[Federal Register Volume 89, Number 105 (Thursday, May 30, 2024)]
[Notices]
[Pages 46994-46996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10483]


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DEPARTMENT OF VETERANS AFFAIRS


Notice of Intent To Exempt Copayments for the First Three Mental 
Health Care Outpatient Visits Annually

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

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SUMMARY: VA intends to implement a new law that prohibits the 
collection of copayments for the first three mental health care 
outpatient visits of a Veteran in a calendar year for which the Veteran 
would otherwise be required to pay a copayment. VA's current 
regulations regarding copayments do not include an exemption for this 
purpose, but VA will revise them soon to align with the law. In April 
2024, VA was able to modify its systems and processes to comply with 
the law for qualifying appointments that occurred on or after June 27, 
2023. By law, the exemption will expire on December 29, 2027.

DATES: Implementation will be applicable upon publication in the 
Federal Register.

FOR FURTHER INFORMATION CONTACT: Ms. Tamara Wagner, Office of Finance, 
Revenue Operations, (104RO2), Veterans Health Administration, 
Department of Veterans Affairs, 128 Bingham Road, Suite 1000, 
Asheville, NC 28806; 970-242-0731, extension 2219. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: The primary purpose of this notice is to 
inform the public of VA's intent to modify its systems and processes to 
comply with new statutory requirements while rulemaking proceeds to 
modify existing regulations. On December 29, 2022, the Joseph Maxwell 
Cleland and Robert Joseph Dole Memorial Veterans Benefits and Health 
Care Improvement Act of 2022 (the Act; Pub. L. 117-328, Division U), 
added a new section 1722C to title 38, U.S.C., that generally prohibits 
VA from imposing or collecting a copayment for the first three mental 
health care outpatient visits of a Veteran in a calendar year for which 
the Veteran would otherwise be required to pay a copayment to VA. The 
Act defines a mental health care outpatient visit to mean an outpatient 
visit with a qualified mental health professional for the primary 
purpose of seeking either mental health care, or treatment for 
substance abuse disorder. The copayment exemption for the first three 
outpatient mental health care visits includes appointments completed in 
VA clinics as well as those conducted by community care providers.
    VA will modify its regulations regarding copayments for outpatient 
mental health care, set forth at 38 CFR 17.108, to reflect this 
authority. Mental health care outpatient visits are defined in law to 
mean an outpatient visit with a qualified mental health professional 
for the primary purpose of seeking either mental health care or 
treatment for substance abuse disorder.
    The determination of the first three mental health visits is 
expected to be complex due to a variety of issues, including the need 
to consider whether care is service-connected or otherwise exempt, how 
to handle Veterans with multiple appointments in the same day, and 
administrative requirements (such as establishing a tool to count the 
number of appointments a Veteran has had in a calendar year). To ensure 
the most effective application of this benefit and exempt copayments as 
applicable under the statute, VA will determine if a visit qualifies 
for a copayment exemption using the following process.
    First, VA will evaluate the clinic where the appointment occurred. 
If the clinic is a mental health, psychiatry, psychology, or substance 
abuse clinic, VA will exempt the copayment, if applicable, if the 
appointment is one of the first three qualifying visits in a calendar 
year. Second, if the visit was not performed in such a clinic, VA will 
review what provider completed the appointment to determine if the 
visit applies for a copayment exemption. If the provider is a 
psychiatrist, psychologist, licensed professional mental health 
counselor, marriage or family therapist, or social worker, and if the 
medical service provided is classified as an evaluation and management 
visit, mental health visit, group therapy visit, or psychiatric 
diagnostic assessment, VA will exempt the copayment, if applicable, 
provided the appointment is one of the first three qualifying visits in 
a calendar year. Veterans that are otherwise copayment exempt based on 
Priority Group or service connection should see no difference in their 
copayment status as the copayment would already be exempt for other 
reasons. If a Veteran has multiple appointments in one day, including a 
visit that would qualify for

[[Page 46995]]

