[Federal Register Volume 89, Number 101 (Thursday, May 23, 2024)]
[Rules and Regulations]
[Pages 45599-45601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10897]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 51

RIN 2900-AS01


Changes to the Provision of Health Care for World War II Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA) 
medical regulations and its regulations on per diem for nursing home 
care of veterans in State homes to conform with section 101 of the 
Joseph Maxwell Cleland and Robert Joseph Dole Memorial Veterans 
Benefits and Health Care Improvement (Cleland-Dole) Act of 2022, which 
expanded the provision of hospital care, medical services, and nursing 
home care to World War II (WWII) veterans. VA is also amending its 
medical regulations to remove existing references to Mexican border and 
World War I (WWI) veterans.

DATES: This rule is effective May 23, 2024.

FOR FURTHER INFORMATION CONTACT: Ralph Weishaar, Director, VHA Member 
Services (15MEM) Business Support Office, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (254) 755--0407. 
(This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

I. Background

    VA has authority to furnish hospital care, medical services, and 
nursing home care pursuant to section 1710 of title 38, United States 
Code (U.S.C.). In general, section 1710(a)(1) lists the categories of 
veterans to whom the Secretary shall furnish hospital care and medical 
services that the Secretary determines to be needed; section 1710(a)(2) 
lists the categories of veterans to whom the Secretary shall furnish 
hospital care and medical services and may furnish nursing home care, 
which the Secretary determines to be needed; and section 1710(a)(3) 
states that in the case of a veteran who is not described in section 
1710(a)(1) and (2), the Secretary may, to the extent resources and 
facilities are available, furnish hospital care, medical services, and 
nursing home care, which the Secretary determines to be needed.
    Whether a veteran is eligible for VA care under section 1710(a)(1), 
(2), or (3) determines, among other benefits, priority for enrollment 
in VA health care. Section 1705(a) establishes eight priority 
categories for purposes of enrollment in VA health care. For example, 
priority category six includes veterans eligible for hospital care, 
medical services, and nursing home care under section 1710(a)(2) who 
are not otherwise eligible for priority category one through five. See 
38 U.S.C. 1705(a)(6).
    In addition to determining placement in a priority category, 
section 1710(a)(1) and (2) help determine whether a veteran is exempt 
from copayments for hospital care and medical services. Sections 
1710(f)(1) and (g)(1) only require VA to charge a veteran a copayment 
for hospital care and medical services, if that veteran is eligible for 
such care under section 1710(a)(3). That is, veterans eligible to 
receive hospital care and medical services under section 1710(a)(1) and 
(2) do not have to pay a copayment for such care and services. 
Furthermore, VA shall pay per diem for eligible veterans receiving 
nursing home care in a State home pursuant to 38 U.S.C. 1741. See 38 
Code of Federal Regulations (CFR) 51.50.
    VA has regulated priority categories at Sec.  17.36 and copayment 
exemption for inpatient hospital care and outpatient medical care at 
Sec.  17.108. VA also has regulated eligibility for purposes of payment 
of per diem for nursing home care at State homes in Sec.  51.50.
    Historically, veterans of WWII were not listed as a category of 
veterans in 38 U.S.C. 1710(a)(1) or (2). Therefore, they were only 
eligible for hospital care, medical services, or nursing home care if 
they were otherwise eligible under other criteria in section 
1710(a)(1), (2), or (3), or 38 U.S.C. 1710A. As such, some WWII 
veterans had to pay copayments for inpatient hospital care and 
outpatient medical care because they were eligible for VA health care 
under section 1710(a)(3) and others were not eligible to enroll in VA 
health care at all because they were in subcategories (v) and (vi) of 
priority category eight (which are not currently eligible to enroll in 
VA health care). See 38 CFR 17.36(c)(2).

II. The Consolidated Appropriations Act, 2023

    On December 29, 2022, the Cleland-Dole Act was signed into law. 
Effective March 31, 2023, section 101 of the Cleland-Dole Act amended 
38 U.S.C. 1710(a)(2)(E) to expressly include veterans of WWII. WWII is 
defined in 38 U.S.C. 101(8) to mean the period beginning on December 7, 
1941, and ending on December 31, 1946.
    As the plain language of section 101 of the Cleland-Dole Act is 
clear and requires no interpretation, VA began implementing section 101 
on March 31, 2023. In this regard, VA placed any WWII veteran who was 
in priority category seven or eight into priority category six. This 
made WWII veterans who were in subcategories (v) and (vi) of priority 
category eight both eligible for enrollment in VA health care as well 
as exempt from copayment for inpatient hospital care and outpatient 
medical care. VA's placement of WWII veterans in priority category six 
also exempted from copayment for inpatient hospital care and outpatient 
medical care those WWII veterans who were already enrolled in VA health 
care and in priority category seven and subcategories (i) through (iv) 
of priority category eight. Additionally, effective March 31, 2023, 
WWII veterans are eligible veterans for purposes of payment of per diem 
for nursing home care in State homes. We note that WWII veterans may 
have been previously eligible for purposes of payment of per diem for 
nursing home care in State homes prior to March 31, 2023, if they met 
other eligibility criteria for such payment. See 38 CFR 51.50.
    In this rulemaking, VA amends its regulations governing VA health 
care enrollment and priority categories (38 CFR 17.36) and copayments 
for inpatient hospital care and outpatient medical care (38 CFR 17.108) 
to conform to section 101 of the Cleland-Dole Act. Similarly, VA also 
amends its eligibility for purposes of payment of per diem for nursing 
home care in State homes (38 CFR 51.50) to explicitly include WWII 
veterans. We note that section 1710(a)(2)(E) expressly recognizes 
veterans of the Mexican border period and WWI as eligible for hospital 
care, medical services, or nursing home care under that paragraph. 
However, there are no longer

