[Federal Register Volume 88, Number 64 (Tuesday, April 4, 2023)]
[Rules and Regulations]
[Pages 19862-19873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06954]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AR48


Copayment Exemption for Indian Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with 
changes, a proposed rule to amend its medical regulations to implement 
a statute exempting Indian and urban Indian veterans from copayment 
requirements for the receipt of hospital care or medical services. This 
final rule also exempts such veterans from copayments for all urgent 
care visits.

DATES: This rule is effective April 4, 2023.

FOR FURTHER INFORMATION CONTACT: Mark Upton, Deputy to the Deputy Under 
Secretary for Health, Office of the Deputy Under Secretary for Health 
(10A), 810 Vermont Avenue NW, Washington, DC 20420, 202-461-7459. (This 
is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register (FR) on January 12, 2023, VA proposed to amend its medical 
regulations at Sec. Sec.  17.108, 17.110, 17.111, and 17.4600 of title 
38, Code of Federal Regulations (CFR) to exempt from copayments 
veterans who submit documentation to VA to demonstrate they are either 
Indian or urban Indian, as those terms are defined in section 4 of the 
Indian Health Care Improvement Act (further codified at 25 U.S.C. 
1603(13) and (28)), for hospital care or medical services received on 
or after January 5, 2022. 88 FR 2038. VA also proposed retroactive 
reimbursement for copayments already paid by these veterans for such 
care provided on or after January 5, 2022. VA provided a 30-day comment 
period, which ended on February 13, 2023. Forty-four comments were 
received, of which one was a duplicate comment, for a total of forty-
three unique comments. Nine commenters expressed support for the 
proposed rule in whole. VA appreciates these commenters' support and 
does not further address their comments below. The remaining commenters 
expressed concerns with the proposed rule in whole or in part, and 
their comments are addressed below by topic. As explained in more 
detail below, VA makes changes to the rule based on the comments.

Discrimination

    VA received several comments alleging that this copayment exemption 
is discriminatory and unfair to those

[[Page 19863]]

veterans who are not Indian or urban Indian. Commenters asserted that 
the proposed rule gives preference based on ethnicity or race and 
questioned why VA is not eliminating copayments for other veterans 
based on race, ethnicity, or sex. One commenter was neutral on the 
proposed rule, but asked VA to clarify why it was providing this 
copayment exemption to this group of veterans over other races. Some of 
these commenters also alleged that this rulemaking is part of a current 
political agenda. VA makes no changes to the rule based on these 
comments.
    Pursuant to section 1710(f) and (g) of title 38, United States Code 
(U.S.C.), VA must charge certain veterans a copayment for hospital 
care, nursing home care, and medical services furnished by VA, unless 
otherwise exempted under law. As VA explained in the proposed rule, 
Congress mandated that VA exempt from copayments for hospital care or 
medical services those veterans who are Indian or urban Indian, as such 
terms are defined in section 4 of the Indian Health Care Improvement 
Act (codified in 25 U.S.C. 1603). This mandate is codified in law at 38 
U.S.C. 1730A (as amended by section 3002 of the Johnny Isakson and 
David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 
2020 (the ``Act''), Pub. L. 116-315).
    The underlying bill, the Native American PACT Act (H.R. 4908) which 
became part of the Act, was separately passed by the U.S. House of 
Representatives on September 22, 2020. In support of this legislation, 
Democratic and Republican representatives explained Congress's 
rationale for introducing and passing this legislation. Representative 
Mark Takano explained, in pertinent part:

    The Federal Government has a legal and moral obligation to 
uphold its treaty obligations to Tribal nations, which include the 
provision of healthcare. Our responsibility to ensure care is 
compounded when American Indians and Alaska Natives serve this 
country in uniform . . . For far too many Native Americans, 
particularly those in rural areas, the copay burden is a barrier to 
care. These veterans, who may be unable to access specialty care 
from their Tribal health systems, are then unable to access VA due 
to cost. Eliminating the copay burden is a step toward upholding the 
treaties between the United States and Tribal nations while also 
bringing immediate relief to veterans unable to access care during 
these distressing times.

    See House Congressional Record dated September 22, 2020, H4678-
4679.
    Representative David P. Roe further stated, in pertinent part:

    [A]lmost a century ago, Congress passed the Snyder Act, which 
guaranteed healthcare to Native Americans free of charge. In 
recognition of that, the Native American PACT Act would prohibit VA 
from charging copayments to Native American veterans regardless of 
whether the care they receive from the VA is for a service-connected 
condition or not . . . [t]his bill would increase access to care for 
those brave veterans and create parity between the care provided to 
them through the VA, the Centers for Medicare and Medicaid Services, 
and the Indian Health Service. It would also uphold the United 
States Government's longstanding trust and treaty responsibilities 
to the Native American community. Id. at H4679.

    Thus, the Congressional record is clear that Congress's rationale 
for exempting Indian and urban Indian veterans from copayments was 
based on fulfilling the promise this country made to Tribal nations as 
part of its trust and treaty responsibilities to provide American 
Indians and Alaska Natives with free health care, increasing access to 
care, and supporting parity for the provision of care by VA and other 
Federal agencies. Furthermore, on numerous occasions, the United States 
Supreme Court specifically has upheld legislation that singles out 
American Indians or Alaska Natives for particular and special 
treatment. See, for example, Morton v. Mancari, 417 U.S. 535 (1974).
    To comply with the mandate in 38 U.S.C. 1730A, VA proposed to 
revise its regulations to exempt from copayments those veterans who are 
Indian or urban Indian as defined in 25 U.S.C. 1603(13) and (28). 
Unless explicitly allowed by law, VA cannot exempt from copayments 
other groups of veterans. See 38 U.S.C. 1710(f) and (g). Contrary to 
commenters' assertions, this copayment exemption for such individuals 
was not based on discrimination or VA showing preference for certain 
races or ethnicity, it was a requirement of law.
    In response to those commenters who suggest that this is part of a 
current political agenda, the copayment exemption mandated by section 
1730A was signed into law by then President Trump on January 5, 2021. 
As reflected in the excerpts from the Congressional record related to 
H.R. 4908 discussed further above, there was also bipartisan 
Congressional support for exempting Indian and urban Indian veterans 
from copayments. See also, Tester, Moran Introduce Bipartisan Bill to 
Increase Native American Veterans' Access to VA Health Care, Eliminate 
Copays, Nov. 18, 2020, https://www.veterans.senate.gov/2020/11/tester-moran-introduce-bipartisan-bill-to-increase-native-american-veterans-access-to-va-health-care-eliminate-copays.

Trust Responsibility

    Some commenters requested VA clarify in the rulemaking that the 
copayment exemption under 38 U.S.C. 1730A is due to the Federal 
government's trust responsibility. VA's specific statutory authority 
and mandate for the copayment exemption is 38 U.S.C. 1730A as amended 
by section 3002 of the Act. However, as discussed above, the 
Congressional history for this copayment exemption illustrates that 
Congress proposed this legislation in part based on a trust 
responsibility with American Indian and Alaska Native communities. As 
discussed below, VA considered this trust responsibility in the 
response to comments received that suggested VA exempt copayments for 
all urgent care visits.

