 38 U.S.C.). Rather than restating these requirements 
from statute, Sec.  17.1210(a)(2) will reference section 1720I(b) in 
the event such qualifying eligibility under the statute may change.
    VA believes it is important to avoid delays in receipt of emergent 
suicide care if an individual's status as a veteran or status as 
described in section 1720I(b) cannot be confirmed upon a determination 
of acute suicidal crisis or prior to the need to initiate the provision 
of care. Therefore, Sec.  17.1210(b) will establish that VA may 
initiate the provision of emergent suicide care for an individual in 
acute suicidal crisis prior to that individual's status under Sec.  
17.1210(a)(1) or (2) being confirmed. If VA is unable to confirm an 
individual's status under paragraph (a)(1) or (2) of this section, and 
such individual is not otherwise eligible for care under another VA 
authority, VA shall charge that individual for the care provided 
consistent with 38 CFR 17.102(a) and (b)(1), which are regulatory 
provisions applicable to VA's provision of care to individuals later 
found to be ineligible.

17.1215 Periods of Emergent Suicide Care

    Section 17.1215 will establish criteria related to the length of 
time an eligible individual will be provided emergent suicide care, 
consistent with section 1720J(c).
    Paragraph (a) will establish that, unless extended under paragraph 
(b), emergent suicide care will be provided to an eligible individual 
under Sec.  17.1210 from the date acute suicidal crisis is determined 
to exist (as determined to exist by a trained crisis responder or 
health care provider, per the definition of acute suicidal crisis in 
Sec.  17.1205): (1) through inpatient care or crisis residential care, 
as long as the care continues to be clinically necessary, but not to 
exceed 30 calendar days; or (2) If inpatient care or crisis residential 
care is unavailable, or if such care is not clinically appropriate, 
through outpatient care, as long as the care continues to be clinically 
necessary, but not to exceed 90 calendar days. The 30-day limitation 
for a period of inpatient or crisis residential care in Sec.  
17.1215(a)(1) is required by section 1720J(c)(1)(A), and the 90-day 
period limitation for outpatient care in Sec.  17.1215(a)(2) is 
required by section 1720J(c)(1)(B). Section 17.1215(b) will permit VA 
to extend either of these limited timeframes in the event VA determines 
that an individual continues to require care to address the effects of 
an acute suicidal crisis, consistent with section 1720J(c)(2).
    Section 17.1215(a)(1) and (2) will establish the 30- and 90-day 
time limits as calendar day limits. There is no indication in section 
1720J that these time limits should be measured in business days, and 
calendar days is the reasonable measurement in the context of 
furnishing emergent suicide care because the risk of self-harm and 
stabilization of an individual's condition continues despite weekend 
days or holidays. We note that Sec.  17.1215(b) will allow an extension 
of the timeframes in the event VA determines the individual continues 
to require care to address the effects of acute suicidal crisis and, 
therefore, requires additional emergent suicide care.
    Section 17.1215(a)(1) and (2) will establish the availability of 30 
calendar days of inpatient and crisis residential care, as well as 90 
days of outpatient care, instead of only one type of care (inpatient/
residential versus outpatient) being available for an individual 
eligible under Sec.  17.1210. We do not interpret the word ``or'' in 
section 1720J(c)(1)(A) to mean that outpatient care under section 
1720J(c)(1)(B) is available only if an individual did not receive 
inpatient or crisis residential care. Rather, we interpret that 
sections 1720J(c)(1)(A) and (B) should be read together to afford an 
individual the opportunity to receive inpatient care (except if such 
care is not available or is inappropriate) but not to prevent such an 
individual from then receiving outpatient care to ensure they remain 
stable. Even if an individual is medically stable for discharge from an 
inpatient or crisis residential care setting, continued treatment after 
discharge from a facility may be necessary to prevent immediate relapse

[[Page 2530]]

into a new or worsened state of crisis or to otherwise provide 
clinically necessary care to address the effects of the acute suicidal 
crisis. Indeed, the definition of crisis stabilization care in Sec.  
17.1205 provides that such care is not only that which ensures, to the 
extent practicable, immediate safety but is also care that ``reduces: 
the severity of stress, [and] the need for urgent care. . . .''. 
Therefore, VA will not regulate outpatient care to be solely available 
as an alternative to inpatient or crisis residential care, as we 
envision nearly all individuals in acute suicidal crisis will require 
some level of emergent suicide care on an inpatient basis to be 
followed by care on an outpatient basis.
    Paragraph (b) in Sec.  17.1215 will permit the 30 and 90 calendar 
day timeframes in Sec.  17.1215(a)(1) and (2) to be extended if VA 
determines that an individual continues to require care to address the 
effects of the acute suicidal crisis. This language is consistent with 
section 1720J(c)(2), where only the Secretary [of VA] is authorized to 
extend a period of care beyond the 30 or 90 days. Although we recognize 
that non-VA health care providers may be able to determine if an 
individual continues to require care to address the effects of the 
acute suicidal crisis upon the expiration of a 30-day or 90-day 
timeframe, such an extension of care would still need to be approved by 
VA as clinically necessary before VA would pay or reimburse for the 
additional care. This would not necessarily mean that VA's approval of 
an extension must always occur prior to care being extended; VA would 
not want to create situations where administrative matters could delay 
the extension of required care. Rather, VA would only pay or reimburse 
for extensions of care if VA found such extensions to be warranted. The 
process of non-VA health care providers submitting claims for payment 
for providing emergent suicide care is discussed below in the section 
related to Sec.  17.1225. In that process, we would expect that, in 
most cases, non-VA providers would submit requests for extensions of 
care to VA prior to a 30- or 90-day period of care lapsing.