this exemption as well as a visit that does not, the copayment for the 
visit that does not qualify for this exemption will still apply (in 
other words, if a Veteran has a primary care appointment and a mental 
health appointment that would qualify for this exemption, the primary 
care copayment would still apply). Further examples are provided below 
to help illustrate how the copayment exemption will be applied.
    Example 1: A Priority Group 7 Veteran has an appointment with the 
general mental health clinic and is treated by a psychologist. This is 
the first appointment of the calendar year for this Veteran. The 
Veteran is not service connected for any mental health conditions. 
Under the new law, a copayment will not be applied to this visit.
    Example 2: A Priority Group 7 Veteran has an appointment with a 
primary care clinic and is treated by a general medicine provider. The 
Veteran discusses symptoms of depression and anxiety during the primary 
care visit. This visit is for a non-service-connected condition that 
would be subject to a copayment. This visit is not subject to the 
copayment exemption under the new law as the provider type and clinic 
location are not considered outpatient mental health care.
    Example 3: A Priority Group 7 Veteran has an appointment with the 
general mental health clinic and is seen by a general medicine 
provider. This is the first visit of the year for the Veteran and is 
for a non-service-connected condition that would be subject to a 
copayment. Under the new law, a copayment will not be applied to this 
visit as the visit occurred in a mental health clinic and meets the 
definition of outpatient mental health care.
    Example 4: A Priority Group 7 Veteran has an appointment with the 
general mental health clinic with a psychologist for a psychological 
assessment using psychometric instruments for the purpose of 
neuropsychological testing. The Veteran has been followed by this 
provider for many months; however, this is the first visit for the 
Veteran in the calendar year and is for a non-service-connected 
condition. This service would normally be assessed a specialty 
copayment. Under the new law, this copayment would be waived as it is 
the first mental health visit in a calendar year.
    Example 5: A Priority Group 8 Veteran has three appointments at a 
VA medical center (VAMC) on the same day. The first visit is in the 
primary care clinic with the Veteran's primary care provider. The 
second appointment is a specialty appointment with Cardiology following 
a prior referral by the primary care provider. The third appointment is 
with the substance abuse clinic and is with a licensed clinical social 
worker and is the first visit in the calendar year. All the care is 
considered non-service connected. As this Veteran had multiple 
appointments on the same day, a copayment decision is made for each 
service to determine which should apply. The basic copayment would 
normally apply for the first primary care visit. The specialty 
copayment would apply for the cardiology visit, which would take 
precedence over the basic copayment (thereby nullifying that 
obligation). The copayment for the substance abuse visit would be 
exempt on the same basis. This Veteran would be assessed one copayment 
for the day at the specialty copayment level for the cardiology visit, 
and the substance abuse visit would not count as one of the three 
mental health outpatient visits during the calendar year.
    Example 6: A Priority Group 8 Veteran has two appointments at a 
VAMC on the same day. The first visit is in the primary care clinic 
with the Veteran's primary care provider. The second appointment is a 
specialty appointment with the mental health clinic, is with a licensed 
clinical social worker, and is the first visit in the calendar year. 
All the care is considered non-service connected. As this Veteran had 
multiple appointments on the same day, a copayment decision is made for 
each service to determine which should apply. The basic copayment would 
normally apply for the first primary care visit. The specialty 
copayment would apply for the mental health visit, which would take 
precedence over the basic copayment; however, because the copayment for 
the specialty care mental health visit would be exempt based on this 
law, the Veteran would be assessed one copayment for the day at the 
primary care copayment level for the primary care visit. The mental 
health visit would count as one of the three mental health outpatient 
visits exempted from a copayment during the calendar year.
    Example 7: A Priority Group 8 Veteran has two appointments at a 
VAMC on the same day. The first visit is in the primary care clinic 
with the Veteran's primary care provider. The second appointment is a 
specialty appointment with the mental health clinic, is with a licensed 
clinical social worker, and is the fifth visit in the calendar year. 
All the care is considered non-service connected. As this Veteran had 
multiple appointments on the same day, a copayment decision is made for 
each service to determine which should apply. The basic copayment would 
normally apply for the first primary care visit. The specialty 
copayment would apply for the mental health visit, which would take 
precedence over the basic copayment; because the copayment for the 
specialty care mental health visit would not be exempt based on this 
law (as it not one of the first three visits), the Veteran would be 
assessed one copayment for the day at the specialty care copayment 
level for the mental health visit.
    Section 1722C, by prohibiting the imposition or collection of 
copayments ``for the first three mental health care outpatient visits 
of a Veteran in a calendar year for which the Veteran would otherwise 
be required to pay a copayment'' to VA, intersects with section 
1710(g), which subjects Veterans (generally in Priority Groups 7 and 8) 
to making copayments for the receipt of care. This intersection is 
discussed in the examples above. Section 1722C also intersects with 
section 1725A(f) (and VA's regulations at 38 CFR 17.4600), which 
authorizes VA to furnish walk-in care from qualifying non-Department 
providers. Veterans receiving walk-in or urgent care under this 
authority may be subject to copayments in at least some cases. While 
theoretically mental health care outpatient visits exempt from 
copayments under section 1722C could be provided pursuant to the walk-
in care authority of section 1725A, VA does not believe they are 
provided today under VA's existing network of community providers. In 
the future, VA's community network could expand to include services 
furnished in the clinics described above (a mental health, psychiatry, 
psychology, or substance abuse clinic) or by the provider types and 
services (psychiatrist, psychologist, licensed professional mental 
health counselor, marriage or family therapist, or social worker, and 
if the medical service provided is classified as an evaluation and 
management visit) described above. If this occurs, VA will provide 
additional guidance to Veterans on how these authorities would affect 
their copayment liability. For now, if Veterans have questions or 
concerns about outpatient mental health care copayments furnished in a 
community walk-in care clinic or urgent care facility, we recommend 
they contact the Revenue Department at the local VAMC for further 
information.
    Section 193A(b) of the Act provided that the new 38 U.S.C. 1722C 
shall apply with respect to mental health care outpatient visits 
occurring on or after the date that is 180 days after the date of the 
enactment of this Act. The Act

[[Page 46996]]

was enacted into law on December 29, 2022, and 180 days after that date 
was June 27, 2023. VA will apply the process described above and issue 
a refund to Veterans who paid a copayment for the first three mental 
health care outpatient visits on or after June 27, 2023, during that 
calendar year. This will give effect to the applicability provisions 
set forth in section 193A(b) of the Act.
    While this process is expected to identify the vast majority of 
qualifying mental health care outpatient visits, Veterans who believe a 
copayment was applied in error may contact VA to review its 
determination and correct the copayment, if applicable. Information on 
disputing VA copayments can be found on the VA website at www.va.gov/health-care/pay-copay-bill/dispute-charges/ or by contacting the 
Facility Revenue Department at the Veteran's local VAMC.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on May 6, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.
[FR Doc. 2024-10483 Filed 5-29-24; 8:45 am]
BILLING CODE 8320-01-P