Definition of Indian or Urban Indian

    One commenter supported using a definition of Indian used by the 
Indian Health Service (IHS) as such definition is familiar to Tribal 
members and would provide consistency, avoid confusion, and improve the 
tribes' ability to notify Tribal members of changes. Another commenter 
suggested that American Indian and Alaska Native veterans from a 
federally or State recognized Tribe or a Native Nation, or who are 
descendants of a Tribal or Native Nation member should be eligible for 
this copayment exemption. VA does not make any changes to the rule 
based on these comments.
    VA is using the definitions of Indian and urban Indian required by 
law for purposes of this rulemaking. Section 1730A of 38 U.S.C. was 
amended to add a copayment exemption for veterans who are either Indian 
or urban Indian, as further defined in 25 U.S.C. 1603(13) and (28). 88 
FR 2038-2039. Paragraph 13 of section 1603 defines the term Indians or 
Indian as any person who is a member of an Indian Tribe, as that term 
is further defined in section 1603(14), except that, for the purpose of 
25 U.S.C. 1612 and 1613, such terms shall mean any individual who: (1) 
irrespective of whether he or she lives on or near a reservation, is a 
member of a Tribe, band, or other organized group of Indians, including 
those tribes, bands, or groups terminated since 1940 and those 
recognized now or in the future by the State in which they reside, or 
who is a descendant, in the first or second degree, of any such member; 
(2) is an Eskimo or Aleut or other Alaska Native; (3) is considered by 
the Secretary of the Interior to be an Indian for any purpose; or (4) 
is determined to be an Indian pursuant to regulations

[[Page 19864]]

promulgated by the Secretary of Health and Human Services.
    Paragraph 28 of section 1603 defines the term urban Indian as any 
individual who resides in an urban center (as such term is further 
defined in section 1603(27)) and who meets at least one or more of the 
four criteria in the definition of Indian in 25 U.S.C. 1603(13) (as 
described above in a previous paragraph regarding the definition of 
Indians or Indian). Thus, these definitions apply to those eligible for 
the provision of healthcare by IHS and include those individuals the 
commenter references, such as members of federally and State recognized 
tribes and descendants of such members.
    To the extent the commenters are suggesting VA expand eligibility 
beyond those defined as Indian or urban Indian in 25 U.S.C. 1603(13) 
and (28), VA is unable to do so as the statute is clear that VA must 
use those definitions.

Documentation

    Several commenters had a variety of concerns related to the 
proposed requirement that veterans submit documentation to demonstrate 
they meet the definition of Indian or urban Indian. These commenters 
suggested that instead VA allow such veterans to self-attest that they 
meet the definition of Indian or urban Indian. As explained in more 
detail below, their concerns focused on evaluating and verifying 
documentation, the benefits of self-attestation, the Tribal 
consultation process, and acceptable forms of documentation. VA makes 
no changes to the rule based on these comments for the reasons 
explained below.

Evaluating and Verifying Documentation

    Some commenters were concerned that VA does not have the capability 
to receive, process, evaluate, and validate the documentation that VA 
proposes to require veterans submit in order to verify that they meet 
the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and 
(28). The commenters were particularly concerned given the diversity 
and volume of potential documents.
    VA will be able to properly evaluate the submitted documents to 
determine if a veteran meets the definition of Indian or urban Indian 
under 25 U.S.C. 1603(13) and (28). VA will have dedicated staff to 
perform this function who will receive robust training on the types of 
acceptable documentation and how to properly evaluate and verify such 
documentation. This will include input and guidance from VA's own 
Tribal experts, such as its Office of Tribal Government Relations and 
Office of Tribal Health. Collecting and evaluating documentation to 
determine an individual's membership in a Tribe is something that other 
agencies, such as IHS and the Bureau of Indian Affairs (BIA), as well 
as many American Indian and Alaska Native health organizations do. In 
fact, VA intends to mirror how IHS makes these determinations. VA does 
not believe it will be an undue burden on VA staff to perform these 
tasks. Other commenters were concerned that VA verifying and 
determining the legitimacy of the documents will usurp Tribal 
sovereignty. Another commenter also stated that there should not be an 
administrative burden put on Tribal enrollment staff to document a 
veteran's status as Indian or urban Indian.
    While there are 574 federally recognized tribes that may have 
different types of documentation, VA will defer to American Indian and 
Alaska Native Tribal governments regarding the documentation they issue 
to members of their Tribe. VA will accept such documentation as proof 
that a veteran meets the definition of Indian or urban Indian in 25 
U.S.C. 1603(13) and (28) for purposes of this copayment exemption. VA 
will not require American Indian and Alaska Native Tribal governments 
to issue specific documentation for the purpose of demonstrating that a 
member of the Tribe meets the definition of Indian or urban Indian. 
Therefore, VA will not be usurping Tribal sovereignty or imposing 
additional burdens on American Indian and Alaska Native Tribal 
governments to issue documentation other than what they already issue 
members of their Tribe. A Tribe's existing documentation of an 
individual's status as a member of a Tribe will be sufficient. 
Requiring submission of documentation also shows respect for American 
Indian and Alaska Native Tribal governments and acknowledges that the 
tribes determine who are members.

Benefits of Self-Attestation

    Some commenters supported self-attestation because they stated that 
other agencies use self-attestation. VA agrees that it is important for 
VA to understand how other agencies determine an individual's status as 
an Indian or urban Indian under 25 U.S.C. 1603(13) and (28). VA learned 
that IHS, BIA, and other American Indian health organizations require 
documentation in order to be eligible for their benefits and services. 
Therefore, for purposes of Federal benefits and services, tribes are 
familiar with providing their members with documentation and their 
members are familiar with providing documentation to Federal agencies 
to receive health care benefits.
    Some commenters raised concerns that some Indian and urban Indian 
veterans may face barriers in obtaining documentation due to 
homelessness, financial instability, moving during military service, 
and lack of resources or culturally competent representation which can 
discourage these veterans from seeking the copayment exemption. VA 
believes that submission of documentation will not be a burden on most 
such veterans since they already have this documentation or could 
easily obtain it. In addition, VA staff will be available to provide 
veterans with information on documentation that VA will accept for 
purposes of this copayment exemption and can assist veterans with 
reacquiring documentation they may have lost. VA will also proactively 
communicate with American Indian and Alaska Native veterans about this 
copayment exemption and how they may apply. Additionally, VA is engaged 
in a robust effort to educate all stakeholders about this copayment 
exemption and is committed to continued engagement with its 
stakeholders about how best to implement and educate others about the 
rule.
    Some commenters opined that self-attestation increases access to 
health care without compromising the integrity of VA's services. Other 
commenters stated that despite VA's concern that self-attestation may 
present an unreasonable risk that VA would provide the copayment 
exemption to veterans who do not meet the definition of Indian or urban 
Indian under 25 U.S.C. 1603(13) and (28), self-attestation would not 
present an unreasonable risk and that VA failed to provide any evidence 
of such unreasonable risk. The commenters further stated that existing 
authorities, such as 38 U.S.C. 6103 and 18 U.S.C. 1035, can help 
minimize risk of misrepresentation of a veteran's status as Indian or 
urban Indian in self-attestations.
    VA believes that self-attestation could result in veterans who are 
not eligible for the benefit erroneously receiving the benefit. VA has 
a responsibility to ensure that only those who are eligible for this 
copayment exemption receive it. As explained in the proposed rule, 
requiring documentation rather than self-attestation would allow VA to 
ensure, through audits, that it is fulfilling its duty to only exempt 
those veterans who are eligible pursuant to section 1730A. 88 FR 2040.
    VA is unable to audit the information provided in a self-
attestation without

[[Page 19865]]