Sec.  17.1220 Provision of Emergent Suicide Care

    As stated earlier in the preamble we will not specifically regulate 
any distinct modalities, therapies, or treatments as falling under or 
being excluded from the meaning of the term emergent suicide care, 
because we do not want to unduly limit the provision of care that will 
vary based on the needs of individuals in acute suicidal crisis. 
However, we do not want this lack of specificity to imply that any type 
of care or service that may be recommended would be provided by VA as 
emergent suicide care. To better characterize the types of care that 
will be provided, we interpret the phrases ``immediate safety'' and 
``reduce severity'' from the definition of crisis stabilization care, 
which is incorporated into the definition of emergent suicide care in 
Sec.  17.1205, to enable VA to provide care and services that are 
needed to immediately stabilize an individual's vital signs and ensure 
their physical safety, as well as care and services to reduce the 
severity of symptoms related to the acute suicidal crisis. Such care 
can include medical and surgical services as well as mental health 
services. For instance, an individual in acute suicidal crisis could 
require emergency room care to stabilize bleeding from a self-inflicted 
injury and then require inpatient hospitalization to further monitor 
vitals and personal safety. Upon discharge from the hospital, this 
individual could then require some level of outpatient care to attend 
group or individual mental health therapy, as well as receive 
prescription medications, to reduce the severity of symptoms related to 
the acute suicidal crisis.
    As stated above, while VA is interpreting emergent suicide care 
more broadly than that which is immediately necessary to stabilize an 
individual, we do not want to imply that any type of care or service 
will be covered. Therefore, Sec.  17.1220(a) will establish that 
emergent suicide care will be provided to individuals eligible under 
Sec.  17.1210 only if it is determined by a health care provider to be 
clinically necessary and in accord with generally accepted standards of 
medical practice. This language will allow clinicians to make 
appropriate decisions about what care should be provided. The types of 
care described in the preceding paragraph, for instance, would be 
clinically necessary and generally in accord with the standards of 
medical practice of emergent care and supportive care after an 
emergency. To further ensure the safety and appropriateness of emergent 
suicide care provided under these regulations, Sec.  17.1220(b) will 
establish that prescription drugs, biologicals, and medical devices 
that may be provided during a period of emergent suicide care under 
Sec.  17.1215 must be approved by the Food and Drug Administration, 
unless the treating VA facility or non-VA facility is conducting formal 
clinical trials under an Investigational Device Exemption or an 
Investigational New Drug application, or the drugs or biologicals are 
prescribed under a compassionate use exemption. VA regulates this same 
general restriction for FDA-approval with certain caveats under the 
medical benefits package available to all enrolled veterans in 38 CFR 
17.38, and we find it to be reasonable to apply to this program of 
emergent suicide care.

Sec.  17.1225 Payment or Reimbursement for Emergent Suicide Care

    Section 17.1225 will establish criteria related to VA's payment or 
reimbursement of emergent suicide care, consistent with sections 
1720J(d) and (f).
    We will first discuss the provisions established in 1720J(f) 
related to the prohibitions on charge for individuals who are eligible 
to receive emergent suicide care under section 1720J. Section 
1720J(f)(1)(A) establishes that if VA provides care to an eligible 
individual under section 1720J(a) (meaning VA directly furnishes such 
care, pays for such care furnished in a non-VA facility, or reimburses 
an eligible individual for care that was furnished in a non-VA 
facility), VA may not charge the eligible individual for any costs of 
such care. Paragraph (a) of Sec.  17.1225 will therefore state that VA 
may not charge individuals eligible under Sec.  17.1210 for care 
received under Sec.  17.1215, and Sec.  17.1225(a)(1) and (a)(2) will 
more specifically characterize this lack of charge in the context of 
care VA furnishes directly in a VA facility as compared to care 
furnished in a non-VA facility, respectively.
    Paragraph (a)(1) of Sec.  17.1225 will state that for care 
furnished in a VA facility, VA will not charge any copayment or other 
costs that would otherwise be applicable under chapter 17 of 38 CFR. 
Because veterans eligible under 17.1210(a)(1) may be subject to 
copayments for other types of care they received from VA, we will 
further amend applicable VA copayment regulations at Sec. Sec.  17.108 
and 17.110 (related to veteran copayments for inpatient and outpatient 
care, and for medications, respectively) to ensure that veterans who 
are eligible for emergent suicide care under section 1720J(b)(1) and 
Sec.  17.1210(a)(1) are not subject to charges for such care furnished 
in a VA facility. Former members of the Armed Forces receiving care 
under 38 U.S.C. 1720I are not subject to VA's copayments so no further 
exceptions are needed. We note that this prevention of charge to such 
individuals will only apply to the extent they were eligible under 
Sec.  17.1210(a); if VA is not able to confirm eligibility under Sec.  
17.1210(a),

[[Page 2531]]