[[Page 45600]]

any living veterans of these eras.\1\ See 80 FR 34793 (June 17, 2015); 
83 FR 61250 (December 28, 2018). In this rulemaking, VA also removes 
references to these veterans as explained in more detail below.
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    \1\ Courson, Paul. Last Living U.S. World War I Veteran Dies. 
CNN. February 27, 2011. https://www.cnn.com/2011/US/02/27/wwi.veteran.death/; Obituary: Samuel B. Goldberg, Legacy.com. 2024. 
https://www.legacy.com/us/obituaries/providence/name/samuel-goldberg-obituary?id=16769095 (last accessed March 27, 2024).
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III. Changes to VA Regulations

A. 38 CFR 17.36(b) Categories of veterans eligible to be enrolled

    Consistent with 38 U.S.C. 1705 and 1710, VA has established health 
care priority categories in its medical regulations at 38 CFR 17.36(b).
    Section 17.36(b)(6), in pertinent part, establishes that priority 
category six includes veterans of the Mexican border period or of WWI, 
among other groups of veterans listed in 38 U.S.C. 1710(a)(2).
    VA revises 38 CFR 17.36(b)(6) to include WWII veterans within 
priority category six, consistent with section 101 of the Cleland-Dole 
Act. VA also amends 38 CFR 17.36(b)(6) to remove the references to 
Mexican border period and WWI veterans as there are no living veterans 
of these eras. Thus, the language in Sec.  17.36(b)(6) is revised by 
removing the current language, ``Veterans of the Mexican border period 
or of World War I'' and adding, in its place, ``Veterans of World War 
II''.

B. 38 CFR 17.108 Copayments for Inpatient Hospital Care and Outpatient 
Medical Care

    Consistent with 38 U.S.C. 1710(f) and (g), VA regulates copayments 
for inpatient hospital care and outpatient medical care and the groups 
of veterans that are exempt from such copayments at 38 CFR 17.108. 
Current Sec.  17.108(d)(8) exempts veterans of the Mexican border 
period and of World War I from copayments for inpatient hospital care 
and outpatient medical care.
    VA revises Sec.  17.108(d)(8) to include WWII veterans as exempt 
from copayments for inpatient hospital care and outpatient medical 
care, consistent with section 101 of the Cleland-Dole Act. VA also 
amends Sec.  17.108(d)(8) to remove the references to Mexican border 
period and WWI veterans because there are no living veterans of these 
eras. Thus, the language in Sec.  17.108(d)(8) is revised by removing 
the current language, ``A veteran of the Mexican border period or of 
World War I'' and adding, in its place, ``A veteran of World War II''.