additional documentation to support the self-attestation. Therefore 
would not be in a position to establish that a veteran accurately 
attested to being an Indian or urban Indian on the VA Forms 10-10EZ or 
10-10EZR without obtaining additional information if it were to adopt 
self-attestation. In this regard, while VA Forms 10-10EZ and 10-10EZR 
previously had a question about whether a veteran meets these 
definitions of Indian or urban Indian, that question was removed in 
February 2023. The current VA Form 10-10EZ does have a question on 
race, which includes American Indian or Alaska Native. However, VA Form 
10-10EZR does not. Regardless, if VA used either of these questions to 
establish a veteran met the definition of Indian or urban Indian, there 
would be no way to audit that attestation without requesting additional 
documentation. Requiring documentation allows VA to audit whether a 
veteran meets the definition of Indian or urban Indian in 25 U.S.C. 
1603(13) and (28) without the need to later collect more information.
    If VA allowed self-attestation only, it could result in those who 
are ineligible receiving the copayment exemption, and VA failing to 
fulfill its responsibilities under the law. While VA acknowledges that 
under certain existing authorities it is a violation of Federal law to 
knowingly or willingly make a false statement related to benefits, some 
veterans may genuinely believe they meet the definition of Indian or 
urban Indian under 25 U.S.C. 1603(13) and (28), but simply do not. 
Therefore, it would not be clear that these veterans were knowingly or 
willingly making a false statement or representation, and it is not 
certain that they would be deterred from indicating on the VA Form 10-
10EZ that they meet the definition.
    Several commenters recommended VA allow veterans to initially self-
attest they meet the definitions of Indian or urban Indian, after which 
the veteran can submit necessary documentation to show they meet the 
definitions within a certain period of time, which, as one of the 
commenters opined, could be extended if there was a good faith effort 
on the veteran's part to acquire the documentation. These commenters 
opined that this will allow VA to implement a policy where it can 
verify or review documentation later while ensuring that American 
Indian and Alaska Native veterans receive this copayment exemption 
immediately and do not encounter a barrier to care. One of these 
commenters suggested that if VA needs an additional document from a 
veteran who self-attests, the copayment exemption should remain in 
place until an appeal is completed.
    VA will be providing reimbursement retroactive to January 5, 2022, 
to eligible veterans after VA reviews the submitted documentation and 
updates the veteran's record to make them exempt from copayments. 
Therefore, VA does not believe allowing for self-attestation followed 
by documentation is necessary. These veterans will be reimbursed for 
copayments for care provided on or after January 5, 2022, regardless of 
when they submit their documentation. Thus, any hardship based on when 
they submit documentation will be reduced by VA's reimbursement once 
documentation is received.
    As discussed above, VA also does not believe that veterans should 
experience undue burden submitting documentation as they likely already 
have it or can easily obtain it, particularly as the documentation VA 
will accept includes those commonly issued by American Indian and 
Alaska Native Tribal governments to members of their tribes and are 
required by IHS to receive healthcare services.
    Additionally, allowing veterans to self-attest that they meet the 
definition of Indian or urban Indian and then provide additional 
documentation at a later date would create administrative and 
logistical challenges for VA and potential hardships for the veterans. 
If VA were to exempt a veteran based on self-attestation with 
additional documentation to follow at a later date, VA would have the 
added responsibility of tracking this preliminary eligibility and, in 
cases where a veteran did not submit the required additional 
documentation, VA would have to follow up with the veteran to request 
the documentation, potentially on several occasions. If VA ultimately 
does not receive acceptable documentation from the veteran, VA would 
have to collect from the veteran any copayments that had been 
inappropriately exempted, resulting in an added burden to VA and 
potential hardship for the veteran.

Tribal Consultation

    Several commenters alleged that VA mischaracterized or 
misrepresented the information it requested and received during Tribal 
consultation related to this rulemaking. These commenters opined that 
the questions posed by VA as part of Tribal consultation were narrower 
in scope than the definitions of Indian and urban Indian in 25 U.S.C. 
1603 and incorrectly framed the statutory language that authorizes the 
exception. These commenters also opined that VA's statement in the 
proposed rule that it published a notice regarding the documentation 
that VA can use to identify veterans who meet the definitions of Indian 
or urban Indian under 38 U.S.C. 1730A was inaccurate. These commenters 
further stated that this did not provide American Indian and Alaska 
Native Tribal government leaders with the opportunity to fully consider 
the extent of American Indian and Alaska Native veterans eligible for 
the copayment exemption or provide feedback on documentation that may 
be required to determine eligibility for the copayment exemption. The 
commenters were concerned that VA inappropriately and misleadingly 
claimed that American Indian and Alaska Native Tribal governments 
supported requiring all American Indian and Alaska Native veterans to 
submit documentation to determine eligibility for the copayment 
exemption although VA never posed this question during Tribal 
consultation. Thus, these commenters opined that VA improperly relied 
upon the feedback received during consultation to support its decision 
to require veterans submit documentation for purposes of this copayment 
exemption.
    In the Federal Register Notice (FRN) dated April 1, 2021, VA 
referenced the definitions of Indian and urban Indian as defined in 25 
U.S.C. 1603(3). Moreover, in the supplementary section of the FRN, VA 
explained the changes made to 38 U.S.C. 1730A by section 3002 of the 
Act to exempt from copayments those who are Indian or urban Indian as 
defined in section 4 of the Indian Health Care Improvement Act (25 
U.S.C. 1603). 86 FR 17267 (April 1, 2021). VA further stated that it 
was seeking input from Tribal governments, Indians, and urban Indians 
regarding documentation that can be used by VA's health care system to 
identify those veterans who are Indians or urban Indians (as defined in 
25 U.S.C. 1603). Id. VA further notes that section 1603(13) defines 
Indian, in pertinent part, to mean any person who is a member of an 
Indian Tribe. Thus, with regards to information that VA was seeking to 
determine eligibility for this copayment exemption, the FRN was not 
narrower than the statutory authority.
    Additionally, VA asked for input on specific documentation, as well 
as other information or documentation that is available for determining 
if a veteran is a member of an Indian Tribe, potential sources of the 
information or documentation, and how VA should determine whether a 
veteran is a member of an Indian Tribe (whether through documentation, 
self-certification, other methods). Id.

[[Page 19866]]

    As VA explained in the proposed rule, the majority of comments 
received during the Tribal consultation session and in the 30-day 
period after it, in which written comments could be submitted to VA, 
supported documentation, with some commenters providing examples of 
documentation VA could use. However, several commenters supported self-
attestation. To the extent that the request was not clear, VA provided 
an opportunity to submit comments during the April 29, 2021 Tribal 
consultation and for a period of 30 days after such Tribal consultation 
and to submit comments on the proposed rule. VA has taken all comments 
received into consideration when establishing the final rule.

Acceptable Documentation

    One commenter appeared to oppose the submission of documentation to 
demonstrate a catastrophically disabled veteran meets the definition of 
Indian or urban Indian for purposes of copayment exemption under 38 
U.S.C. 1730A.
    While not entirely clear, it appears this commenter believes that 
VA is requiring veterans who are catastrophically disabled and are also 
Indian or urban Indian to submit documentation to show such status. VA 
clarifies that section 1730A requires copayment exemption for two 
different groups of veterans: (1) veterans who are catastrophically 
disabled and (2) veterans who are Indian or urban Indian as defined in 
25 U.S.C. 1603. A veteran can qualify under either category for this 
copayment exemption, but does not need to qualify under both.
    For a veteran to be eligible for this copayment exemption as a 
catastrophically disabled veteran under 38 U.S.C. 1730A(b)(1), they 
must undergo examination and be found by VA to have a permanent 
severely disabling injury, disorder, or disease that compromises the 
ability to carry out the activities of daily living to such a degree 
that the individual requires personal or mechanical assistance to leave 
home or bed or requires constant supervision to avoid physical harm to 
self or others. See 38 CFR 17.36(e). In order to be eligible for this 
copayment exemption as an Indian or urban Indian under 38 U.S.C. 
1730A(b)(2), the veteran must provide documentation establishing that 
they meet the definition of Indian or urban Indian as defined in 25 
U.S.C. 1603(13) and (28).
    However, a catastrophically disabled veteran who also meets the 
definition of Indian or urban Indian as defined in 25 U.S.C. 1603(13) 
and (28) does not need to provide additional documentation that 
demonstrates they are Indian or urban Indian unless they are interested 
in a copayment exemption for more than three urgent care visits in a 
calendar year. This is discussed in more detail below. VA is not 
otherwise adding an additional requirement for catastrophically 
disabled veterans. Some commenters supported accepting identification 
and verification issued by American Indian and Alaska Native Tribal 
governments, such as Tribal identifications cards, for purposes of this 
copayment exemption. Another commenter recommended VA expand the list 
of acceptable documentation to include Tribal government verification, 
Tribal enrollment or identification cards, Tribal letters, kinship 
reports, and other documentation that promotes a veteran's ability to 
receive copayment exempt benefits.
    As explained in the proposed rule, VA will defer to American Indian 
and Alaska Native Tribal governments with respect to the documentation 
they issue to show who is a member of their Tribe. 88 FR 2039. This may 
include some of the documents that the commenters listed such as Tribal 
identification and enrollment cards, Tribal letters, and other 
documentation issued by tribes to demonstrate an individual is a member 
of their Tribe. VA will issue additional communications that provide 
veterans with examples of acceptable documents so that veterans know 
the documentation they may submit to demonstrate that they meet the 
definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28) 
and are eligible for this copayment exemption. However, in this 
rulemaking, VA has provided a description of the types of acceptable 
documents rather than an enumerated list of all acceptable documents to 
allow for additional documents if developed by American Indian and 
Alaska Native Tribal governments.
    While one of these commenters suggested VA accept kinship reports, 
VA declines to include that in the description of acceptable documents 
as those would not demonstrate that a veteran meets the definition of 
Indian or urban Indian under 25 U.S.C. 1603(13) and (28). That same 
commenter also suggested VA accept other documentation that promotes a 
veteran's ability to receive copayment exempt benefits but did not 
provide examples of what those other documents may be. To the extent 
they are suggesting VA accept documentation other than those consistent 
with VA's description of acceptable documentation, VA declines to do so 
as the categories of acceptable documentation align with the statutory 
definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28).
    Several commenters suggested that VA accept specific documents 
issued by entities, such as IHS, Tribal Health Programs (THP), and 
Urban Indian Organizations (UIO) that provide health care to American 
Indians and Alaska Natives. Suggested documents include proof of prior 
visit, health care records, patient registration record, and other 
records that show eligibility status. One commenter suggested VA 
improve coordination and interoperability of systems to allow sharing 
of records between VA and IHS for purposes of determining a veteran is 
eligible for this copayment exemption.
    As explained directly above, while VA will not include in the 
regulations an enumerated list of documents that may be submitted to 
demonstrate that a veteran meets the definition of Indian or urban 
Indian as defined in 25 U.S.C 1603(13) and (28), the documents 
suggested by these commenters also appear problematic because it 
appears that some individuals who are eligible to receive healthcare 
from IHS, THP, and UIO do not meet the definition of Indians or urban 
Indians in 25 U.S.C. 1603(13) and (28). See 42 CFR 136.12. Relying on 
documents that may be issued to individuals who received care from IHS, 
THP, or UIO but that do not meet the section 1603(13) and (28) 
definitions essentially would allow these organizations, rather than 
VA, to make determinations that veterans meet the definition of Indian 
or urban Indian when they may not.
    VA makes no changes based on these comments.