then VA shall charge an individual under Sec.  17.1210(b) (at charges 
consistent with 38 CFR 17.102(a) and (b)(1)).
    Paragraph (a)(2) of Sec.  17.1225 will establish that for care 
furnished in a non-VA facility, VA will either: (i) pay for the care 
furnished, subject to paragraphs (b)-(d) of Sec.  17.1225, or (ii) 
reimburse an eligible individual under Sec.  17.1210 for the costs 
incurred by the individual for the care received, subject to paragraph 
(e) of Sec.  17.1225. The language in Sec.  17.1225(a)(2)(i) and (ii) 
implements VA's payment and reimbursement of emergent suicide care 
under 1720J(a)(2)-(3) and the prohibition of charge under section 
1720J(f)(A).
    Paragraphs (b) through (d) of Sec.  17.1225 will further outline 
parameters for VA's payment of care, consistent with provisions in 
section 1720J(f)(2). Section 1720J(f)(2)(A) requires VA to reimburse a 
non-VA facility for the reasonable value of emergent suicide care if VA 
pays for such care to be provided in a non-VA facility under section 
1720J(a)(2), and section 1720J(f)(2)(B)(i) further provides that VA may 
determine such reimbursement amounts in a similar manner as VA 
determines reimbursement amounts for medical care and services provided 
in non-VA facilities under any other provision of chapter 17 of title 
38 U.S.C. We interpret the provisions of section 1720J(f)(2)(A) and 
(f)(2)(B)(i) together to allow VA to establish rates it will pay for 
emergent suicide care provided in non-VA facilities in accordance with 
parameters VA has already established to pay for medical care provided 
in non-VA facilities. VA pays non-VA providers and facilities under the 
Veterans Community Care Program (VCCP) as established by 38 U.S.C. 
1703. Under that authority VA is required to purchase care through 
negotiated agreements. Therefore, when emergent suicide care is 
provided pursuant to a contract, VA will pay for that care in 
accordance with the terms of that contract.
    Unlike VCCP, it is possible that a non-VA provider or facility 
could provide emergent suicide care not pursuant to a contract, but 
still be eligible for payment from VA. In these instances, rather than 
looking to a different authority under which VA pays for medical care 
provided in non-VA facilities, VA will establish a payment structure 
that is substantively similar to the terms of its existing agreements 
for the purchase of care under VCCP when a provider or facility is not 
under contract with VA. This will establish parity in payments rates 
between contracted and non-contracted emergent suicide care, and a 
hierarchy of payment rates that will ensure that the public will be 
able to determine what the payment rates are and ensure that a rate 
always exists for any eligible care.
    Paragraph (b) of Sec.  17.1225 will therefore establish that the 
amounts paid by VA for care furnished under Sec.  17.1225(a)(2)(i) will 
either: (1) be established pursuant to contracts, or (2) if there no 
amount determinable under paragraph (b)(1) (e.g., there is no 
contract), VA will pay amounts as established in Sec.  17.1225(b)(2)(i) 
through (v).
    Depending on where the care was provided, and what pricing schedule 
amounts exist for the specific services provided, VA will pay the 
Alaska VA Fee Schedule Amount (as calculated pursuant to 38 CFR 
17.56(b)), the Medicare fee schedule or prospective payment system 
amount, the Critical Access Hospital rate, the VA Fee Schedule amount 
(as posted on VA.gov), or billed charges. The hierarchy established in 
Sec.  17.1225(b)(2)(i) through (v) is substantively similar to 
methodologies VA uses to calculate payment rates for care purchased 
under an agreement and furnished to veterans by non-VA providers and 
facilities, and we believe is reasonable to apply when emergent suicide 
care is furnished not pursuant to a contract.
    Paragraph (c) of Sec.  17.1225 will establish that payment by VA 
under Sec.  17.1225(a)(2)(i) (i.e., payment for emergent suicide care 
provided in non-VA facilities) shall, unless rejected and refunded 
within 30 calendar days of receipt, extinguish all liability on the 
part of the individual who received care, and that neither the absence 
of a contract or agreement between the Secretary and the provider nor 
any provision of a contract, agreement, or assignment to the contrary 
shall operate to modify, limit, or negate this requirement. This 
language is consistent with section 1720J(f)(2)(B)(ii), which 
establishes that the requirements of section 1725(c)(3) will apply with 
respect to payments VA makes under section 1720J(f)(2)(A) (i.e., those 
payments VA makes for emergent suicide care provided in a non-VA 
facility). Section 1725(c)(3) establishes that payment by VA on behalf 
of a veteran to a provider of emergency treatment shall, unless 
rejected and refunded by the provider within 30 days of receipt, 
extinguish any liability on the part of the veteran for that treatment, 
and that neither the absence of a contract or agreement between VA and 
the provider nor any provision of a contract, agreement, or assignment 
to the contrary shall operate to modify, limit, or negate this 
requirement.
    Paragraph (d) of Sec.  17.1225 will establish criteria to obtain 
payment from VA for emergent suicide care provided in a non-VA 
facility. Although section 1720J does not contain language related to 
such criteria (there is no language related to the submission of any 
particular billing or claims information to VA, in any specific format 
or within a certain timeframe), minimal regulation is necessary to 
provide a framework for submission of information to be reviewed by VA. 
Notably, section 1720J only refers to VA payment for emergent suicide 
care to non-VA facilities (see 1720J(f)(2)). However, to ensure we 
capture all potential sources through which such care may be provided 
in non-VA facilities and for which VA may pay, Sec.  17.1225(d) will 
establish that either a health care provider or a non-VA facility (as 
those terms are defined in Sec.  17.1205) may obtain payment from VA. 
Paragraph (d)(1) will address care furnished pursuant to a contract 
with VA, and paragraph (d)(2) will address when care is not furnished 
pursuant to a contract.
    Paragraph (d)(1) of Sec.  17.1225 will establish that health care 
providers and non-VA facilities who provide emergent suicide care 
pursuant to a contract will follow all applicable provisions and 
instructions in such contract to receive payment. Paragraph (d)(2) will 
establish that if the care was not provided pursuant to a contract, 
providers or facilities will submit to VA a standard billing form and 
other information as required no later than 180 calendar days from the 
date the care was furnished. We will not state a specific form name or 
number in Sec.  17.1225(d)(2) to avoid having to revise our regulations 
if the form may change in the future. However, paragraph (d)(2) will 
further provide a website to locate more specific procedures and 
instructions for submission of that form and other information within 
the 180-day timeframe. The 180-day timeframe in which to submit to VA 
information for payment is consistent with the timeframe that non-VA 
entities or providers must submit claims for payment to VA for hospital 
care or medical services furnished in non-VA facilities under 38 U.S.C. 
1703D(b). Section 1703D is applicable to all such care that VA is 
authorized to provide under chapter 17 of 38 U.S.C., including 1720J.
    Section 1720J(d) does require an eligible individual who receives 
emergent suicide care at a non-VA facility (or a person acting on 
behalf of the individual) to notify VA of such care

[[Page 2532]]