C. 38 CFR 51.50 Eligible Veterans--Nursing Home Care

    Consistent with 38 U.S.C. 1741 through 1745, VA regulates per diem 
payments for nursing home care of veterans in State homes in 38 CFR 
part 51. Section 51.50 describes veterans who are eligible for purposes 
of payment of per diem for nursing home care in State homes.
    VA has interpreted, and continues to interpret, amendments to 38 
U.S.C. 1710(a)(2) to impact its State home regulations in 38 CFR part 
51, including Sec.  51.50. For example, see 80 FR 34801 (June 17, 2015) 
(proposing to amend Sec.  51.50 to add veterans who were awarded the 
Purple Heart or the medal of honor as eligible for nursing home care in 
State homes); 83 FR 61250 (November 28, 2018).
    Thus, consistent with 38 U.S.C. 1710(a)(2)(E), as amended by 
section 101 of the Cleland-Dole Act, VA revises 38 CFR 51.50 to reflect 
that WWII veterans are eligible veterans for purposes of payment of per 
diem for nursing home care in State homes. In Sec.  51.50, VA is 
redesignating current paragraph (i), which states that an eligible 
veteran includes veterans who agree to pay to the United States the 
applicable co-payment determined under 38 U.S.C. 1710(f) and 1710(g), 
as new paragraph (j). Because of this redesignation, VA is 
redesignating note 1 to current paragraph (i) as note 1 to paragraph 
(j). VA is also adding new paragraph (i) to state that veterans of WWII 
are eligible for nursing home care in State homes.
    We note that this section does not currently include veterans of 
the Mexican border period or of WWI as such veterans were removed from 
38 CFR 51.50 in 2018 because there were no longer any living veterans 
of those eras. See 80 FR 34793 (June 17, 2015); 83 FR 61250 (December 
28, 2018).
Administrative Procedure Act
    The Secretary of Veterans Affairs finds that there is good cause 
under the Administrative Procedure Act (APA), 5 U.S.C. 553, to publish 
this rule without prior opportunity for public comment and with an 
immediate effective date. Pursuant to 5 U.S.C. 553(b)(B), general 
notice and opportunity for public comment are not required with respect 
to a rulemaking when an ``agency for good cause finds (and incorporates 
the finding and a brief statement of reasons therefor in the rules 
issued) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.''
    This final rule amends 38 CFR 17.36, 17.108, and 51.50 to 
incorporate statutory changes mandated by Congress to furnish health 
care benefits to WWII veterans on the basis of their service. VA has 
interpreted, and continues to interpret, amendments to 38 U.S.C. 
1710(a)(2) to impact its health care regulations in part 17 (see 84 FR 
7813), as well its State home regulations in part 51 (see 80 FR 34801). 
VA's authority is limited to implementing 38 U.S.C. 1710(a)(2)(E) as 
amended by Congress, and VA does not have discretion to administer 
benefits in a way inconsistent with section 1710(a)(2)(E). Thus, the 
Secretary finds that it is unnecessary to delay issuance of this rule 
for the purpose of soliciting prior public comment.
    Additionally, the APA generally requires that agencies publish 
rules in the Federal Register with a 30-day delayed effective date. 
However, an agency may bypass the APA's 30-day delay requirement if the 
rule grants or recognizes an exemption or relieves a restriction or the 
agency has good cause. 5 U.S.C. 553(d)(1) and (3). This rule both 
removes a restriction by including WWII veterans under 38 U.S.C. 
1710(a)(2)(E), authorizing VA to furnish care to such veterans on the 
basis of their service, and recognizes an exemption, in particular, a 
copayment exemption for WWII veterans. Additionally, the Secretary has 
found there is good cause to forego notice and public procedure, as 
explained above, and for the same reasons finds good cause to make 
these amendments effective on the date of publication. This rule will 
therefore not have the 30-day delay before it becomes effective.
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

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18, 2011 (Improving Regulation and Regulatory Review). The Office of 
Information and Regulatory Affairs has determined that this rulemaking 
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 (RFA)
    The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable 
to this rulemaking because notice of proposed rulemaking is not 
required. 5 U.S.C. 601(2), 603(a), 604(a).
Unfunded Mandates
    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act (PRA)
    Although this final rule contains collections of information under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521), there are no provisions associated with this rulemaking 
constituting any new collection of information or any revisions to the 
existing collections of information. The collections of information for 
38 CFR 17.36 and 17.108 are currently approved by the Office of 
Management and Budget (OMB) and have been assigned OMB control numbers 
2900-0091 and 2900-0920. WWII veterans applying for health care under 
38 U.S.C. 1710(a)(2)(E) would apply by completing VA Form 10-10EZ, 
``Application for Health Benefits,'' or VA Form 10-10EZR, ``Health 
Benefits Update Form,'' which are approved under OMB control 2900-0091.
Congressional Review Act
    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not satisfying the criteria under 5 U.S.C. 
804(2).

List of Subjects in 38 CFR Parts 17 and 51

38 CFR Part 17

    Day care, Health care, Health facilities, Nursing homes, Veterans.

38 CFR Part 51

    Day care, Health care, Health facilities, Nursing homes, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on May 13, 2024, 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 parts 17 and 51 as set forth below:

PART 17--MEDICAL

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

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


Sec.  17.36  [Amended]

0
2. Amend Sec.  17.36(b)(6) by removing ``Veterans of the Mexican border 
period or of World War I;'' and adding, in its place, ``Veterans of 
World War II;''.


Sec.  17.108  [Amended]

0
3. Amend Sec.  17.108(d)(8) by removing ``A veteran of the Mexican 
border period or of World War I'' and adding, in its place, ``A veteran 
of World War II''.

PART 51--PER DIEM FOR NURSING HOME, DOMICILIARY, OR ADULT DAY 
HEALTH CARE OF VETERANS IN STATE HOMES

0
4. The authority citation for part 51 continues to read as follows:

    Authority: 38 U.S.C. 101, 501, 1710, 1720, 1741-1743, 1745, and 
as follows.


0
5. Amend Sec.  51.50 by:
0
a. Redesignating paragraph (i) as paragraph (j);
0
b. Redesignating note 1 to paragraph (i) as note 1 to paragraph (j);
0
c. Adding new paragraph (i) to read as follows:


Sec.  51.50  Eligible veterans--nursing home care.

* * * * *
    (i) Veterans of World War II;
* * * * *
[FR Doc. 2024-10897 Filed 5-22-24; 8:45 am]
BILLING CODE 8320-01-P