Covered Services

    Several commenters, including Tribal Nations, intertribal 
organizations, Tribal health boards, and Indian health clinics, 
together serving hundreds of Tribal Nations, suggested VA waive all 
copayments for all health care services provided to veterans who meet 
the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and 
(28). VA has authority to exempt copayments of hospital care and 
medical services pursuant to 38 U.S.C. 1730A. VA has distinct authority 
related to copayments for the hospital care and medical services 
provided to veterans through the urgent care benefit under 38 U.S.C. 
1725A. VA interprets the comments to request additional exemptions both 
beyond hospital care and medical services pursuant to section 1730A and 
section 1725A. We will address both scenarios below and will make 
changes to the rule based on the comments related to urgent care.

[[Page 19867]]

    One Tribal Nation asserted that there should be no limitation on 
the exemption for copayments as VA should not be more restrictive than 
the statutory authority. Another of these commenters further noted that 
copayment exempt elder care services are important since obtaining such 
care through VA will lighten the burden on IHS and Tribal health care 
providers, particularly as Tribal members are having longer lifespans. 
VA interprets these comments to mean that VA should provide a copayment 
exemption for all services furnished by VA even if they are not 
hospital care and medical services.
    Section 1730A explicitly exempts copayments for hospital care and 
medical services. VA has interpreted those terms consistent with their 
statutory definitions in 38 U.S.C. 1701(5) and (6) and in 38 CFR 
17.30(a).
    Section 1701(5), in pertinent part, defines hospital care to 
include medical services rendered in the course of the hospitalization 
of any veteran, and travel and incidental expenses pursuant to the 
provisions of 38 U.S.C. 111.
    Section 1701(6) defines medical services to include, in addition to 
medical examination, treatment, and rehabilitative services, the 
following: (1) surgical services; (2) dental services and appliances as 
described in 38 U.S.C 1710 and 1712; (3) optometric and podiatric 
services; (4) preventive health services; (5) noninstitutional extended 
care services, including alternatives to institutional extended care 
that the Secretary may furnish directly, by contract, or through 
provision of case management by another provider or payer; (6) in the 
case of a person otherwise receiving care or services under chapter 17, 
wheelchairs, artificial limbs, trusses, and similar appliances, special 
clothing made necessary by the wearing of prosthetic appliances, and 
such other supplies or services as the Secretary determines to be 
reasonable and necessary; (7) travel and incidental expenses pursuant 
to 38 U.S.C. 111; and (8) chiropractic services.
    Consistent with section 1701(6), VA has defined medical services in 
38 CFR 17.30(a) to include, in addition to medical examination, 
treatment, and rehabilitative services: (1) surgical services, dental 
services and appliances as authorized in 38 CFR 17.160 through 17.166, 
optometric and podiatric services, (in the case of a person otherwise 
receiving care or services under this chapter) the preventive health 
care services set forth in 38 U.S.C. 1701(9), noninstitutional extended 
care, wheelchairs, artificial limbs, trusses and similar appliances, 
special clothing made necessary by the wearing of prosthetic 
appliances, and such other supplies or services as are medically 
determined to be reasonable and necessary; (2) consultation, 
professional counseling, marriage and family counseling, training, and 
mental health services for the members of the immediate family or legal 
guardian of the veteran or the individual in whose household the 
veteran certifies an intention to live, as necessary in connection with 
the veteran's treatment; and (3) transportation and incidental expenses 
for any person entitled to such benefits under the provisions of 38 CFR 
70.10.
    Section 3002 of Public Law 116-315 amended 38 U.S.C. 1730A to 
include Indian and urban Indian veterans as covered veterans who are 
exempted from making copayments for the receipt of hospital care or 
medical services. That law requires VA to apply the copayment exemption 
to hospital care and medical services as those terms are defined in 
statute; section 1701(5) and (6) of title 38 of United States Code. 
Thus, VA interprets 38 U.S.C. 1730A to refer only to hospital care and 
medical services as defined in 38 U.S.C. 1701(5) and (6) and is 
exempting Indian and urban Indian veterans from copayments under 
17.108, 17.110, and 17.111 for inpatient hospital care, outpatient 
medical care, medication, noninstitutional extended care including 
adult day health care, noninstitutional respite care, and 
noninstitutional geriatric evaluation, respectively. Therefore, these 
veterans would still be required to pay copayments for domiciliary 
care, institutional respite care, institutional geriatric evaluation, 
and nursing home care. See 38 U.S.C. 1730B.
    Several commenters expressed concern with VA's proposal to charge a 
copayment for urgent care after the third visit for this group of 
veterans. Some commenters, including Tribal Nations, intertribal 
organizations, Tribal health boards, and Indian health clinics, 
together serving hundreds of Tribal Nations, specifically recommended 
VA exempt all urgent care visits from copayments as they explained that 
charging for urgent care visits after the first three visits in a 
calendar year is contrary to Congressional intent and the Federal 
government's trust responsibility. Some of these commenters asserted 
that veterans may delay or forgo needed care if they are charged a 
copayment for urgent care visits beyond the first three visits in a 
calendar year, especially as primary care is often less accessible than 
urgent care for American Indians and Alaska Natives. Relatedly, other 
commenters suggested VA exempt copayments for all urgent care as such 
care fills gaps where primary care is scarce or nonexistent, and 
copayments for such care can be a barrier for those who have to travel 
far for needed care, such as those in Alaska. One of these commenters 
suggested that alternatively, VA could exempt copayments for urgent 
care beyond three visits in a calendar year when an American Indian or 
Alaska Native veteran has to travel more than 100 miles or travel more 
than two or three hours for urgent care. Another commenter recommended 
VA extend the copayment exemption for urgent care visits beyond the 
initial three in a calendar year if extenuating circumstances warrant 
additional urgent care visits, such as when a medical appointment is 
canceled and cannot be rescheduled within the time that the veteran may 
need to address their medical issue. One commenter also recommended all 
urgent care visits at Indian health care providers and IHS, THP, or UIO 
facilities be exempt from copayments.
    VA considered these comments and has decided not to finalize its 
proposal to exempt only the first three urgent care visits from 
copayments for Indian or urban Indian veterans. Instead, VA will exempt 
all urgent care visits from copayments for such veterans. As explained 
in the proposed rule, VA has discretion under 38 U.S.C. 1725A to 
determine the appropriate copayment for urgent care visits, after the 
first two visits, for veterans who are otherwise exempt from copayments 
for VA care. Section 1725A(f)(1)(B) provides that an eligible veteran 
not required to pay a copayment under this title may access walk-in 
care (urgent care) without a copayment for the first two visits in a 
calendar year. For any additional visits, a copayment at an amount 
determined by the Secretary may be required. VA has previously utilized 
the authority provided under section 1725A to require copayments for 
all veterans, irrespective of their priority group enrollment, level of 
service-connected disability, or designation as catastrophically 
disabled, after the first three visits in a calendar year because the 
copayment is designed to encourage appropriate use of the benefit. 88 
FR 2041. However, based on the comments received, VA has determined 
that eligible Indian and urban Indian veterans will not be required to 
pay a copayment for urgent care visits under section 1725A.
    As explained above, Congress decided to adopt a copayment exemption 
for Indian and urban Indian veterans in