within seven days of admission to such facility. We interpret this 
provision to evidence Congressional intent that, if VA will be 
responsible for payment of care in a non-VA facility, VA must have 
reasonable notice of the care having been initiated. Without such 
notice, VA will not be able to: confirm eligibility for such care; 
evaluate whether care that has or will be furnished meets the 
definition of emergent suicide care and is generally in accord with 
standards of medical practice; determine whether an extension of 
emergent suicide care might be warranted; or coordinate for potential 
continued care (for which the individual may be eligible) after 
emergent suicide care is no longer necessary. However, section 
1720J(f)(4) also provides that VA may not charge an eligible individual 
for any cost of emergent suicide care provided solely by reason of VA 
not having been notified of such care within the seven days pursuant to 
section 1720J(d). We interpret the language in section 1720J(f)(4) to 
mean that VA may not itself charge an eligible individual or hold them 
liable for the costs of emergent care provided in a non-VA facility for 
lack of notice, such that VA may not regulate a seven-day notice 
requirement with regards to limiting or barring payment to non-VA 
providers for emergent suicide care furnished in a non-VA facility. 
Therefore, VA has elected not to regulate any notice requirement. 
However, VA will make materials available on its public facing websites 
to communicate the importance of timely notice to VA of emergent 
suicide care received at a non-VA facility (as VA does for its other 
programs of emergency care) for purposes of care coordination and 
timely consideration of factors to support VA's payment of or 
reimbursement for such emergent suicide care.
    Paragraph (e) of Sec.  17.1225 will implement the requirement in 
section 1720J(a)(3) that VA must reimburse an eligible individual for 
emergent suicide care provided in a non-VA facility. Consistent with 
the rationale expressed above, Sec.  17.1225(e) will mirror language in 
Sec.  17.1225(d)(2), to establish that individuals eligible under Sec.  
17.1210 must submit to VA a standard billing form and other information 
as required no later than 180 calendar days from the date the 
individual paid for emergent suicide care to obtain reimbursement from 
VA. Paragraph (e) will also contain language to direct individuals to a 
VA website to obtain more specific information related to the specific 
billing form and other required information, as well as submission 
procedures, to obtain reimbursement. Although individuals eligible 
under Sec.  17.1210 may not themselves be non-VA entities or providers 
as contemplated under the section 1703D(b) requirement to submit claims 
information within 180 days, we nonetheless find this timeframe 
reasonable, and section 1720J does not contain language that 
specifically addresses the timeframe in which information must be 
submitted to VA for purposes of reimbursement. We also note that we do 
not anticipate many reimbursement requests to be submitted to VA, as we 
believe a majority of health care providers and non-VA facilities (as 
those terms are defined in Sec.  17.1205) will submit claims for 
payment to VA directly for emergent suicide care furnished in non-VA 
facilities.
    Paragraph (f) of Sec.  17.1225 will establish that VA may recover 
costs of care it has paid or reimbursed under Sec.  17.1225(a)(2)(i) 
and (ii), other than for such care for a service-connected disability, 
if the individual who received the care is entitled to the care (or 
payment of the care) under a health plan contract (as that term is 
defined in section 1725(f)(2), as referenced in 1720J(h)(5) and Sec.  
17.1205). This language is consistent with section 1720J(f)(3), which 
authorizes VA to recover the costs of emergent suicide care (other than 
for a service-connected disability) if the individual that received the 
care is entitled to receive it or have it paid for under a health plan 
contract. Paragraph (f) will further provide that such recovery would 
generally follow VA regulations at 38 CFR 17.100 through 17.106, which 
implement VA's right under 38 U.S.C. 1729 to recover from a third party 
the charges for care or services that VA furnished or paid under 
chapter 17 of title 38 U.S.C., to the extent the recipient of such 
services would be eligible to receive payment for the care or services 
from such third party if VA had not already furnished or paid. We 
believe reference to the regulations that implement recovery under 
section 1729 is reasonable to inform VA's recovery of costs for 
emergent suicide care because section 1729 applies to all care and 
services that VA is obligated by law to furnish or pay for under 
chapter 17 of title 38 U.S.C., and section 1720J(f)(3) does not 
otherwise expressly require VA to follow any specific VA statute or 
regulations related to recovery of costs for care and services 
furnished or paid.

Sec.  17.1230 Payment or Reimbursement for Emergency Transportation

    Section 17.1230 will establish criteria related to VA's payment or 
reimbursement of emergency transportation to a facility for the receipt 
of emergent suicide care, consistent with sections 1720J(f)(1)(B).
    Section 1720J(f)(1)(B) provides that VA will pay the costs of 
emergency transportation to a facility for emergent suicide care, as 
such costs are determined pursuant to 38 U.S.C. 1725, to the extent 
practicable. Although section 1720J does not further define the term 
``emergency transportation,'' we believe it is reasonable to 
characterize it as an ambulance or air ambulance, as these are common 
transports for individuals to receive emergent care such as emergent 
suicide care. We also believe it is reasonable to interpret that 
emergency transport can be furnished to either a VA or a non-VA 
facility, as those are the two types of facilities where section 1720J 
authorizes care to be furnished (see section 1720J(a), (d), and (f)). 
Therefore, Sec.  17.1230(a) will state that VA will pay or reimburse 
for the costs of emergency transportation (i.e., ambulance or air 
ambulance) to a VA facility or non-VA facility for the provision of 
emergent suicide care to an eligible individual under Sec.  17.1210.
    The language in section 1720J(f)(1)(B) provides that VA will pay 
for the costs of emergency transportation as such costs are determined 
pursuant to 38 U.S.C. 1725, to the extent practicable. Section 1725 
establishes VA's authority to pay or reimburse for the reasonable value 
of emergency treatment furnished in a non-VA facility to a veteran for 
emergency care that is not associated with a service-connected 
condition. Notably, section 1725 does not contain language related to 
VA paying or reimbursing for emergency transportation that is necessary 
to receive authorized emergency care. However, VA regulates the 
provision of emergency transportation necessary to receive emergency 
care furnished under section 1725 (in 38 CFR 17.1003) and regulates a 
methodology to calculate rates VA will pay or reimburse for such 
transportation (in 38 CFR 17.1005). Therefore, we interpret section 
1720J(f)(1)(B) to authorize VA to calculate the costs VA will pay or 
reimburse for emergency transportation necessary to receive emergent 
suicide care under section 1720J(a) pursuant to 38 CFR 17.1005, to the 
extent practicable. Because VA finds it practicable to apply Sec.  
17.1005 to emergency transportation necessary to receive emergent 
suicide care,

[[Page 2533]]

Sec.  17.1230(a)(1) will establish that for claims submitted by 
providers of emergency transportation, rates of payment for 
transportation under Sec.  17.1230(a) will be calculated as they are 
under 38 CFR 17.1005(a)(1) through (3). We note that Sec.  17.1005(a) 
establishes the general payment limitations and parameters to calculate 
payments, although we believe only paragraphs (a)(1)-(a)(3) would be 
applicable for emergency transportation necessary to receive emergent 
suicide care (and the remainder of Sec.  17.1005(b) through (d) 
establishes other substantive restrictions that would not apply in the 
context of emergency transportation for emergent suicide care under 
Sec. Sec.  17.1200 through 17.1230). Section 17.1230(a)(1) would 
further clarify that, for purposes of Sec.  17.1230, the term emergency 
treatment in Sec.  17.1005(a) should be read to mean emergency 
transportation. Similar to reimbursement for emergent suicide care 
under Sec.  17.1225, Sec.  17.1230(a)(2) will establish that for claims 
of reimbursement for emergency transportation from individuals eligible 
under Sec.  17.1210, VA will reimburse the costs such individuals 
incurred for the emergency transportation.
    To maintain parity in claims processing between the emergent 
suicide care and the emergency transportation necessary to receive such 
care, Sec.  17.1230(b) and (c) will establish essentially the same 
procedures that must be followed in Sec.  17.1225(d)(2) and (e) to be 
paid or reimbursed by VA for the emergent suicide care itself. 
Paragraphs (b) and (c) of Sec.  17.1230 will state that, to obtain 
payment or reimbursement (respectively) for emergency transportation 
furnished under paragraph (a) of this section, the provider of such 
services or the individual eligible to receive reimbursement for 
services must submit to VA a standard billing form and other required 
information no later than 180 calendar days from the date the services 
were furnished or the date that the individual paid for the services, 
and that submission instructions to include required form(s) and other 
information can be found at www.va.gov.
    Lastly, we will reiterate in Sec.  17.1230(d) the same requirement 
from Sec.  17.1225(e), that payment by VA for emergency transportation 
shall, unless rejected and refunded within 30 calendar days of receipt, 
extinguish all liability on the part of the individual who received 
care, and that no provision of a contract, agreement, or assignment to 
the contrary shall operate to modify, limit, or negate this 
requirement. Section 17.1230(d) will apply this requirement to VA 
payments for emergency transportation, although the requirement in 
section 1720J(f)(2)(B)(ii) relates only to payments VA makes for 
emergent suicide care in a non-VA facility under section 
1720J(f)(2)(A). However, we do not read section 1720J to otherwise 
prevent VA from applying this same requirement to the emergency 
transportation necessary to receive emergent suicide care, and we 
believe is reasonable to ensure that the individual who received such 
care is not subject to any potential balance billing for associated 
emergency transportation.

