[Federal Register Volume 88, Number 99 (Tuesday, May 23, 2023)]
[Rules and Regulations]
[Pages 32974-32976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09893]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ58


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

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with 
a minor technical change, a proposed rule to revise its regulations 
concerning reimbursement rates for health care that VA provides to 
individuals who are not otherwise eligible for such care as veterans or 
other VA beneficiaries. This rulemaking revises several medical 
regulations to be consistent with applicable law, to remove obsolete 
provisions, and to clarify the provision of VA health care to 
individuals who are not otherwise eligible for such care as veterans or 
other VA beneficiaries.

DATES: This rule is effective June 22, 2023.

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

SUPPLEMENTARY INFORMATION: On 29 November 2022 VA published a proposed 
rule in the Federal Register that would revise its regulations 
concerning reimbursement rates for health care that VA provides to 
individuals who are not otherwise eligible for such care as veterans or 
other VA beneficiaries. Specifically, this rulemaking would revise 
provisions of VA regulations and make them consistent with applicable 
law along with removing obsolete provisions. These revisions would 
clarify VA regulations related to the provision of VA health care to 
individuals who are not otherwise eligible for such care as veterans or 
other VA beneficiaries, and it would not substantively affect the 
provision of health care to eligible veterans or other VA 
beneficiaries.
    VA provided a 60-day comment period, which ended on January 30, 
2023. VA received one comment on the proposed rule. This comment 
supported the proposed rule, and we thank the commenter for their 
comment.
    Based on the rationale set forth in the proposed rule, VA is 
adopting the proposed rule with a minor technical change. To comply 
with Federal Register drafting practices, we are making a minor change 
to the language proposed in 38 CFR 17.102 to replace the term 
``below.'' with ``as follows:''. These changes have no substantive 
impact on provision of benefits or services to veterans.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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. Executive Order 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). The 
Office of Information and Regulatory Affairs has determined that this 
rule is not a significant regulatory action under Executive Order 
12866, as amended by Executive Order 14094. The Regulatory Impact 
Analysis associated with this rulemaking can be found as a supporting 
document at www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will affect only individuals and other Federal 
agencies. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

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

    This rule contains no collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

[[Page 32975]]

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).

Assistance Listing

    The Assistance Listing program numbers and titles for the programs 
affected by this document are Veterans Domiciliary Care; 64.011--
Veterans Dental Care; 64.012--Veterans Prescription Service; 64.013--
Veterans Prosthetic Appliances; 64.014--Veterans State Domiciliary 
Care; 64.015--Veterans State Nursing Home Care; 64.026--Veterans State 
Adult Day Health Care; 64.029--Purchase Care Program; 64.033--VA 
Supportive Services for Veteran Families Program; 64.039--CHAMPVA; 
64.040--VHA Inpatient Medicine; 64.041--VHA Outpatient Specialty Care; 
64.042--VHA Inpatient Surgery; 64.043--VHA Mental Health Residential; 
64.044--VHA Home Care; 64.045--VHA Outpatient Ancillary Services; 
64.046--VHA Inpatient Psychiatry; 64.047--VHA Primary Care; 64.048--VHA 
Mental Health clinics; 64.049--VHA Community Living Center; 64.050--VHA 
Diagnostic Care; 64.053.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Health care, Health 
facilities, Reporting and recordkeeping requirements, Travel and 
transportation expenses, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on May 3, 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 
17.43, 17.44, 17.86, and 17.102 in numerical order to read in part as 
follows:

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


Sec.  17.43  [Amended]

0
2. Amend Sec.  17.43 by removing paragraph (b)(3).


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


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

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

0
4. Amend Sec.  17.86 by:
0
a. Revising paragraph (e); and
0
b. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


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

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

0
5. Revise Sec.  17.102 to read as follows:


Sec.  17.102  Charges for care or services.

    Subject to the methodology set forth in paragraph (c) of this 
section, and notwithstanding the provisions of Sec.  17.101, VA shall 
charge for VA care and services provided in the circumstances described 
as follows:
    (a) For hospital care or medical services provided:
    (1) As a humanitarian service in a medical emergency in accordance 
with 38 U.S.C. 1784 or 38 U.S.C. 1784A;
    (2) During and immediately following a disaster or emergency in 
accordance with 38 U.S.C. 1785 and Sec.  17.86;
    (3) While attending a national convention of an organization 
recognized under 38 U.S.C. 5902, for emergency medical treatment, in 
accordance with 38 U.S.C. 1711;
    (4) In error, on the basis of eligibility as a non-veteran 
recipient of VA hospital care and medical services under title 38 
U.S.C., and such an individual subsequently is determined not to have 
been eligible for such care or services;
    (5) To a beneficiary of the Department of Defense or other Federal 
agency, to include for inpatient or outpatient care or services 
authorized for a member of the Armed Forces on active duty, a 
beneficiary or designee of any other Federal agency, and members or 
former members of a uniformed service who are entitled to retired or 
retainer pay, or equivalent pay; or
    (6) To a retiree of the uniformed services with a chronic 
disability for hospital care identified in Executive Orders 10122, 
10400, and 11733 as well as Sec.  17.44.
    (b) For hospital care, medical services, domiciliary care, or 
nursing home care provided:
    (1) In error, on the basis of eligibility for such care and 
services as a veteran

[[Page 32976]]

under Sec. Sec.  17.34, 17.36, or 17.37, and such an individual was 
subsequently determined not to have been eligible for such care or 
services.
    (2) To a discharged member of the armed forces of a nation allied 
with the United States in World War I or World War II in accordance 
with 38 U.S.C. 109.
    (3) Under a sharing agreement in accordance with 38 U.S.C. 8111 or 
8153 and 17.240.
    (4) Under any other provision of law that authorizes VA to provide 
care.
    (c) Unless rates or charges are otherwise established in contract, 
in a sharing agreement, or under Federal law, VA will charge under this 
section at rates based on the VHA Office of Finance Managerial Cost 
Accounting (MCA) Cost Reports, which sets forth the actual basic costs 
and per diem rates by type of inpatient care, and actual basic costs 
and rates for outpatient care visits. Factors for depreciation of 
buildings and equipment and Central Office overhead are added, based on 
accounting manual instructions. Additional factors are added for 
interest on capital investment and for standard fringe benefit costs 
covering government employee retirement and disability costs. The VHA 
Office of Finance MCA Cost Reports are used to determine two separate 
rates: one rate is the general Cost-Based Rate and the other rate is 
the Inter-Agency Rate. These rates are published annually by VA on the 
internet site of the Veterans Health Administration Office of Community 
Care's website at https://www.va.gov/communitycare/revenue_ops/payer_rates.asp.
    (d) The rates for prescription drugs that VA furnishes not 
administered during treatment are based on the actual cost of the drug 
plus a national average of VA administrative costs as described in 
Sec.  17.101(m).

[FR Doc. 2023-09893 Filed 5-22-23; 8:45 am]
BILLING CODE 8320-01-P