[[Page 19868]]

recognition of this country's promise to Tribal nations as part of its 
trust and treaty responsibilities to provide American Indians and 
Alaska Natives with free health care, to increase access to care, and 
to support parity for the provision of care by VA and other Federal 
agencies. As Representative Takano explained, the ``Federal Government 
has a legal and moral obligation to uphold its treaty obligations to 
Tribal nations, which include the provision of healthcare.'' Likewise, 
Representative Roe explained that the copayment exemption upholds ``the 
United States Government's longstanding trust and treaty 
responsibilities to the Native American communities.'' Our unique 
responsibilities to this community counsel in favor of exempting Indian 
and urban Indian veterans from all urgent care copayments.
    In addition, as the commenters explained, primary care is often 
less accessible than urgent care for American Indians and Alaska 
Natives, who often have to travel long distances to receive primary 
care. As a result, Indian and urban Indian veterans in some cases may 
find it necessary to use urgent care more than three times in a year, 
including in circumstances where primary care is not a meaningfully 
available alternative. Charging a copayment for those visits could 
deter this population from seeking necessary care. VA recognizes that 
the current copayment rules for urgent care are designed to encourage 
veterans to seek care from their primary care provider first, when VA 
can provide the needed care, and to utilize urgent care when prompt 
treatment is necessary to prevent the condition from becoming emergent. 
But for Indian and urban Indian veterans, that is often not a 
reasonably available option.
    Several studies document that American Indian and Alaska Native 
people are disproportionally affected by chronic health conditions and 
die at higher rates than other Americans.\1\ Native Americans, 
particularly those living in rural areas, face significant barriers in 
accessing health care.\2\ The United States Government has taken 
several steps to make health care more accessible, including 
strengthening the Indian health care system, granting greater 
management control of health care resources to Tribes, and removing 
cost sharing requirements for other federally delivered health care 
services.
---------------------------------------------------------------------------

    \1\ Issue Brief: Health Insurance Coverage and Access to Care 
for American Indians and Alaska Natives: Current Trends and Key 
Challenges, U.S. Department of Health and Human Services, Assistant 
Secretary for Planning and Evaluation, July 22, 2021, https://aspe.hhs.gov/sites/default/files/2021-07/aspe-aian-health-insurance-coverage-ib.pdf (last visited Mar. 28, 2023).
    \2\ Kerry J. Cromer, et al., Barriers to Healthcare Access 
Facing American Indian and Alaska Natives in Rural America, Journal 
of Community Health Nursing; 36:4, 165-187 (2019), https://www.tandfonline.com/doi/abs/10.1080/07370016.2019.1665320?journalCode=hchn20 (last visited Mar. 28, 
2023).
---------------------------------------------------------------------------

    This rule will also promote parity in how other Federal agencies 
address copayment rules for Indian and urban Indian veterans--which, as 
explained above, was one goal of Congress in adopting the copayment 
exemption. In the United States, Indians are generally exempted from 
all cost-sharing in health plans. This includes through the Indian 
Health Service (IHS), Medicare, and the Marketplace. Under section 1402 
(d)(1) of the Patient Protection and Affordable Care Act Public Law 
111-148, issuers of qualified plans must eliminate all cost-sharing, 
including copayments and deductibles for Indians if they obtain 
insurance through the Health Insurance Exchange. There is also no cost 
sharing for any Indian for any item or service obtained directly 
through IHS, Indian Tribe, Tribal organization, urban Indian 
organization or through referrals under contract health services 
without regard to income. Section 2902 of the Affordable Care Act also 
made permanent the reimbursement for all Medicare Part B services 
provided by IHS hospitals and clinics.
    For the reasons stated above, in recognition of the Government's 
trust responsibility, comments received from Tribes, and to ensure 
parity with other Federal health plans, VA will eliminate all 
copayments for urgent care visits regardless of the provider of the 
urgent care services for Indian and urban Indian veterans under 38 
U.S.C. 1725A. For these reasons VA will also reimburse these veterans 
copayments for all urgent care visits going back to January 5, 2022.
    VA notes that we intend to conduct further consultation and to 
publish a public request for information to obtain additional input 
from veterans on topics such as primary care access, the use of urgent 
care under section 1725A, and its role in health care delivery for all 
veterans.

Effective Date

    One commenter recommended the changes to the regulations take 
effect immediately. The Administrative Procedure Act (APA), codified in 
part at 5 U.S.C. 553, generally requires that agencies publish 
substantive rules in the Federal Register for notice and comment and 
provide not less than 30 days before the rules become effective An 
agency may bypass the APA's 30-day delay requirement if good cause 
exists, 5 U.S.C. 553(d)(3), or if the rule ``recognizes an exemption or 
relieves a restriction,'' 5 U.S.C. 553(d)(1). As this rule recognizes a 
copayment exemption, VA finds that it can publish this final rule with 
an immediate effective date and forgo the 30-day delay requirement. 38 
U.S.C. 553(d)(1).

Cost/Unfunded Mandate

    One commenter expressed concern about the cost of this rulemaking 
and disagreed with VA's assertion that this rule would not result in an 
unfunded mandate. VA makes no changes based on this comment. As stated 
in the proposed rule, unfunded mandates apply to 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 rule will not 
result in an expenditure by State, local, and Tribal governments, or by 
the private sector of $100 million or more (adjusted annually for 
inflation) in any one year. As explained in the regulatory impact 
analysis accompanying the proposed rule, VA estimated a 5-year impact 
of a loss of revenue to VA in the amount of approximately $20.4 million 
dollars and a 10-year impact of a loss of revenue to VA in the amount 
of approximately $50 million. This rulemaking does not require any 
expenditures by any State, local, or Tribal governments, as this rule 
only waives copayments for VA health care to certain veterans. VA 
refers the commenter to the regulatory impact analysis accompanying 
this rulemaking for a detailed analysis of the estimated costs for this 
rule.