Administrative Procedure Act

    The Administrative Procedure Act (APA), codified in part at 5 
U.S.C. 553, generally requires agencies publish substantive rules in 
the Federal Register for notice and comment.
    However, pursuant to 5 U.S.C. 553(b)(B), general notice and the 
opportunity for public comment are not required with respect to a 
rulemaking when an ``agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' In accordance with 5 
U.S.C. 553(b)(B), the Secretary has concluded that there is good cause 
to publish this rule without prior opportunity for public comment. This 
rule implements the mandates of 38 U.S.C. 1720J to establish a new 
program to provide emergent suicide care to ensure, to the extent 
practicable, the immediate safety and reduced distress of an eligible 
individual in acute suicidal crisis.
    Suicide is a national public health concern, and it is preventable. 
The rate of veteran suicide in the United States remains high, despite 
great effort. As detailed in VA's 2021 National Veteran Suicide 
Prevention Annual Report, the average number of veteran suicide deaths 
per day in 2019 was 17.2. (Available online: https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021-National-Veteran-Suicide-Prevention-Annual-Report-FINAL-9-8-21.pdf). Of those 17.2 
deaths per day, 6.8 were veterans who recently used VA health care 
(that is, these veterans had received VA health care services within 
the preceding two years) and 10.4 were veterans who had not recently 
used VA health care. See https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021-National-Veteran-Suicide-Prevention-Annual-Report-FINAL-9-8-21.pdf. There has also been an increase in call volume to the 
Veterans Crisis Line (VCL). In fiscal year (FY) 2019, VCL answered an 
average daily call volume of 1590.67 calls compared with 1765.02 in FY 
2020 and 1807.52 in FY 2021, with VCL call volume increasing over 22% 
in direct-date comparisons from FY 2019 to FY 2021. Additionally, as of 
July 16, 2022, the new National Suicide Prevention Hotline number (988) 
has a feature to connect veterans to the Veterans Crisis Line, which 
may also encourage individuals who are veterans but do not seek VA care 
to be made aware of emergent suicide care under this program. This rule 
will also implement payment or reimbursement of emergent suicide care 
for veterans regardless of enrollment status, to include costs 
associated with emergency transportation to receive such care, which VA 
believes will assist more veterans and former service members in 
seeking care to prevent suicide.
    Veterans, in particular, may be uniquely vulnerable to negative 
mental health effects of the Coronavirus Disease-2019 (COVID-19) 
pandemic such as suicidality due to their older age, previous trauma 
exposures, and higher pre-pandemic prevalence of physical and 
psychiatric risk factors and conditions. See Na, P.J., Tsai, J., Hill, 
M.L., Nichter, B., Norman, S.B., Southwick, S.M., & Pietrzak, R.H. 
(2021). Prevalence, risk and protective factors associated with 
suicidal ideation during the COVID-19 pandemic in U.S. military 
veterans with pre-existing psychiatric conditions. Journal of 
Psychiatric Research, 137, 351-359. In an analysis of data from the 
National Health and Resilience in Veterans Study, researchers found 
that 19.2% of veterans screened positive for suicidal ideation during 
the pandemic, and such veterans had lower income, were more likely to 
have been infected with COVID-19, reported greater COVID-19-related 
financial and social restriction stress, and increases in psychiatric 
symptoms and loneliness during the pandemic when compared to veterans 
without suicidal ideation. See the National Health and Resilience in 
Veterans Study. Additionally, they found that among veterans who were 
infected with COVID-19, those aged 45 or older and who reported lower 
purpose in life were more likely to endorse suicidal ideation. See the 
National Health and Resilience in Veterans Study. These researchers 
noted that monitoring for suicide risk and worsening psychiatric 
symptoms in older veterans who have been infected with COVID-19 may be 
important, and that interventions that enhance purpose in life may help 
protect against suicidal ideation in this population.

[[Page 2534]]

    Furthermore, studies have shown increased rates of suicide after 
pandemics such as the 1918 Influenza (H1N1) pandemic and the 2003 
Severe Acute Respiratory Syndrome (SARS) outbreak, in which increased 
risk factors associated with negative impacts of pandemics were 
believed to contribute to suicide. See Wasserman IM. The impact of 
epidemic, war, prohibition and media on suicide: United States, 1910-
1920. Suicide Life Threat Behav. 1992 Summer;22(2):240-54. PMID: 
1626335.; See also, Cheung YT., Chau PH., and Yip PS. A revisit on 
older adults' suicides and severe acute respiratory syndrome (SARS) 
epidemic in Hong Kong. Int J Geriatr Psychiatry. 2008; 23: 1231-1238. 
Thus, increased suicide death could occur after the COVID-19 pandemic 
unless action is taken. See Gunnell, D., Appleby, L., Arensman, E., 
Hawton, K., John, A., Kapur, N., Khan, M., O'Connor, R.C., & Pirkis, J. 
(2020). Suicide risk and prevention during the COVID-19 pandemic. The 
Lancet Psychiatry, 7(6), 468-471. Consistent with the recommendations 
of this research, this rule will support both VA and non-VA facilities 
in providing emergent suicide care, to enable more resources to reach 
veterans.
    It is critical that this rulemaking publish without delay and that 
the rule be effective upon publication, as the emergent suicide care 
will reach a specific population at risk of suicide, particularly those 
veterans who are not enrolled with VA, which is especially needed 
during the COVID-19 pandemic and the immediate period following this 
pandemic. Delay in implementing this rule would have a severe 
detrimental impact on the availability of health care for veterans in 
life threatening situations.
    The expanded eligibility for this care, the associated 
transportation to receive such care, and the prohibition on charge for 
the care are all unique factors that we believe will encourage 
individuals to seek care where they may not have previously. These 
unique factors, however, also created a need for VA to take additional 
time beyond the Congressional deadline in section 201(c) of the Act to 
complete the required policy analysis and decision-making processes 
that preceded this rule--this is particularly true because the Act 
requires VA not only to directly furnish emergent suicide care, but 
then also to pay and reimburse for such care furnished in non-VA 
facilities. VA did not want to implement this program of emergent 
suicide care piecemeal, and additional time beyond the Congressional 
deadline was needed to ensure VA could simultaneously furnish this care 
directly, as well as enable processes whereby the care could be paid 
for or reimbursed when furnished in non-VA facilities. For instance, VA 
has had to plan and initiate multiple systems changes to ensure that 
copayments or other potential costs are not charged to individuals who 
would be eligible for this care. Systems changes were also needed to 
recognize expanded eligibility for this care, particularly because such 
eligibility changes depending on whether an acute suicidal crisis is 
present or whether symptoms related to such crisis continue to require 
care under this program.
    For these reasons, the Secretary has concluded that ordinary notice 
and comment procedures would be impracticable and contrary to the 
public interest and is accordingly issuing this rule as an interim 
final rule. The Secretary will consider comments that are received 
within 60 days after the date that this interim final rule is published 
in the Federal Register and address them in a subsequent Federal 
Register document announcing a final rule incorporating any changes 
made in response to the public comments.
    For the reasons set forth above, the Secretary also 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.

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 has determined that 
this 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.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable 
to this rulemaking because notice of proposed rulemaking is not 
required. 5 U.S.C. 601(2), 603(a), 604(a).

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 interim final rule will have no such 
effect on State, local, and Tribal governments, or on the private 
sector.

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 interim final rule will impose new collections of information 
requirements and burden. Accordingly, under 44 U.S.C. 3507(d), VA has 
submitted a copy of this rulemaking action to OMB for review and 
approval. Notice of OMB approval for this information collection will 
be published in the Federal Register.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. Sections 17.1225 and 17.1230 
contain new collections of information under the Paperwork Reduction 
Act of 1995. If OMB does not approve the collections of information as 
requested, VA will immediately remove the provisions containing a 
collection of information or take such other action as is directed by 
OMB.
    Comments on the new collection of information contained in this 
rulemaking should be submitted through www.regulations.gov. Comments 
should indicate that they are submitted in response to ``RIN 2900-
AR50--Emergent Suicide Care'' and should be sent within 60 days of 
publication of this rulemaking. The collection of information 
associated with this rulemaking can be viewed at: www.reginfo.gov/public/do/PRAMain.
    A comment to OMB is best assured of having its full effect if OMB 
receives it

[[Page 2535]]

within 30 days of publication. This does not affect the deadline for 
the public to comment on the interim final rule.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collections of information contained in 38 CFR 17.1225 and 
17.1230 are described immediately following this paragraph, under their 
respective titles.
    Title: Submission of Medical Record Information Under the COMPACT 
Act.
    OMB Control No: 2900--(new).
    CFR Provisions: 38 CFR 17.1225 and 17.1230.
     Summary of collection of information: This amended 
collection requires providers of emergent suicide care in non-VA 
facilities, or providers of emergency transportation necessary to 
receive such care, pursuant to 38 U.S.C. 1720J, to submit to VA certain 
information to receive payment or reimbursement for the provision of 
such care or transportation.
     Description of need for information and proposed use of 
information: This collection of information is necessary to evaluate 
and determine eligibility for emergent suicide care and transportation 
and to ensure that any payment amounts are for the provision of such 
care in accordance with the parameters established in 38 CFR 17.1200-
17.1230.
     Description of likely respondents: Health care providers 
of emergent suicide care in non-VA facilities and providers of 
emergency transportation necessary to receive such care.
     Estimated number of respondents: 26,910 health care and 
transportation providers annually.
     Estimated frequency of responses: 3.4 annually.
     Estimated average burden per response: 5 minutes.
     Estimated total annual reporting and recordkeeping burden: 
7,624 hours.
     Estimated annual cost to respondents for the hour burdens 
for collections of information: $ 213,562.
    Title: VA form 10-320, Claim reimbursement form.
    OMB Control No: 2900--(new).
    CFR Provision: 38 CFR 17.1225 and 17.1230.
     Summary of collection of information: This new collection 
of information requires individuals eligible for emergent suicide care, 
and who have paid costs for such care or associated emergency 
transportation to receive such care, to submit to VA certain 
information to receive reimbursement for such costs incurred.
     Description of need for information and proposed use of 
information: This collection of information is necessary to evaluate 
and determine eligibility for emergent suicide care and to ensure that 
any reimbursement amounts are for the provision of such care in 
accordance with the parameters established in 38 CFR 17.1200-17.1230.
     Description of likely respondents: Individuals eligible 
under 38 CFR 17.1210 who have incurred costs for the provision of 
emergent suicide care in or associated emergency transportation to non-
VA facilities that VA must reimburse.
     Estimated number of respondents: 155.
     Estimated frequency of responses: 1.
     Estimated average burden per response: 10 minutes.
     Estimated total annual reporting and recordkeeping burden: 
26 hours.
     Estimated annual cost to respondents for the hour burdens 
for collections of information: $ 728.