Comments Outside the Scope of the Rulemaking

    One commenter suggested VA spend time on the Paperwork Reduction 
Act (PRA) rather than the proposed rule, particularly as they opined 
that the proposed rule is redundant, repetitive, and not concise. 
However, the commenter did not recommend any specific changes to the 
rulemaking. VA considers this comment outside the scope of the 
rulemaking and makes no changes based on it.
    Another commenter suggested that in future rulemakings that have an 
associated information collection subject to PRA, VA coordinate with 
the Office of Management and Budget (OMB) to allow tribes and Tribal 
organizations to actively participate in the rulemaking process through 
the submission of a written comment with sufficient time and notice. As 
part of the proposed rule, the public, to include

[[Page 19869]]

tribes and Tribal organizations, had the opportunity to submit comments 
on the information collection associated with this rulemaking, which is 
the case for all proposed rules that have an associated information 
collection. As VA explained in the proposed rule, a comment is best 
assured of having its full effect if OMB receives it within 30 days of 
publication of the proposed rule. Additionally, VA conducted Tribal 
consultation prior to the proposed rule and provided American Indian 
and Alaska Native Tribal governments and others the opportunity to 
provide VA with feedback about how VA could confirm a veteran meets the 
definitions in 25 U.S.C. 1603(13) and (28), including documentation 
that could or should be submitted for purposes of this copayment 
exemption. Consistent with VA policy, VA will continue to conduct 
Tribal consultations on issues that impact veterans who are members of 
tribes. The commenter did not recommend any changes to the rulemaking. 
VA makes no changes based on this comment.
    Some commenters requested that VA host an urban confer and/or an 
additional Tribal consultation on this rule and the documentation 
requirements. While we consider this comment outside the scope of the 
rule, VA conducted Tribal consultation prior to the proposed rule and 
provided American Indian and Alaska Native Tribal governments and 
others the opportunity to provide VA with feedback on information and 
documentation that VA could use to identify veterans who are members of 
a Tribe. Additionally, as part of the rulemaking process, VA provided 
the public, including American Indian and Alaska Native Tribal 
governments, veterans, and Indian health organizations, the opportunity 
to comment on its proposed rule. VA seriously considered all comments 
received during the consultation and public comment process and made 
changes to the rule based on comments received by the tribes. VA does 
not believe it is necessary to conduct additional Tribal consultation 
or an urban confer on this rulemaking. As explained earlier in this 
preamble, VA is engaged in a robust effort to educate all stakeholders 
about this copayment exemption and is committed to continued engagement 
with its stakeholders about how best to implement and educate others 
about the rule. VA makes no changes to the rule based on these 
comments.
    Several commenters made suggestions related to VA's implementation 
of this rule, including ensuring staff has adequate training and 
expertise to review documentation; ensuring determinations on 
eligibility for the copayment exemption are made by those who have 
specialized training and requisite subject matter expertise; conducting 
outreach to veterans, VA facilities, community providers, and active 
duty servicemembers (when they leave service); providing veterans with 
clear guidance and assistance on acceptable documentation; providing a 
defined process and timeline for identifying the copayments that will 
be reimbursed; and sharing data with Indian country on the utilization 
of the copayment exemption.
    While VA considers these comments outside the scope of this 
rulemaking since they concern internal VA processes not appropriate for 
regulation, VA considered them while creating the implementation plan 
for the copayment exemption. Initially, VA will provide information to 
veterans on the types of acceptable documentation that may be submitted 
for this copayment exemption and will communicate information on this 
copayment exemption to all veterans, including those who are American 
Indian and Alaska Native. VA will also have a website that provides 
information on the copayment exemption, including a list of acceptable 
documentation. VA will have designated staff that will have the 
necessary subject matter expertise and training to properly review the 
submitted documentation to confirm eligibility for the copayment 
exemption. Frontline staff at VA facilities will be expected to direct 
veterans to VA's website explaining the benefit and acceptable 
documentation as well as direct them to specific employees who can 
further address any questions veterans may have. VA will also work 
towards ensuring that active duty servicemembers transitioning out of 
military service are made aware of this copayment exemption. As part of 
implementation, VA is determining how it will collect and analyze data 
related to this copayment exemption. As part of that effort, VA intends 
to reach out to American Indian and Alaska Native Tribal governments 
and will consider sharing utilization with them as appropriate. VA is 
developing a process for issuing reimbursements to veterans who are 
eligible for such reimbursements retroactive for covered services 
provided on or after January 5, 2022. As the time for processing these 
reimbursements will be dependent on the volume of veterans who are 
determined to be eligible for this copayment exemption, VA will be 
unable to provide specific timeframes for reimbursement. However, VA 
will make every effort to process reimbursements as quickly as 
possible. VA makes no changes to the regulations based on these 
comments.
    One commenter recommended that VA retain copies of the 
documentation once it is submitted and update its records to identify 
the veteran as Indian or urban Indian and exempt them from future 
copayments. VA considers this comment outside the scope of the rule. 
However, VA will retain documentation submitted by veterans and once VA 
receives acceptable documentation, VA will update the veteran's VA 
records to ensure that VA does not charge eligible veterans copayments 
for covered care. VA makes no changes based on this comment.
    One commenter stated that veterans should have access to culturally 
relevant services and care, and VA should work closely with Urban 
Indian Health Organizations or Tribal Health Organizations. While VA 
considers this comment outside the scope of the rule, VA is committed 
to working with partner stakeholders to better serve Indians and urban 
Indian veterans when possible. Future engagements with these 
stakeholders may foster the opportunity for new and expanded 
partnerships. VA makes no changes to the rule based on this comment.
    Some commenters raised concerns regarding lack of access to 
culturally competent representation to assist American Indian and 
Alaska Native veterans relating to their benefits claims. These 
commenters further alleged VA has refused to work with or accredit UIO 
as claims representatives. VA considers these comments outside the 
scope of the rule and makes no changes based on them.

Regulatory Edits

    VA is making several minor technical edits to the language it 
previously proposed. VA is also making a substantive edit to address 
the exemption for all urgent care visits for Indian and urban Indian 
veterans.
    After the proposed rule published for public comment, VA published 
an interim final rule that amended several of VA's medical regulations, 
including 38 CFR 17.110(c). 88 FR 2536 (January 17, 2023). Section 
17.110 was revised by the January 17, 2023, rulemaking to include 
paragraph (c)(13), ``[m]edication for an individual as part of emergent 
suicide care as authorized under 38 CFR 17.1200-17.1230.'' Thus, in 
this final rule on the copayment exemption for Indian and urban Indian 
Veterans, VA will add paragraph (c)(14) to Sec.  17.110 to

[[Page 19870]]

refer to a veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), for medications provided on 
or after January 5, 2022. VA will use the exact same language that it 
proposed as Sec.  17.110(c)(13) in the proposed rule but it will be in 
paragraph (c)(14) instead and all references to paragraph (c)(13) as 
proposed will now reference paragraph (c)(14). VA is making no changes 
to the substantive language.
    VA is also making minor technical edits to the language proposed in 
Sec. Sec.  17.108(d)(14), 17.110(c)(13), 17.111(f), and 
17.4600(d)(1)(ii). In those proposed paragraphs, VA explained that in 
order to demonstrate that a veteran meets the definition of Indian or 
urban Indian, the veteran must submit to VA any of the documentation 
listed in the subparagraphs that follow the paragraph. However, VA 
finds it necessary to replace the word ``listed'' with the word 
``described'' to more accurately reflect that the acceptable 
documentation identified in these regulations is a description rather 
than an exhaustive list of documents. These changes have no substantive 
impact on provision of benefits or services to veterans.
    We are also making minor revisions to the language proposed in 
Sec. Sec.  17.108(d)(14)(ii), 17.110(c)(13)(ii), 17.111(f)(11)(ii), and 
17.4600(d)(1)(ii)(B). In those proposed paragraphs, we explained that 
acceptable documentation includes documentation showing that the 
veteran, irrespective of whether they live on or near a reservation, is 
a member of a Tribe, band, or other organized group of Indians 
terminated since 1940 and those recognized now or in the future by the 
State in which they reside, or who is a descendant, in the first or 
second degree, of any such member.
    However, VA now revises that language in the final rule to state 
that such documentation includes documentation showing that the veteran 
is a member of a Tribe, band, or other organized group of Indians. 
Thus, the language in Sec. Sec.  17.108(d)(14)(ii), 17.110(c)(14)(ii) 
(formerly paragraph (c)(13)(ii) but revised as explained further 
above), 17.111(f)(11)(ii), and 17.4600(d)(1)(ii)(B) (formerly paragraph 
(d)(1)(ii)(B) but revised as explained further below) will read as 
follows: documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a Tribe, 
band, or other organized group of Indians, including those tribes, 
bands, or groups terminated since 1940 and those recognized now or in 
the future by the State in which they reside, or who is a descendant, 
in the first or second degree, of any such member.
    The language VA proposed in Sec. Sec.  17.108(d)(14)(i), 
17.110(13)(i), 17.111(f)(11)(i), and 17.4600(d)(1)(ii)(A) described 
documentation issued by a federally recognized Indian Tribe that shows 
that the veteran is a member of the Tribe, which was intended to cover 
the part of the definition of Indian in 25 U.S.C. 1603(13)(A) regarding 
membership in a Tribe, band, or other organized group of Indians. 
Documents described in Sec. Sec.  17.108(d)(14)(i), 17.110(c)(13)(i) 
(revised in this final rule as paragraph (c)(14)(i) per the discussion 
further above), 17.111(f)(11)(i), and 17.4600(d)(1)(ii)(A) (revised in 
this final rule as paragraph (d)(4)(i)(A) per the discussion further 
below) could overlap with the revised language to Sec. Sec.  
17.108(d)(14)(ii), 17.110(c)(14)(ii), 17.111(f)(11)(ii), and 
17.4600(d)(1)(ii)(B) described above. However, to ensure VA is 
consistent with the language in the definition of Indian in 25 U.S.C. 
1603(13)(A), VA will revise the language proposed in Sec. Sec.  
17.108(d)(14)(ii), 17.110(c)(13)(ii) (revised in this final rule as 
paragraph (c)(14)(ii) per the discussion further above), 
17.111(f)(11)(ii), and 17.4600(d)(1)(ii)(B) (revised in this final rule 
as paragraph (d)(4)(i)(B) per the discussion further below), as 
explained in the previous paragraph. These changes have no substantive 
impact on provision of benefits or services to veterans.
    Additionally, we are making minor revisions to the language 
proposed in Sec. Sec.  17.108(d)(14)(i), 17.110(c)(13)(ii) (revised in 
this final rule as paragraph (c)(14)(ii) per the discussion further 
above), 17.111(f)(11)(i), and 17.4600(d)(1)(ii)(A) (revised in this 
final rule as paragraph (d)(4)(i)(A) per the discussion further below) 
to remove the hyphen between ``federally-recognized'' and replacing it 
with space so that the language in those paragraphs states ``federally 
recognized''. This is a minor edit to ensure the appropriate use of the 
term. These changes have no substantive impact on provision of benefits 
or services to veterans.
    VA is also making minor revisions to capitalize the term ``Tribe'' 
throughout Sec. Sec.  17.108(d)(14), 17.110(c)(14), 17.111(f)(11), and 
17.4600(d)(4), as VA did not capitalize such term in the proposed 
regulatory text for such sections. Capitalizing the term ``Tribe'' is 
consistent with the Government Publishing Office Style Guide.
    Finally, VA is making additional edits to the language it proposed 
as part of the urgent care regulation in 38 CFR 17.4600(d) to 
accommodate comments and expand the copayment exemption to all urgent 
care visits. The language in paragraph (d)(1) is amended so that it 
states, ``Except as provided in paragraphs (d)(2) through (4) of this 
section.'' This change will accommodate the new exception for Indian 
and urban Indian to be copayment exempt for all urgent care visits.
    VA is amending the language that was proposed in paragraph 
(d)(1)(ii) and adding it as a new paragraph (d)(4)(i) in 38 CFR 
17.4600. The language in paragraph (d)(1)(ii) of the proposed rule 
stated that a veteran would be required to pay a copayment for urgent 
care ``[a]fter three visits in a calendar year if such eligible veteran 
meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 
1603(13) and (28). To demonstrate that they meet the definition of 
Indian or urban Indian, the veteran must submit to VA any of the 
documentation listed in paragraphs (A) through (F)''. The first 
sentence of (d)(4)(i) will now read ``If an eligible veteran meets the 
definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) 
and (28), they are exempt from copayments for all urgent care visits.'' 
In addition, we revise the second sentence in paragraph (d)(4)(i) to 
state ``To demonstrate that they meet the definition of Indian or urban 
Indian, the veteran must submit to VA any of the documentation 
described in paragraphs (d)(4)(i)(A) through (F) of this section:''. 
This change will be consistent with the language proposed in the 
changes to Sec. Sec.  17.108, 17.110, and 17.111 and to clarify that we 
are referring to paragraphs (A) through (F) of paragraph (d)(4)(i) of 
Sec.  17.4600. This revised language also includes the change from 
``listed'' to ``described'' as explained further above as well the new 
paragraph designation. This change has no substantive impact on 
provision of benefits or services to veterans.
    VA is adding this revised language as a new paragraph (d)(4)(i) 
instead of as proposed paragraph (d)(1)(ii) because paragraph (d)(1), 
except as provided in paragraph (d)(2) or (3), explains when an 
eligible veteran is obligated to pay a copayment of $30 to VA. Since VA 
is expanding the copayment exemption to all urgent care visits, the 
revised language is added as an exception to the copayment requirement 
in paragraph (d)(1).
    Further, the language in paragraph (d)(4)(i) of the proposed rule 
is added as new paragraph (d)(4)(ii), and to be consistent with the 
structural changes described above, the references to paragraph 
(d)(1)(ii) are revised to

[[Page 19871]]

paragraph (d)(4)(i). This change has no substantive impact on provision 
of benefits or services to veterans.

Administrative Procedure Act

    The Administrative Procedure Act (APA), codified in part at 5 
U.S.C. 553, generally requires that agencies publish substantive rules 
in the Federal Register and provide a 30-day delay before the rule 
becomes effective. However, an agency may bypass the APA's 30-day delay 
requirement if the rule ``recognizes an exemption or relieves a 
restriction,'' 5 U.S.C. 553(d)(1). This rule recognizes an exemption, 
in particular, a copayment exemption for Indian and urban Indian 
veterans, and will therefore not have the 30-day delay before it 
becomes effective.

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 final 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 Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). This rule will not cause a significant economic impact on small 
entities since this exemption is limited to individual veterans who VA 
determines to be Indian or urban Indian. Therefore, pursuant to 5 
U.S.C. 605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule 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(d)) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Government agencies must seek 
approval from the Office of Management and Budget (OMB), which assigns 
a control number for each collection of information it approves. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays currently 
valid OMB control number (5 CFR 1320.8(b)(3)(vi)).
    This final rule includes provisions constituting new collections of 
information under the Paperwork Reduction Act of 1995 that require 
approval by OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted 
a copy of this rulemaking action to OMB for review.
    Sections 17.108, 17.110, 17.111, and 17.4600 contain new 
collections of information. OMB has filed a comment on these 
information collections that were submitted in conjunction with the 
proposed rule. OMB requested that VA develop a cover form as part of 
these information collections. Such cover form would accompany the 
veteran's documentation demonstrating that they meet the definition of 
Indian or urban Indian and would include the veteran's name and contact 
information. VA has developed such cover form and submitted it to OMB 
for review and approval as part of these information collections. VA 
anticipates these information collections to be approved 30 days after 
publication of the final rule.
    This information will be collected from veterans to determine if 
they meet the definition of Indian or urban Indian as defined in 25 
U.S.C. 1603(13) and (28) for purposes of exempting such veterans from 
copayments for certain health care. Veterans will submit documentation 
that demonstrates that they meet these definitions of Indian or urban 
Indian. VA estimates that 25,000 veterans will submit their 
documentation one time. The estimated average burden per response is 15 
minutes. VA estimates the annual cost to all respondents will be 
$175,062.50 per year (6,250 burden hours x $28.01 per hour). To 
estimate the total information collection burden cost, VA used the 
Bureau of Labor Statistics mean hourly wage for hourly wage for ``00-
0000 All Occupations'' of $28.01 per hour. This information is 
available at https://www.bls.gov/oes/current/oes.nat.htm.
    If OMB does not approve the collections of information as 
requested, VA will immediately remove the provisions containing the 
collections of information or take such other action as directed by 
OMB. Notice of such OMB approval will be published in a future Federal 
Register document.