Assistance Listings

    The Assistance listing number and title for the programs affected 
by this document is 64.009, Veterans Medical Care Benefits; 64.011--
Veterans Domiciliary Care; 64.012--Veterans Dental Care; 64.013--
Veterans Prescription Service; 64.014--Veterans Prosthetic Appliances; 
64.015--Veterans State Domiciliary Care; 64.026--Veterans State Nursing 
Home Care; 64.029--Veterans State Adult Day Health Care; 64.033--
Purchase Care Program; 64.040--CHAMPVA; 64.041--VHA Inpatient Medicine; 
64.042--VHA Outpatient Specialty Care; 64.043--VHA Inpatient Surgery; 
64.044--VHA Mental Health Residential; 64.045--VHA Home Care; 64.046--
VHA Outpatient Ancillary Services; 64.047--VHA Inpatient Psychiatry; 
64.048--VHA Primary Care; 64.049--VHA Mental Health clinics; 64.050--
VHA Community Living Center; 64.053--VHA Diagnostic Care.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996, also known as 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 Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, 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, 
Scholarships and fellowships, Travel and transportation expenses, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on August 11, 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 stated in the preamble, the Department of Veterans 
Affairs revises 38 CFR part 17 as set forth below:

PART 17--MEDICAL

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

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.37 is also issued under 38 U.S.C. 101, 1701, 1705, 
1710, 1720J, 1721, 1722.
* * * * *
    Section 17.108 is also issued under 38 U.S.C. 501, 1703, 1710, 
1725A, 1720J, and 1730A.
* * * * *
    Section 17.110 is also issued under 38 U.S.C. 501, 1703, 1710, 
1720D, 1720J, 1722A, and 1730A.
* * * * *

[[Page 2536]]

    Sections 17.1200 through 17.1230 are also issued under 38 U.S.C. 
1720J.
* * * * *

0
2. Amend Sec.  17.37 by adding paragraph (l) and removing the authority 
citation at the end of the section.
    The addition reads as follows:


Sec.  17.37   Enrollment not required--provision of hospital and 
outpatient care to veterans.

* * * * *
    (l) An individual may receive emergent suicide care pursuant to 38 
U.S.C. 1720J and 38 CFR 17.1200-17.1230.

0
3. Amend Sec.  17.108 by adding paragraph (e)(19) to read as follows:


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

* * * * *
    (e) * * *
    (19) Emergent suicide care as authorized under 38 CFR 17.1200-
17.1230.
* * * * *

0
4. Amend Sec.  17.110 by adding paragraph (c)(13) to read as follows:


Sec.  17.110   Copayments for medication.

* * * * *
    (c) * * *
    (13) Medication for an individual as part of emergent suicide care 
as authorized under 38 CFR 17.1200-17.1230.

0
5. Add an undesignated section heading and Sec. Sec.  17.1200 through 
17.1230 to read as follows:
* * * * *

Emergent Suicide Care

Sec.
17.1200 Purpose and scope.
17.1205 Definitions.
17.1210 Eligibility.
17.1215 Periods of emergent suicide care.
17.1220 Provision of emergent suicide care.
17.1225 Payment or reimbursement for emergent suicide care.
17.1230 Payment or reimbursement of emergency transportation.
* * * * *

Emergent Suicide Care


Sec.  17.1200   Purpose and scope.

    (a) Purpose. Sections 17.1200 through 17.1230 implement VA's 
authority under 38 U.S.C. 1720J to provide emergent suicide care.
    (b) Scope. If an individual is eligible under Sec.  17.1210, VA 
will provide emergent suicide care under Sec. Sec.  17.1200 through 
17.1230 and not under other regulations in title 38 CFR through which 
emergent or other care could be provided. Eligibility under Sec.  
17.1210, however, does not affect eligibility for other care under 
chapter 17 of title 38, U.S.C.


Sec.  17.1205   Definitions.

    For purposes of sections Sec. Sec.  17.1200 through 17.1230:
    Acute suicidal crisis means an individual was determined to be at 
imminent risk of self-harm by a trained crisis responder or health care 
provider.
    Crisis residential care means emergent suicide care provided in a 
residential facility other than a hospital (that is not a personal 
residence) that provides 24-hour medical supervision.
    Crisis stabilization care means, with respect to an individual in 
acute suicidal crisis, care that ensures, to the extent practicable, 
immediate safety and reduces: the severity of distress; the need for 
urgent care; or the likelihood that the severity of distress or need 
for urgent care will increase during the transfer of that individual 
from a facility at which the individual has received care for that 
acute suicidal crisis.
    Emergent suicide care means crisis stabilization care provided to 
an individual eligible under Sec.  17.1210 pursuant to a recommendation 
from the Veterans Crisis Line or when such individual has presented at 
a VA or non-VA facility in an acute suicidal crisis.
    Health care provider means a VA or non-VA provider who is licensed 
to practice health care by a State and who is performing within the 
scope of their practice as defined by a State or VA practice standard.
    Health-plan contract has the same meaning as that term is defined 
in 38 U.S.C. 1725(f)(2).
    Inpatient care means care received by an individual during their 
admission to a hospital.
    Non-VA facility means a facility that meets the definition in 38 
U.S.C. 1701(4).
    Outpatient care means care received by an individual that is not 
described within the definition of ``inpatient care'' under this 
section to include telehealth, and without the provision of room or 
board.
    Provide, provided, or provision means furnished directly by VA, 
paid for by VA, or reimbursed by VA.
    Trained crisis responder means an individual who responds to 
emergency situations in the ordinary course of their employment and 
therefore can be presumed to possess adequate training in crisis 
intervention.
    VA facility means a facility that meets the definition in 38 U.S.C. 
1701(3).
    Veterans Crisis Line means the hotline under 38 U.S.C. 1720F(h).


Sec.  17.1210   Eligibility.

    (a) An individual is eligible for emergent suicide care if they 
were determined to be in acute suicidal crisis and are either of the 
following:
    (1) A veteran as that term is defined in 38 U.S.C. 101; or
    (2) An individual described in 38 U.S.C. 1720I(b).
    (b) VA may initiate provision of emergent suicide care for an 
individual in acute suicidal crisis prior to that individual's status 
under paragraphs (a)(1) or (2) of this section being confirmed. If VA 
is unable to confirm an individual's status under paragraph (a)(1) or 
(2) of this section, VA shall bill that individual for the emergent 
suicide care provided consistent with 38 CFR 17.102(a) and (b)(1).


Sec.  17.1215   Periods of emergent suicide care.

    (a) Unless extended under paragraph (b) of this section, emergent 
suicide care will be provided to an individual eligible under Sec.  
17.1210 from the date acute suicidal crisis is determined to exist:
    (1) Through inpatient care or crisis residential care, as long as 
the care continues to be clinically necessary, but not to exceed 30 
calendar days; or
    (2) If care under paragraph (a)(1) of this section is unavailable, 
or if such care is not clinically appropriate, through outpatient care, 
as long as the care continues to be clinically necessary, but not to 
exceed 90 calendar days.
    (b) VA may extend a period under paragraph (a) of this section if 
such period is ending and VA determines that an individual continues to 
require care to address the effects of the acute suicidal crisis.


Sec.  17.1220   Provision of emergent suicide care.