Congressional Review Act

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

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Claims, Day care, Government 
programs--veterans, Health care, Health facilities, Health records, 
Medical devices, Mental health programs, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on March 29, 2023, and authorized the undersigned to sign and 
submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

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

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 17 as set forth below:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding entries for 
Sec. Sec.  17.111 and 17.4600 in numerical order to read in part as 
follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.111 is also issued under 38 U.S.C. 101(28), 501, 
1701(7), 1703, 1710, 1710B, 1720B, 1720D, 1722A, and 1730A.
* * * * *
    Section 17.4600 is also issued under 38 U.S.C. 1725A and 1730A.
* * * * *

0
2. Amend Sec.  17.108 by adding paragraphs (d)(14) and (g) and the

[[Page 19872]]

information collection control number to the end of the section to read 
as follows:


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

* * * * *
    (d) * * *
    (14) A veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), for inpatient hospital care 
or outpatient medical care provided on or after January 5, 2022. To 
demonstrate that they meet the definition of Indian or urban Indian, 
the veteran must submit to VA any of the documentation described in 
paragraphs (d)(14)(i) through (vi) of this section:
    (i) Documentation issued by a federally recognized Indian Tribe 
that shows that the veteran is a member of the Tribe;
    (ii) Documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a Tribe, 
band, or other organized group of Indians, including those tribes, 
bands, or groups terminated since 1940 and those recognized now or in 
the future by the State in which they reside, or who is a descendant, 
in the first or second degree, of any such member;
    (iii) Documentation showing that the veteran is an Eskimo or Aleut 
or other Alaska Native;
    (iv) Documentation issued by the Department of Interior (DOI) 
showing that the veteran considered by DOI to be an Indian for any 
purpose;
    (v) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (vi) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (A) Irrespective of whether they live on or near a reservation, is 
a member of a Tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (B) Is an Eskimo or Aleut or other Alaska Native;
    (C) Is considered by the Department of Interior to be an Indian for 
any purpose; or
    (D) Is considered by HHS to be an Indian under that Department's 
regulations.
* * * * *
    (g) Retroactive copayment reimbursement. After VA determines that 
the documentation submitted by the veteran meets the criteria in 
paragraph (d)(14) of this section and VA updates the veteran's record 
to reflect the veteran's status as an Indian or urban Indian, VA will 
reimburse veterans exempt under paragraph (d)(14) for any copayments 
that were paid to VA for inpatient hospital care and outpatient medical 
care provided on or after January 5, 2022 if they would have been 
exempt from making such copayments if paragraph (d)(14) had been in 
effect.

(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
TBD.)


0
3. Amend Sec.  17.110 by adding paragraphs (c)(14) and (d) and the 
information collection control number to the end of the section to read 
as follows:


Sec.  17.110  Copayments for medication.

* * * * *
    (c) * * *
    (14) A veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), for medications provided on 
or after January 5, 2022. To demonstrate that they meet the definition 
of Indian or urban Indian, the veteran must submit to VA any of the 
documentation described in paragraphs (c)(14)(i) through (vi) of this 
section:
    (i) Documentation issued by a federally recognized Indian Tribe 
that shows that the veteran is a member of the Tribe;
    (ii) Documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a Tribe, 
band, or other organized group of Indians, including those tribes, 
bands, or groups terminated since 1940 and those recognized now or in 
the future by the State in which they reside, or who is a descendant, 
in the first or second degree, of any such member;
    (iii) Documentation showing that the veteran is an Eskimo or Aleut 
or other Alaska Native;
    (iv) Documentation issued by the Department of Interior (DOI) 
showing that the veteran is considered by DOI to be an Indian for any 
purpose;
    (v) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (vi) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (A) Irrespective of whether they live on or near a reservation, is 
a member of a Tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (B) Is an Eskimo or Aleut or other Alaska Native;
    (C) Is considered by DOI to be an Indian for any purpose; or
    (D) Is considered by HHS to be an Indian under that Department's 
regulations.
    (d) Retroactive copayment reimbursement. After VA determines the 
submitted documentation meets paragraph (c)(14) of this section and 
updates the veteran's record to reflect the veteran's status as an 
Indian or urban Indian, VA will reimburse veterans exempt under 
paragraph (c)(14) for any copayments that were paid to VA for 
medications provided on or after January 5, 2022, if they would have 
been exempt from making such copayments if paragraph (c)(14) had been 
in effect.

(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
TBD.)


0
4. Amend Sec.  17.111 by adding paragraphs (f)(11) and (g) and the 
information collection control number to the end of the section to read 
as follows:


Sec.  17.111  Copayments for extended care services.

* * * * *
    (f) * * *
    (11) A veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), is exempt from copayments 
for noninstitutional extended care including adult day health care, 
noninstitutional respite care, and noninstitutional geriatric 
evaluation provided on or after January 5, 2022. To demonstrate that 
they meet the definition of Indian or urban Indian, the veteran must 
submit to VA any of the documentation described in paragraphs 
(f)(11)(i) through (vi) of this section:
    (i) Documentation issued by a federally recognized Indian Tribe 
that shows that the veteran is a member of the Tribe;
    (ii) Documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a Tribe, 
band, or other organized group of Indians, including

[[Page 19873]]

those tribes, bands, or groups terminated since 1940 and those 
recognized now or in the future by the State in which they reside, or 
who is a descendant, in the first or second degree, of any such member;
    (iii) Documentation showing that the veteran is an Eskimo or Aleut 
or other Alaska Native;
    (iv) Documentation issued by the Department of Interior (DOI) 
showing that the veteran is considered by DOI to be an Indian for any 
purpose;
    (v) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (vi) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (A) Irrespective of whether they live on or near a reservation, is 
a member of a Tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (B) Is an Eskimo or Aleut or other Alaska Native;
    (C) Is considered by DOI to be an Indian for any purpose; or
    (D) Is considered by HHS to be an Indian under that Department's 
regulations.
    (g) Retroactive copayment reimbursement. After VA determines the 
submitted documentation meets paragraph (f)(11) of this section and 
updates the veteran's record to reflect the veteran's status as an 
Indian or urban Indian, VA will reimburse veterans exempt under 
paragraph (f)(11) for any copayments that were paid to VA for adult day 
health care, non-institutional respite care, and non-institutional 
geriatric evaluation provided on or after January 5, 2022, if they 
would have been exempt from making such copayments if paragraph (f)(11) 
had been in effect.

(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
TBD.)


0
5. Amend Sec.  17.4600 by revising paragraph (d)(1) and adding 
paragraph (d)(4) and the information collection control number to the 
end of the section to read as follows:


Sec.  17.4600  Urgent care.

* * * * *
    (d) * * *
    (1) Except as provided in paragraphs (d)(2) through (4) of this 
section, an eligible veteran, as a condition for receiving urgent care 
provided by VA under this section, must agree to pay VA (and is 
obligated to pay VA) a copayment of $30:
* * * * *
    (4)(i) If an eligible veteran meets the definition of Indian or 
urban Indian, as defined in 25 U.S.C. 1603(13) and (28), they are 
exempt from copayments for all urgent care visits. To demonstrate that 
they meet the definition of Indian or urban Indian, the veteran must 
submit to VA any of the documentation described in paragraphs 
(d)(4)(i)(A) through (F) of this section:
    (A) Documentation issued by a federally recognized Indian Tribe 
that shows that the veteran is a member of the Tribe;
    (B) Documentation showing that the veteran, irrespective of whether 
they live on or near a reservation, is a member of a Tribe, band, or 
other organized group of Indians, including those tribes, bands, or 
groups terminated since 1940 and those recognized now or in the future 
by the State in which they reside, or who is a descendant, in the first 
or second degree, of any such member;
    (C) Documentation showing that the veteran is an Eskimo or Aleut or 
other Alaska Native;
    (D) Documentation issued by the Department of Interior (DOI) 
showing that the veteran is considered by DOI to be an Indian for any 
purpose;
    (E) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (F) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (1) Irrespective of whether they live on or near a reservation, is 
a member of a Tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (2) Is an Eskimo or Aleut or other Alaska Native;
    (3) Is considered by DOI to be an Indian for any purpose; or
    (4) Is considered by HHS to be an Indian under that Department's 
regulations.
    (ii) After VA determines the submitted documentation meets 
paragraph (d)(4)(i) of this section and updates the veteran's record to 
reflect the veteran's status as an Indian or urban Indian, VA will 
reimburse eligible veterans exempt under paragraph (d)(4)(i) for any 
copayments that were paid to VA for urgent care visits provided on or 
after January 5, 2022, if they would have been exempt from making such 
copayments if paragraph (d)(4)(i) had been in effect.
* * * * *

(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
TBD.)


[FR Doc. 2023-06954 Filed 4-3-23; 8:45 am]
BILLING CODE 8320-01-P