    (a) Emergent suicide care will be provided to individuals eligible 
under Sec.  17.1210 only if it is determined by a health care provider 
to be clinically necessary and in accord with generally accepted 
standards of medical practice.
    (b) Prescription drugs, biologicals, and medical devices that may 
be provided during a period of emergent suicide care under Sec.  
17.1215 must be approved by the Food and Drug Administration, unless 
the treating VA facility or non-VA facility is conducting formal 
clinical trials under an Investigational Device Exemption or an 
Investigational New Drug application, or the drugs, biologicals, or 
medical devices are prescribed under a compassionate use exemption.

[[Page 2537]]

Sec.  17.1225   Payment or reimbursement for emergent suicide care.

    (a) VA will not charge individuals eligible under Sec.  17.1210 who 
receive care under Sec.  17.1215 any costs for such care.
    (1) For care furnished in a VA facility, VA will not charge any 
copayment or other costs that would otherwise be applicable under 38 
CFR chapter 17.
    (2) For care furnished in a non-VA facility, VA will either:
    (i) Pay for the care furnished, subject to paragraphs (b) through 
(d) of this section; or
    (ii) Reimburse an individual eligible under Sec.  17.1210 for the 
costs incurred by the individual for the care received, subject to 
paragraph (e) of this section.
    (b) The amounts paid by VA for care furnished under paragraph 
(a)(2)(i) of this section will:
    (1) Be established pursuant to contracts, or agreements, or
    (2) If there is no amount determinable under paragraph (b)(1) of 
this section, VA will pay the following amounts:
    (i) For care furnished in Alaska for which a VA Alaska Fee Schedule 
(see 38 CFR 17.56(b)) code and amount exists: The lesser of billed 
charges or the VA Alaska Fee Schedule amount. The VA Alaska Fee 
Schedule only applies to physician and non-physician professional 
services. The schedule uses the Health Insurance Portability and 
Accountability Act mandated national standard coding sets.
    (ii) For care not within the scope of paragraph (b)(2)(i) of this 
section, and for which an applicable Medicare fee schedule or 
prospective payment system amount exists for the period in which the 
service was provided (without any changes based on the subsequent 
development of information under Medicare authorities) (hereafter 
``Medicare rate''): The lesser of billed charges or the applicable 
Medicare rate.
    (iii) For care not within the scope of paragraph (b)(2)(i) of this 
section, furnished by a facility currently designated as a Critical 
Access Hospital (CAH) by CMS, and for which a specific amount is 
determinable under the following methodology: The lesser of billed 
charges or the applicable CAH rate verified by VA. Data requested by VA 
to support the applicable CAH rate shall be provided upon request. 
Billed charges are not relevant for purposes of determining whether a 
specific amount is determinable under the above methodology.
    (iv) For care not within the scope of paragraphs (b)(2)(i) through 
(iii) of this section and for which there exists a VA Fee Schedule 
amount for the period in which the service was performed: The lesser of 
billed charges or the VA Fee Schedule amount for the period in which 
the service was performed, as posted on VA.gov.
    (v) For care not within the scope of paragraphs (b)(2)(i) through 
(iv) of this section: Billed charges.
    (c) Payment by VA under paragraph (a)(2)(i) of this section shall, 
unless rejected and refunded within 30 calendar days of receipt, 
extinguish all liability on the part of the individual who received 
care. Neither the absence of a contract or agreement between the 
Secretary and the provider nor any provision of a contact, agreement, 
or assignment to the contrary shall operate to modify, limit, or negate 
this requirement.
    (d) To obtain payment under paragraph (a)(2)(i) of this section, a 
health care provider or non-VA facility must:
    (1) If the care was provided pursuant to a contract, follow all 
applicable provisions and instructions in such contract to receive 
payment.
    (2) If the care was not provided pursuant to a contract with VA, 
submit to VA a standard billing form and other information as required 
no later than 180 calendar days from the date services were furnished. 
Submission instructions, to include required forms and other 
information, can be found at www.va.gov.
    (e) To obtain reimbursement under paragraph (a)(2)(ii) of this 
section, an individual eligible under Sec.  17.1210 must submit to VA a 
standard billing form and other information as required no later than 
180 calendar days from the date the individual paid for emergent 
suicide care. Submission instructions, to include required forms and 
other information, can be found at www.va.gov.
    (f) VA may recover costs of care it has paid or reimbursed under 
paragraphs (a)(2)(i) and (ii) of this section, other than for such care 
for a service-connected disability, if the individual who received the 
care is entitled to the care (or payment of the care) under a health 
plan contract. Such recovery procedures will generally comply with 38 
CFR 17.100-17.106.


Sec.  17.1230   Payment or reimbursement of emergency transportation.

    (a) VA will pay or reimburse for the costs of emergency 
transportation (i.e., ambulance or air ambulance) to a VA facility or 
non-VA facility for the provision of emergent suicide care to an 
eligible individual under Sec.  17.1210.
    (1) For claims submitted by providers of emergency transportation, 
rates of payment for emergency transportation under paragraph (a) of 
this section will be calculated as they are under 38 CFR 17.1005(a)(1) 
through (3). For purposes of this section, the term ``emergency 
treatment'' in Sec.  17.1005(a) should be read to mean ``emergency 
transportation.''
    (2) For claims submitted by an individual eligible under Sec.  
17.1210, VA will reimburse for emergency transportation under paragraph 
(a) of this section the costs such individual incurred for the 
emergency transportation.
    (b) To obtain payment for emergency transportation furnished under 
paragraph (a) of this section, the provider of such transportation must 
submit to VA a standard billing form and other information as required 
no later than 180 calendar days from the date transportation was 
furnished. Submission instructions, to include required forms and other 
information, can be found at www.va.gov.
    (c) To obtain reimbursement for emergency transportation under 
paragraph (a) of this section, an individual eligible under Sec.  
17.1210 must submit to VA a standard billing form and other information 
as required no later than 180 calendar days from the date the 
individual paid for such transportation. Submission instructions, to 
include required forms and other information, can be found at 
www.va.gov.
    (d) Payment by VA under paragraph (a) of this section shall, unless 
rejected and refunded within 30 calendar days of receipt, extinguish 
all liability on the part of the individual who received care. No 
provision of a contact, agreement, or assignment to the contrary shall 
operate to modify, limit, or negate this requirement.

[FR Doc. 2023-00298 Filed 1-13-23; 8:45 am]
BILLING CODE 8320-01-P